By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent DevelopmentsThe twists and turns of the In re Tempnology LLC bankruptcy case have been a frequent subject on this blog for good reason. The case addresses whether a trademark licensee, whose licensor files bankruptcy and rejects the license agreement, retains any rights to use the trademark — or instead is out of luck. A Wild Ride. The… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent DevelopmentsThe Tempnology Trademark Saga. When it comes to decisions on bankruptcy and trademark licenses, the In re Tempnology LLC bankruptcy case is the gift that keeps on giving. The Original. It all started in November 2015. Following Tempnology’s rejection of an agreement containing a trademark licensee, the New Hampshire Bankruptcy Court ruled that the licensee could no… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent DevelopmentsJust about every year amendments are made to the rules that govern how bankruptcy cases are managed — the Federal Rules of Bankruptcy Procedure. The amendments address issues identified by an Advisory Committee made up of federal judges, bankruptcy attorneys, and others. As the photo above reminds us, the rule amendments are ultimately adopted by… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent DevelopmentsJust about every year changes are made to the rules that govern how bankruptcy cases are managed — the Federal Rules of Bankruptcy Procedure. The revisions address issues identified by an Advisory Committee made up of federal judges, bankruptcy attorneys, and others. Key Rule Amendments. This year the rule amendments address the continuing impact of… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent DevelopmentsThe In re Tempnology LLC bankruptcy case in New Hampshire has produced yet another important decision involving trademarks and Section 365(n) of the Bankruptcy Code. This time the decision is from the United States Bankruptcy Appellate Panel for the First Circuit (“BAP”). Although the BAP’s Section 365(n) discussion is interesting, even more significant is its holding on… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent DevelopmentsAs discussed in an earlier post called “Going Up: Bankruptcy Code Dollar Amounts Will Increase On April 1, 2016,” various dollar amounts in the Bankruptcy Code and related statutory provisions were increased for cases filed on or after today, April 1, 2016. This information sheet has a list of all the dollar amount changes now in… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent DevelopmentsAn official notice from the Judicial Conference of the United States was just published announcing that certain dollar amounts in the Bankruptcy Code will be increased ever so slightly — only about 3% this time — for new cases filed on or after April 1, 2016. Follow this link for the Federal Register page with a chart… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent DevelopmentsA decision last month by the U.S. Bankruptcy Court for the District of New Hampshire serves as a good reminder that, although helpful, Bankruptcy Code Section 365(n)’s protection for intellectual property licensees definitely has its limits. That’s especially true for a commercial agreement whose central purpose is something other than as a technology license. Since we… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent DevelopmentsAlmost every year, changes are made to the set of rules that govern how bankruptcy cases are managed — the Federal Rules of Bankruptcy Procedure. The changes address issues identified by an Advisory Committee made up of federal judges, bankruptcy attorneys, and others. Often there are revisions to the official bankruptcy forms as well. One… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent DevelopmentsThe continuing saga of the impact of the U.S. Supreme Court’s Stern v. Marshall decision took a major turn Tuesday when the Court issued its ruling in the Wellness International Network, Limited v. Sharif case (follow link for copy of opinion). Before considering the decision and its significance, let’s first take a look at some past hits —… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent DevelopmentsWhen an insolvent entity files for bankruptcy, it can be tough to be a creditor. But holding equity — stock in a corporation or a membership interest in an LLC, a limited liability company — can be even worse. Under bankruptcy’s “absolute priority rule,” creditors generally must be paid in full before equity gets anything. That usually… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent DevelopmentsRisky Business. When a debtor is a licensee under a trademark license agreement, does it risk losing those license rights when it files bankruptcy? The question had not been answered in a Delaware bankruptcy case until Judge Kevin Gross recently addressed it in the In re Trump Entertainment Resorts, Inc. Chapter 11 case. A lot was… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent DevelopmentsThe American Bankruptcy Institute‘s Commission to Study the Reform of Chapter 11 issued its report last week, capping more than two years of hearings, meetings, and hard work. Having had the honor of testifying before the Commission on intellectual property and bankruptcy issues at one of its hearings in New York in June 2013, I wanted… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent DevelopmentsAlmost every year, changes are made to the set of rules that govern how bankruptcy cases are managed — the Federal Rules of Bankruptcy Procedure. The changes address issues identified by an Advisory Committee made up of federal judges, bankruptcy attorneys, and others. Rule Amendments. This year the rule amendments, which go into effect on… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent DevelopmentsIf you doubted it before, you can stop now. The trend of courts finding ways to protect trademark licensees from the harsh effects of losing their trademark license rights in bankruptcy is in full swing. The latest example comes in the Crumbs Bake Shop, Inc. Chapter 11 bankruptcy case in New Jersey. On October 31,… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent DevelopmentsOn Monday, October 6, 2014, the U.S. Supreme Court issued an order denying the petition for a writ of certiorari in the Jaffe v. Samsung case, also known as the Qimonda case. The Supreme Court let stand the Fourth Circuit’s December 2013 decision that affirmed the bankruptcy court’s order applying Bankruptcy Code Section 365(n) in… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent DevelopmentsI had the honor of being a panelist at the American Bankruptcy Institute‘s 22nd Annual Southwest Bankruptcy Conference last Friday, speaking on current developments in business bankruptcy. My part of the discussion focused on recent intellectual property and bankruptcy law trends. Among the topics I covered were: the direction U.S. Courts of Appeals have been taking… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent Developments,UncategorizedU.S. District Court in San Francisco Image Courtesy of Ken Lund The Order Re Summary Judgment issued on June 11, 2014 by Judge Charles R. Breyer of the U.S. District Court for the Northern District of California in the Heller Ehrman LLP bankruptcy case may prove to be a knock-out punch against “unfinished business” claims by… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent DevelopmentsImage courtesy of Kazuhisa Otsubo Trademark Licenses At Risk. I have written a number of times on the blog about the impact of bankruptcy on trademark licenses, with a special focus on the risk that trademark licensees face if their licensors file bankruptcy. Trademark licensees have no protection under Section 365(n) of the Bankruptcy Code, and legislative… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent Developments Image Courtesy of Mike M.S. The Stern v. Marshall Decision. In its 2011 decision in Stern v. Marshall, decided by a 5-4 vote, the U.S. Supreme Court held that even though Congress designated certain state law counterclaims as “core” proceedings, Article III of the U.S. Constitution prohibits bankruptcy courts from finally adjudicating those claims. Stern v. Marshall… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent DevelopmentsImage courtesy of Matt H. Wade In December 2013 I wrote about the Innovation Act, H.R. 3309, a bill focused on patent infringement litigation and other patent law reforms that passed the House of Representatives on a bipartisan basis. My interest in the bill was because it would make the most sweeping changes to the… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent Developments It seems that most bankruptcy decisions by the U.S. Supreme Court involve individual debtors, and the Supreme Court’s latest opinion is no exception. Even though the decision is not in a business bankruptcy case, it examines the bankruptcy court’s powers under Section 105(a) of the Bankruptcy Code. Section 105(a) is commonly invoked in business bankruptcy… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent DevelopmentsI’m pleased to let you know that the Corporate Restructuring and Bankruptcy Group at Cooley LLP, of which I am a member, has just launched the new Absolute Priority blog, the new format going forward for our group’s popular Absolute Priority newsletter. Follow the link in the prior sentence to visit the new Absolute Priority blog and,… Continue Reading
By Bob Eisenbach on Posted in Business Bankruptcy Issues,Recent DevelopmentsI hope you had a wonderful holiday season and Happy New Year everyone. To start the new year off, the Winter 2014 edition of the Absolute Priority newsletter, published by the Bankruptcy & Restructuring group at Cooley LLP, of which I am a member, has been released. The newsletter gives updates on current developments and trends in the bankruptcy… Continue Reading
