Cadwalader partner Richard Nevins discusses developments in European restructurings with Doug Mintz, Restructuring Review's Co-Editor-in-Chief and Cadwalader Special Counsel.

After a final mediation session between Hostess and its unions failed to put Hostess’s reorganization back on track, Bankruptcy Judge Robert Drain authorized the orderly wind down of Hostess’s operations.  As a result, Hostess will prepare to sell its assets and shut down its factories.  However, a purchaser may seek to restart the production of the beloved baked goods such as Twinkies, Ho-Hos and Donettes.

Reports of Twinkie the Kid’s death have been exaggerated.  Despite widespread mainstream media reports of Hostess’ impending liquidation, the court has not yet approved liquidation.  To the contrary, on November 19, 2012, after a brief hearing on Hostess’s emergency motions to begin the wind down of its operations, Hostess and its two main unions agreed to attend a confidential mediation session.  At the mediation, Bankruptcy Judge Robert Drain intends to determine if the parties can avoid liquidation.

The United States Court of Appeals for the Eighth Circuit recently ruled that a perpetual, royalty-free, and exclusive trademark licensing agreement qualified as an executory contract subject to assumption or rejection under section 365 of the Bankruptcy Code.  The Eighth Circuit’s ruling is seemingly at odds with a 2010 decision by the Third Circuit which found an extremely similar licensing agreement to be non-executory.  These decisions may signal a circuit split on the issue, and in any event, create uncertainty for licensees who have acquired perpetual licenses in connection

Last month the drama surrounding Hostess’s efforts to reject various collective bargaining agreements drew to a close (pending appeal).  Bankruptcy Judge Robert Drain (in an unpublished decision) authorized Hostess to reject its existing CBAs with affiliates of the Bakery, Confectionery, Tobacco and Grain Workers International Union, and modify the terms of its expired CBAs with the Bakers’ Union on an interim basis.  The Bakers Union was the last of Hostess’s major unions holding out and refusing to accept modifications to its CBAs.  See Transcript of Hearing, In re Hoste

Chief Judge Frank Easterbrook of the Seventh Circuit recently created a split of authority regarding the rejection intellectual property licenses in bankruptcy by upholding a decision protecting a trademark licensee’s ability to use a debtor licensor’s trademark after the licensing agreement had been rejected. Chicago American Manufacturing’s licensing contract with debtor Lakewood Engineering & Manufacturing authorized CAM to sell fans under Lakewood’s mark.

Summary

The recent judgment of the Supreme Court in the joined cases of Rubin and another v Eurofinance SA and others and New Cap Reinsurance Corporation (in liquidation) and another v A E Grant and others [2012] UKSC 46, issued on 24 October 2012, established that judgments avoiding pre-bankruptcy transactions (“avoidance judgments”) made by non-EU foreign courts (including U.S. bankruptcy courts) have no special enforceability status in England and Wales compared to ordinary judgments.

On August 2, 2012, the United States Court of Appeals for the Fifth Circuit held that a requirements contract for electricity is a forward contract for purposes of section 546(e) of the Bankruptcy Code and, therefore, settlement payments made under the contract are exempt from avoidance as preferences. Claude Lightfoot v.

On September 25, 2012, Judge D. Michael Lynn for the United States Bankruptcy Court of the Northern District of Texas held that a “tail provision” for professional fees rendered prepetition survived – and was not cut off by – the debtor’s bankruptcy filing.  In re Texas Rangers Baseball Partners, Case No. 10-43400-DML, 2012 WL 4464550 (Bankr. N.D. Tex. Sept. 25, 2012).

Background

On August 28, 2012, the United States District Court for the Northern District of Texas vacated a series of bankruptcy court rulings that had blocked Vitro SAB’s noteholders from filing involuntary bankruptcy petitions against Vitro’s non-debtor subsidiary guarantors.  In a decision authored by Chief Judge Sidney A.