In a June 18, 2007 decision in In re J.Z. L.L.C. (available here), the Bankruptcy Appellate Panel (BAP) of the U.S. Court of Appeals for the Ninth Circuit faced an interesting question: Did the so-called "ride through" doctrine from the old Bankruptcy Act of 1898 survive enactment of the Bankruptcy Code in 1978? The BAP’s introduction to the decision sums up its answer:

We confront the puzzle of the status of an executory contract that was neither assumed nor rejected during a chapter 11 case in which there was a confirmed plan that did not involve transfers of property of the estate or creation of new entities. We conclude that the “ride through” doctrine developed under the former Bankruptcy Act retains vitality in chapter 11 cases when the debtor continues operating and does not change form.

After a chapter 11 case was closed, the reorganized debtor sued in state court to enforce a license that it had granted prepetition regarding the use of its manufacturing technology. The state court declined to act without a bankruptcy court ruling that the license, which had been neither assumed nor rejected during the chapter 11 case, remained in effect. The bankruptcy court ruled that the license contract survives under the “ride through” doctrine, that the debtor has standing to enforce the contract because all property of the estate vested in the debtor on confirmation, and that the reorganized debtor should not be judicially estopped. We AFFIRM.

Executory Contracts And Bankruptcy. I have previously discussed the importance of executory contracts in bankruptcy, and specifically how licenses of intellectual property are treated. Both of those posts were premised on the bankruptcy court being asked to decide whether an intellectual property license could be assumed, assumed and assigned, or rejected during the bankruptcy. This case, however, presented a very different situation in which the Chapter 11 debtor did not take any action during the Chapter 11 case to assume or reject the executory contract (here a license agreement permitting the non-debtor party to manufacture, promote, and sell a horizontal grinder on an exclusive basis for five years). In addition, although aware of the bankruptcy case, the non-debtor party to the contract also did not seek to force a decision on assumption or rejection pursuant to Section 365(d)(2).

The BAP’s Reasoning. The BAP’s 28-page decision carefully analyzes the issues raised in the case and makes a number of interesting conclusions.

  • First, not only did the debtor neither assume nor reject the license agreement, it also failed to list it on its bankruptcy schedules (specifically Schedule G). Nevertheless, the BAP held that the non-debtor licensee’s failure to disclose it to the Bankruptcy Court or creditors left it "in the grandstand and not on the playing field" on its argument that the debtor should lose the right to enforce the agreement.
  • Second, even though the license agreement was unscheduled, once the debtor’s Chapter 11 plan was confirmed, all property of the estate — including this unscheduled asset — revested in the reorganized debtor under Section 1141(b) of the Bankruptcy Code.
  • Third, while judicial estoppel can sometimes apply to limit the debtor’s ability to sue on an unscheduled asset,  the BAP decided against applying judicial estoppel here, noting that when creditors could be harmed by such limits one "should not become so angry at a debtor that a creditor is taken out and shot." The BAP did acknowledge that the state court hearing the debtor’s lawsuit against the licensee could reach a different conclusion.
  • Fourth, under the language and structure of the Bankruptcy Code, an "executory contract that is not assumed in a chapter 11 case is not ‘deemed rejected.’ As a matter of straightforward statutory construction, it follows that some other alternative, i.e., ‘ride through,’ must be available."
  • Fifth, the "ride through" or "pass through" doctrine was well established under the Bankruptcy Act of 1898 and nothing in the Bankruptcy Code of 1978 requires a conclusion that Congress intended to disturb that existing doctrine. In addition, the lack of clarity over which contracts are executory and which are non-executory (and thus not subject to assumption or rejection) bolsters the view that a "ride through" alternative exists for contracts.

For more background on the Bankruptcy Court’s decision below (available here), affirmed by the BAP, be sure to read Warren Agin’s December 2006 post on his Tech Bankruptcy Blog, which gives his always insightful perspective on these IP and bankruptcy issues. 

Significance Of A BAP Decision. It’s worth noting that unlike a U.S. Court of Appeals, the BAP is made up of bankruptcy judges only, not federal circuit judges. Given a BAP’s place in the judicial system’s hierarchy, its decisions are not given the same precedential weigh as U.S. Court of Appeals decisions. This means that it’s possible that the U.S. Court of Appeals for the Ninth Circuit could reach a different, and overruling, conclusion. However, the BAP’s decision in this case is well-reasoned and three other circuits (the First, Second, and Fifth) have also ruled that the ride through doctrine still applies today. This makes the BAP’s decision of special interest.

A Strategic Use Of The "Ride Through" Doctrine? As discussed in an earlier post on assumption of IP licenses, in several circuits a debtor cannot even assume many in-licenses of intellectual property without the licensor’s consent.

  • In those circuits, a debtor may consider whether it could retain licenses simply by choosing to have them "ride through" the Chapter 11 case, neither moving to assume the license nor (the debtor hopes) having the licensors move to compel rejection. This scenario makes the old "ride through" doctrine of particular interest, especially if the debtor licensee has not defaulted under the agreement and is seeking only to keep the license agreement after reorganizing in Chapter 11.
  • While it’s true that the occasional executory contract may slip through without a formal decision to assume or reject, it’s the prospect of a debtor being able to use the doctrine as alternative way of preserving valuable intellectual property licenses that has bankruptcy lawyers giving the "ride through" doctrine a closer look.

Stay tuned, but the BAP’s decision in In re JZ L.L.C. may encourage more such efforts in the future.