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Category Archives: Recent Developments

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Amendments To The Federal Bankruptcy Rules, Plus A New “Free And Clear” Sale Motion Filing Fee, To Take Effect December 1, 2013

Posted in Business Bankruptcy Issues, Recent Developments
Almost 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 mainly affect bankruptcy cases filed… Continue Reading

Video Of Testimony Before ABI Commission To Study Reform Of Chapter 11

Posted in Business Bankruptcy Issues, Recent Developments
As mentioned in a recent blog post, the American Bankruptcy Institute has established a Commission to Study the Reform of Chapter 11. A video of testimony before the Commission’s June 4, 2013 field hearing in New York is available below. At that hearing, I testified on the second panel, discussing intellectual property licenses, their treatment in bankruptcy cases, and… Continue Reading

ABI Commission To Study The Reform Of Chapter 11

Posted in Business Bankruptcy Issues, Recent Developments
The American Bankruptcy Institute has established a Commission to Study the Reform of Chapter 11. This afternoon, June 4, 2013, I will be testifying before the Commission about intellectual property licenses, their treatment in bankruptcy cases, and potential reforms to address several key issues.  Lawrence Gottlieb, my colleague at Cooley LLP in our Corporate Restructuring and Bankruptcy group, will also… Continue Reading

Do Trademark Licensees Have Reason For Hope? New Article Discusses Recent Decisions On Trademark Licenses And Bankruptcy

Posted in Business Bankruptcy Issues, Recent Developments
I have written a number of times on the blog about the impact of bankruptcy on trademark licenses, in particular what happens to trademark licensees whose licensors file bankruptcy. Trademark licensees face a real risk of losing their license rights in bankruptcy since they have no protection under Section 365(n) of the Bankruptcy Code. However, recent decisions, including an important… Continue Reading

Ninth Circuit Opens The Door To Recharacterization Of Debt As Equity

Posted in Business Bankruptcy Issues, Recent Developments
In bankruptcy, prepetition loans made by insiders are often investigated, and sometimes challenged, by debtors, creditors’ committees, or trustees. The two most frequent challenges brought are that (1) the loans in question are not really debt and should be recharacterized as equity, and (2) the debt should be equitably subordinated below the claims of all or some other creditors. Recharacterization focuses… Continue Reading

Spring 2013 Edition Of Bankruptcy Resource Now Available

Posted in Business Bankruptcy Issues, Recent Developments
The Spring 2013 edition of the Absolute Priority newsletter, published by the Bankruptcy & Restructuring group at Cooley LLP, of which I am a member, has now been released. The newsletter gives updates on current developments and trends in the bankruptcy and workout area. Follow the links in this sentence to access a copy of the newsletter. You can… Continue Reading

Seventh Circuit Decision Gives Support To Protecting Buyers In Bankruptcy Sales From Successor Liability

Posted in Business Bankruptcy Issues, Recent Developments
Last week, the U.S. Court of Appeals for the Seventh Circuit addressed whether a buyer of assets outside of bankruptcy (in this case, from a receivership), takes on successor liability for federal Fair Labor Standards Act ("FLSA") claims made by the employees of the company whose assets it purchases. Although the case arose in a receivership, the Seventh Circuit’s opinion provides important… Continue Reading

Official Bankruptcy Forms Revised To Reflect April 1, 2013 Dollar Amount Adjustments

Posted in Business Bankruptcy Issues, Recent Developments
As discussed in an earlier post called "Going Up: Bankruptcy Dollar Amounts Will Increase On April 1, 2013," various dollar amounts in the Bankruptcy Code and related statutory provisions were increased for cases filed on or after today, April 1, 2013. Now several official bankruptcy forms have been revised to reflect these new dollar amounts. The updated… Continue Reading

Going Up: Bankruptcy Dollar Amounts Will Increase On April 1, 2013

Posted in Business Bankruptcy Issues, Recent Developments
It hasn’t gotten much publicity yet, but certain dollar amounts in the Bankruptcy Code will be increased for new cases filed on or after April 1, 2013. Follow this link for a chart listing all of the changes on this Federal Register page, which printed this month’s official notice from the Judicial Conference of the United… Continue Reading

Summer 2012 Edition Of Bankruptcy Resource Now Available

Posted in Business Bankruptcy Issues, Recent Developments, The Financially Troubled Company
The Summer 2012 edition of the Absolute Priority newsletter, published by the Bankruptcy & Restructuring group at Cooley LLP, of which I am a member, has now been released. The newsletter gives updates on current developments and trends in the bankruptcy and workout area. Follow the links in this sentence to access a copy of the newsletter. You can… Continue Reading

Seventh Circuit Bankruptcy Ruling Is Big Win For Trademark Licensees

Posted in Business Bankruptcy Issues, Recent Developments
On July 9, 2012, the U.S. Court of Appeals for the Seventh Circuit issued its decision in Sunbeam Products, Inc. v. Chicago American Manufacturing, LLC, and in doing so handed a major victory to trademark licensees whose licenses are rejected in bankruptcy by trademark owners. A copy of the opinion is available through this link.… Continue Reading

Supreme Court Bids Adieu To Plans Denying Secured Creditors The Right To Credit Bid

Posted in Business Bankruptcy Issues, Recent Developments
On May 29, 2012, only a little more than a month after the April 23, 2012 oral argument in the case, the U.S. Supreme Court issued its decision in RadLAX Gateway Hotel, LLC, et al. v. Amalgamated Bank on the question of "credit bidding." You can get a copy of the opinion by following the link in this sentence.… Continue Reading

