Business Bankruptcy Issues

Winter 2014 Edition Of Bankruptcy Resource Now Available

Bob Eisenbach — Thu, 02 Jan 2014 19:10:42 +0000

I 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 and workout area. Follow the links in this…

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Innovation Act, Passed By The House, Would Make Major Changes To Section 365(n)’s IP Licensee Protections

Bob Eisenbach — Tue, 17 Dec 2013 12:35:06 +0000

It isn’t law yet, but on December 5, 2013, the U.S. House of Representatives passed a significant patent reform bill known as the "Innovation Act." Although the focus of the legislation is on patent infringement litigation and other patent law revisions, the Innovation Act, H.R. 3309, would also make major changes to Section 365(n) of the Bankruptcy Code. Follow the link in the prior sentence for…

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When Worlds Collide, The Sequel: Fourth Circuit Rules On Section 365(n)’s IP Licensee Protections In Chapter 15 Cross-Border Bankruptcy

Bob Eisenbach — Tue, 10 Dec 2013 14:41:20 +0000

My how time flies in protracted bankruptcy litigation. More than four years ago, as I reported back at the time, the Bankruptcy Court in the Chapter 15 cross-border bankruptcy case of Qimonda AG issued its first decision on the application of Section 365(n) in that case. After an initial appeal, a four-day trial on remand, and another appeal, last week the U.S. Court of Appeals for the Fourth…

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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

Bob Eisenbach — Tue, 19 Nov 2013 16:45:00 +0000

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 by individuals. There are also some…

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DIP Financing: How Chapter 11’s Bankruptcy Loan Rules Can Be Used To Help A Business Access Liquidity

Bob Eisenbach — Tue, 05 Nov 2013 16:30:25 +0000

Cash Is King. An army may march on its stomach, but for companies, it’s liquidity that keeps the business going. For many companies, typical sources of liquidity, beyond cash flow from sales or other revenue, are (1) financing from banks or other secured lenders, (2) credit from vendors that can reduce immediate liquidity needs, and (3) when needed, loans from owners, investors, or other insiders.

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The Privilege Is All Mine: What Happens To A Corporation’s Attorney-Client Privilege In Bankruptcy?

Bob Eisenbach — Mon, 29 Jul 2013 11:25:03 +0000

It’s well-established that a corporation has an attorney-client privilege and can assert it to keep communications between the corporation and its attorneys confidential. When a corporation is solvent, its officers and directors maintain the right to assert — or waive — the attorney-client privilege on behalf of the corporation, and control who has access to privileged communications.

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

Bob Eisenbach — Fri, 07 Jun 2013 13:59:34 +0000

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. More information on the Commission and its work, together with access to the video and written testimony of all panelists at the Commission’s hearings…

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ABI Commission To Study The Reform Of Chapter 11

Bob Eisenbach — Tue, 04 Jun 2013 11:42:32 +0000

The American Bankruptcy Institute has established a Commission to Study the Reform of Chapter 11. More information on the Commission and its work, together with access to the testimony of all panelists at the Commission’s hearings, is available at the Commission’s website. A copy of my testimony is also available by following the link in this sentence.

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

Bob Eisenbach — Thu, 23 May 2013 17:58:06 +0000

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 decision…

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Ninth Circuit Opens The Door To Recharacterization Of Debt As Equity

Bob Eisenbach — Wed, 08 May 2013 16:52:06 +0000

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.

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