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    Lease Profit-Sharing Provision Unenforceable Condition to Assignment in Bankruptcy
    2018-02-02

    In Antone Corp. v. Haggen Holdings, LLC (In re Haggen Holdings, LLC), 2017 WL 3730527 (D. Del. Aug. 30, 2017), the U.S. District Court for the District of Delaware considered whether, as part of a bankruptcy asset sale, a chapter 11 debtor could assume and assign a nonresidential real property lease without giving effect to a clause in the lease requiring the debtor to share 50 percent of any net profits realized upon assignment.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Jones Day, Bankruptcy, US District Court for District of Delaware
    Authors:
    Isel M. Perez
    Location:
    USA
    Firm:
    Jones Day
    Fraudulent Transfer Avoidance Recovery Not Limited to Total Amount of Creditor Claims
    2018-02-02

    Courts disagree as to whether the amount that a bankruptcy trustee or chapter 11 debtor-in-possession ("DIP" ) can recover in fraudulent transfer avoidance litigation should be capped at the total amount of unsecured claims against the estate. A Delaware bankruptcy court recently weighed in on this issue in PAH Litigation Trust v. Water Street Healthcare Partners, L.P. (In re Physiotherapy Holdings, Inc.), 2017 WL 5054308 (Bankr. D. Del. Nov. 1, 2017). Noting the absence of any guidance on the question from the U.S.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White Collar Crime, Jones Day, Debtor in possession, Federal Deposit Insurance Corporation (USA), Title 11 of the US Code, United States bankruptcy court, US District Court for District of Delaware, US District Court for the Southern District of New York
    Authors:
    Jane Rue Wittstein , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Eighth Circuit Court of Appeals Rejects “Reasonably Foreseeable” Standard for Extent of Notice to Creditors
    2018-02-06

    The Eight Circuit Court of Appeals recently weighed in on the extent to which a debtor must search for “known” creditors in order to provide sufficient notice of its bankruptcy and satisfy due process. In Dahlin v. Lyondell Chemical Co., ___ F.3d ___ (8th Cir. Jan. 26, 2018), the Eighth Circuit determined that a “known” creditor is one that is reasonably ascertainable, and a debtor need not perform more than one reasonably diligent search to unveil the identity of “known” creditors.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Briggs and Morgan, Eighth Circuit
    Authors:
    Bryce Jasper , Benjamin E. Gurstelle
    Location:
    USA
    Firm:
    Briggs and Morgan
    First Circuit Further Limits Remedies Following Trademark License Rejection
    2018-02-08

    Section 365(a) of the Bankruptcy Code is a powerful tool which enables a debtor to reject certain contracts it finds unnecessary or burdensome to its reorganization.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Troutman Pepper
    Authors:
    Francis J. Lawall , Marcy J. McLaughlin
    Location:
    USA
    Firm:
    Troutman Pepper
    Third-Party Releases in Chapter 11 Plans
    2018-02-08

    U.S. Bankruptcy Judge Kevin Gross sitting in Delaware recently approved J.G. Wentworth’s (the “Debtor’s”) Chapter 11 plan after overruling an objection from the U.S. Trustee regarding third-party releases. The Debtor’s Chapter 11 reorganization plan was the second it has brought before the Delaware bankruptcy court in the last ten years.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Hogan Lovells, United States bankruptcy court
    Location:
    USA
    Firm:
    Hogan Lovells
    In Case You Missed It - PACA Trust Rights in Bankruptcy are Just Plain Old Secured Claims
    2018-02-01

    Happy 2018! We at The Bankruptcy Cave have been itching to write about the Cherry Growers Chapter 11 case - which really is ground-breaking - but the holidays, life, and yes, work for clients too, all just got in the way. But with each passing week, the case stayed on our minds. So now that time permits, here is the writeup - and see below for the remarkable significance of the case.

    Filed under:
    USA, Michigan, Company & Commercial, Insolvency & Restructuring, Litigation, Bryan Cave Leighton Paisner (Bryan Cave)
    Authors:
    Mark I. Duedall , Leah Fiorenza McNeill
    Location:
    USA
    Firm:
    Bryan Cave Leighton Paisner (Bryan Cave)
    Are Trademark Licenses Protected In A Licensor Bankruptcy? The Circuits Are Split.
    2018-02-01

    Certain licensees of intellectual property are expressly given expanded rights when their licensors file bankruptcy. But what about trademark licensees? Trademarks are not among the defined categories of “intellectual property” for bankruptcy purposes. Nonetheless, are trademark licensees otherwise protected in a licensor bankruptcy? Unfortunately for these licensees, a recent circuit court decision put the brakes on attempts to expand protection to licensees of trademarks.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Trademarks, Squire Patton Boggs, US Congress, Seventh Circuit, First Circuit
    Authors:
    Mark A. Salzberg
    Location:
    USA
    Firm:
    Squire Patton Boggs
    The First Circuit Joins Several Other Circuit Courts in Finding That Creditors’ Committees Have an Unconditional Right to Intervene in Adversary Proceedings
    2018-01-23

    On September 22, 2017, the First Circuit Court of Appeals held that § 1109(b) of the Bankruptcy Code (the “Code”) provides a creditors’ committee with an “unconditional right to intervene” in an adversary proceeding.[1]  In reaching this conclusion, the court reversed the District Court for the District of Puerto Rico’s order denying an intervention motion and distinguished its own precedent, on which the District Court had relied.  This decision further bolsters the right of creditors’ com

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Caplin & Drysdale, Chartered, Bankruptcy, Federal Rules of Civil Procedure (USA), Second Circuit, Third Circuit, First Circuit
    Authors:
    Todd E. Phillips , Kevin C. Maclay , Sally J. Sullivan
    Location:
    USA
    Firm:
    Caplin & Drysdale, Chartered
    First Circuit Rejects Seventh Circuit’s Approach to Rejection of Trademark Licenses: Licensees Retain No Post-Rejection Trademark Rights
    2018-01-25

    In one of the first decisions issued this year by the United States Court of Appeals for the First Circuit, the court addressed an issue of first impression. In Mission Products Holdings, Inc. v. Tempnology, LLC, n/k/a Old Cold LLC, No. 16-9016 (1st Cir. Jan. 12, 2018), the First Circuit held that the omission of trademarks from the definition of “intellectual property” in Section 101(35A) of the Bankruptcy Code, as incorporated by Section 365(n), leaves a trademark licensee with nothing more than a claim for damages upon the rejection of its license under Section 365(a).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Trademarks, Duane Morris LLP, United States bankruptcy court, Seventh Circuit, First Circuit
    Location:
    USA
    Firm:
    Duane Morris LLP
    10th Circuit says FDCPA does not cover non-judicial foreclosures
    2018-01-25

    On January 19, the U.S. Court of Appeals for the 10th Circuit affirmed a lower court decision that the Fair Debt Collection Practices Act (FDCPA) does not cover non-judicial foreclosures in Colorado.

    Filed under:
    USA, Colorado, Company & Commercial, Insolvency & Restructuring, Litigation, Orrick, Herrington & Sutcliffe LLP, Foreclosure, Fair Debt Collection Practices Act 1977 (USA), Tenth Circuit
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP

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