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    Fifth Circuit Embraces Flexible Approach to Countryman Test of Executoriness in Bankruptcies Involving Multiparty Contracts
    2022-12-05

    Whether a contract is "executory" such that it can be assumed, rejected, or assigned in bankruptcy is a question infrequently addressed by the circuit courts of appeals. The U.S. Court of Appeals for the Fifth Circuit provided some rare appellate court-level guidance on the question in Matter of Falcon V, L.L.C., 44 F.4th 348 (5th Cir. 2022). The Fifth Circuit affirmed lower-court rulings determining that a surety contract was not executory because the surety had already posted irrevocable surety bonds and did not owe further performance to the debtors.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day, NLRB, US Congress, SCOTUS, United States bankruptcy court, Fifth Circuit, Third Circuit
    Authors:
    Dan B. Prieto , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Top 10 Questions Human Resources May Have When Their Company is Filing for Chapter 11 Protection
    2020-06-02

    Businesses in a wide range of industries may now be forced to consider bankruptcy given the unprecedented economic challenges caused by the COVID-19 pandemic. This advisory is designed to provide a high-level view of issues to be considered by human resources when considering filing for Chapter 11 bankruptcy. Please note that this advisory focuses specifically on a Chapter 11 bankruptcy (pursuant to which a business will be reorganized) rather than Chapter 7 bankruptcy (pursuant to which a business will be liquidated).

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Mintz, Coronavirus, Title 11 of the US Code, Equal Employment Opportunity Commission (USA), NLRB
    Authors:
    William W. Kannel
    Location:
    USA
    Firm:
    Mintz
    National Labor Relations Board v. Calvert
    2017-04-10

    (S.D. Ind. Mar. 31, 2017)

    The district court affirms the bankruptcy court’s ruling in favor of the debtor in the nondischargeability action. The NLRB argued its claim against the debtor should be denied under 11 U.S.C. § 523(a)(6). The court holds that the prepetition administrative ruling finding the debtor acted out of “antiunion animus” did not necessarily satisfy the requisite intent required under § 523(a)(6). Collateral estoppel did not apply. Opinion below.

    Judge: Barker

    Attorneys for NLRB: Dalford D. Owens , Jr., William R. Warwick

    Filed under:
    USA, Indiana, Insolvency & Restructuring, Litigation, Stoll Keenon Ogden PLLC, NLRB
    Authors:
    Matt Lindblom
    Location:
    USA
    Firm:
    Stoll Keenon Ogden PLLC
    Bankruptcy and Labor Law: Decision by Appeals Court Permits Debtor to Discharge an NLRB Fine in Bankruptcy
    2019-02-07

    If the National Labor Relations Board (“NLRB”) fines an employer for unlawfully firing workers who tried to unionize, can the employer discharge the fine in bankruptcy, or will the exception to discharge found in Bankruptcy Code section 523(a)(6) apply?

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, NLRA, NLRB, United States bankruptcy court, Seventh Circuit
    Authors:
    Samuel J. Kwak , Daniel A. Lowenthal
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Fifth Circuit Holds Asset Purchaser Unable To Acquire Rejected License Agreement
    2018-11-02

    A license agreement “deemed rejected by operation of law” could not be acquired under a court-approved asset purchase agreement, held the U.S. Court of Appeals for the Fifth Circuit on Oct. 29, 2018. In re Provider Meds LLC, 2018 WL 5317445, *2 (5th Cir. Oct. 29, 2018). Although the acquirer claimed “that it purchased a patent license from [the] debtors in bankruptcy sales of their estates,” the court explained that “a rejected executory contract … could not have been transferred by the bankruptcy sales in question … .” Id., at *1.