Winter 2012 Edition Of Bankruptcy Resource Now Available

Posted in Business Bankruptcy Issues, Recent Developments
The Winter 2012 edition of the Absolute Priority newsletter, published by the Bankruptcy & Restructuring group at Cooley LLP, of which I am a member, has recently been released. The newsletter gives updates on current developments and trends in the bankruptcy and workout area. Follow the links in this sentence to access a copy of the newsletter. You can… Continue Reading

Amendments To Federal Bankruptcy Rules, Official Forms, And Federal Rules Of Evidence Are Now In Effect

Posted in Business Bankruptcy Issues, Recent Developments
Bankruptcy Rule Amendments. As reported in a post last month, this year’s amendments to the Federal Rules of Bankruptcy Procedure have now taken effect today, December 1, 2011. For a discussion of the amended rules, follow the link in this sentence. For the Advisory Committee’s report on the amendments, together with a redline showing the… Continue Reading

Amendments To The Federal Bankruptcy Rules, Including Rule 2019, To Take Effect December 1, 2011

Posted in Business Bankruptcy Issues, Recent Developments
Almost 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. There are seven amendments to the national bankruptcy rules this year. Some affect bankruptcy… Continue Reading

Delaware Supreme Court Affirms Ruling Protecting Managers Of Insolvent LLCs

Posted in Recent Developments, The Financially Troubled Company
Creditor Derivative Claims Against Fiduciaries Of Insolvent Corporate Entities. In a 2007 decision in North American Catholic Educational Programming, Inc. v. Gheewalla, et al., 930 A.2d 92 (Del. 2007), the Delaware Supreme Court held that directors of an insolvent Delaware corporation could be sued derivatively by creditors for breaches of fiduciary duty. For a discussion of the… Continue Reading

Summer 2011 Edition Of Bankruptcy Resource Now Available

Posted in Business Bankruptcy Issues, Recent Developments
The Summer 2011 edition of the Absolute Priority newsletter, published by the Bankruptcy & Restructuring group at Cooley LLP, of which I am a member, has just been released. The newsletter gives updates on current developments and trends in the bankruptcy and workout area. Follow the links in this sentence to access a copy of the newsletter. You… Continue Reading

First Published Court Of Appeals Opinion Issued Answering Whether Trademark Licenses Are Assignable In Bankruptcy

Posted in Business Bankruptcy Issues, Recent Developments
It’s been a long wait, but we finally have a published decision from a U.S. Court of Appeals answering whether a trademark license is assignable in bankruptcy without the licensor’s consent. On July 26, 2011, the U.S. Court of Appeals for the Seventh Circuit issued an opinion in In re: XMH Corp., written by Circuit Judge Richard… Continue Reading

Bankruptcy Judge’s Free Online Research Binder Now Updated

Posted in Business Bankruptcy Issues, Recent Developments
I have posted in the past about the helpful research binder that former Judge Randall J. Newsome of the United States Bankruptcy Court for the Northern District of California had made available on the Bankruptcy Court’s website. Although Judge Newsome has retired from the bench, fortunately Judge Charles Novack, also of the U.S. Bankruptcy Court for the Northern District… Continue Reading

Spring 2011 Edition Of Bankruptcy Resource Now Available

Posted in Business Bankruptcy Issues, Recent Developments, The Financially Troubled Company
The Spring 2011 edition of the Absolute Priority newsletter, published by the Cooley LLP Bankruptcy & Restructuring group, of which I am a member, has just been released. The newsletter gives updates on current developments and trends in the bankruptcy and workout area. Follow the links in this sentence to access a copy of the newsletter. You can also… Continue Reading

Blast From The Past: Website Provides Quick Access To Older Bankruptcy Code Sections

Posted in Business Bankruptcy Issues, Recent Developments
Thanks to Professor Robert Lawless of the University of Illinois College of Law, also of the Credit Slips blog, you can now save yourself from combing through dusty old books to find the language of Bankruptcy Code provisions going back as far as 1980. Need to find how Section 547 was worded prior to the enactment of the Bankruptcy… Continue Reading

New Ruling Finds Important Protection For Managers Of Insolvent Delaware LLCs

Posted in Recent Developments, The Financially Troubled Company
Derivative Claims Against Directors Of An Insolvent Delaware Corporation. With its 2007 decision in North American Catholic Educational Programming, Inc. v. Gheewalla, et al., 930 A.2d 92 (Del. 2007), the Delaware Supreme Court held that directors of an insolvent Delaware corporation could be sued derivatively by creditors for breaches of fiduciary duty. To read that decision,… Continue Reading

Fall 2010 Edition Of Bankruptcy Resource Now Available

Posted in Business Bankruptcy Issues, Recent Developments
The Fall 2010 edition of the Absolute Priority newsletter, published by the Cooley LLP Bankruptcy & Restructuring group, of which I am a member, has just been released. The newsletter gives updates on current developments and trends in the bankruptcy and workout area. Follow the links in this sentence to access a copy of the newsletter or to register to receive future… Continue Reading

Third Circuit Decision Suggests Another Way For Trademark Licensees To Protect Against License Rejection In Bankruptcy

Posted in Business Bankruptcy Issues, Recent Developments
Trademark licensees have long faced the serious risk of losing all license rights to a trademark if the licensor files bankruptcy and rejects the trademark license as an executory contract. However, a recent decision from the U.S. Court of Appeals for the Third Circuit in the In re: Exide Technologies case may give some trademark licensees… Continue Reading