    Filed under:
    USA, Connecticut, Insolvency & Restructuring, Litigation, Patents, Schulte Roth & Zabel LLP, NLRB, Fifth Circuit, First Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Doing business in the United States 2021
    2021-01-15

    Doing business in the United States

    2021

    2

    Hogan Lovells

    Doing business in the United States 2021

    3

    Contents

    Introduction1

    I.Openness of U.S. markets to foreign investment

    2

    II.Direct or indirect market entry and choice of entity

    8

    III. Commercial contracting

    20

    IV.Labor and employment law considerations

    26

    V.Immigration laws

    34

    VI.Intellectual property laws

    40

    VII. Export control and economic sanction laws

    46

    VIII. U.S. antitrust laws

    56

    Filed under:
    USA, Capital Markets, Company & Commercial, Competition & Antitrust, Copyrights, Corporate Finance/M&A, Designs and trade secrets, Employment & Labor, Healthcare & Life Sciences, Immigration, Insolvency & Restructuring, Litigation, Patents, Trade & Customs, Trademarks, White Collar Crime, Hogan Lovells, Medicare, Bribery, Corporate governance, Money laundering, Due diligence, Non-disclosure agreement, Cybersecurity, Coronavirus, Personal protective equipment, Fair Labor Standards Act 1938 (USA), Foreign Corrupt Practices Act 1977 (USA), CARES Act 2020 (USA), Internal Revenue Service (USA), US Securities and Exchange Commission, Federal Trade Commission (USA), Equal Employment Opportunity Commission (USA), US Department of Justice, Office of Foreign Assets Control (USA), US DoL, NLRB, Microsoft, Committee on Foreign Investment in the United States
    Location:
    USA
    Firm:
    Hogan Lovells
    Tax controversy and litigation newsletter
    2020-11-19

    TAX CONTROVERSY AND LITIGATION NEWSLETTER

    ----------

    Focus on Tax Controversy

    NOVEMBER 2020\\VOLUME 4\\ISSUE 3

    IN THIS ISSUE

    ARTICLES AND UPDATES Bankruptcy Court's Jurisdiction To Resolve Tax Claims2 FAQs Issued Under The CARES Act Invalid Under The APA8 Tax Court Concludes IRS Failed to Satisfy 675111

    Penalty For Failure To File Form 5471 Is Not Divisible 14 Sixth Circuit Rejects Taxpayer's Judicial Estoppel Claim17

    ABOUT US Winston & Strawn's Tax Controversy and Litigation Practice 20

    Editors 20

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Tax, Winston & Strawn LLP, Employee Retirement Income Security Act 1974 (USA), Mediation, Coronavirus, Title 11 of the US Code, CARES Act 2020 (USA), Internal Revenue Service (USA), NLRB, Sixth Circuit
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    Section 1113 applies to expired collective bargaining agreements
    2014-11-19

    Recently, in the case of In re Trump Entertainment Resorts, Bankruptcy No. 14-12103 (Bankr. D. Del. 2014), 2014 Bankr. LEXIS 4439 (Bankr. D. Del. October 20, 2014), the U.S. Bankruptcy Court for the District of Delaware addressed the issue of whether a debtor has the authority to reject an expired collective bargaining agreement pursuant to Section 1113 of the Bankruptcy Code.

    Filed under:
    USA, Delaware, Employment & Labor, Insolvency & Restructuring, Litigation, Duane Morris LLP, Collective bargaining, NLRB
    Authors:
    Lawrence J. Kotler
    Location:
    USA
    Firm:
    Duane Morris LLP
    The Unredeemable Debtor
    2022-05-27

    The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race.

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Nelson Mullins Riley & Scarborough LLP, Bankruptcy, NLRB
    Location:
    USA
    Firm:
    Nelson Mullins Riley & Scarborough LLP
    "Work-for-Hire" Film Production Agreement Not Executory Contract in Bankruptcy Due to Lack of Mutual Continuing Material Obligations
    2021-09-23

    Whether a contract is "executory" such that it can be assumed, rejected, or assigned in bankruptcy is a question infrequently addressed by the circuit courts of appeals. The U.S. Court of Appeals for the Third Circuit provided some rare appellate court-level guidance on the question in Spyglass Media Group, LLC v. Bruce Cohen Productions (In re Weinstein Company Holdings LLC), 997 F.3d 497 (3d Cir. 2021).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, NLRB, SCOTUS, Third Circuit
    Authors:
    Daniel J. Merrett (Dan) , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
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