Business

This panel will discuss recent developments in bankruptcy court class actions, including class proofs of claim, class settlements embedded in chapter 11 plans, arbitration and class action waivers, and jurisdictional issues affecting a bankruptcy court’s authority to preside over putative nationwide class actions by debtors for discharge violations and other similar claims.

This panel will discuss the retention issues under Section 327 v. 362, Jay Alix Protocol, and other retention topics.

The First Circuit Court of Appeals decision in Mission Product Holdings Inc. v. Tempnology LLC held that the absence of trademarks from the definition of intellection property in § 101(35A) of the Bankruptcy Code means that, unlike other types of intellectual property, a licensor’s rejection of a trademark license deprives its licensee of any right to continued use of the mark. The Supreme Court has accepted certiorari in the case and is expected to issue a decision late this Spring on the question of whether, under Bankruptcy Code § 365, a debtor-licensor’s rejection of a license terminates rights of the licensee that would survive the licensor’s breach under nonbankruptcy law. This panel will analyze the reach of the question presented, examine the arguments briefed, interpret the scope and breadth of the Court’s decision (assuming it is rendered before the term concludes), and consider the implications for commercial licensing and bankruptcy administration.

ABCs and state receiverships are not the only chapter 11 alternatives. With even middle-market companies having widely held and tradeable note instruments, the exchange offer provides an out-of-court alternative that, if successful, can provide most of the benefits of a confirmed chapter 11 plan, and if unsuccessful, can still provide the basis for a confirmable prepackaged plan. The panel will provide an introduction to exchange offers: the goals, mechanics and documents. The panel will also explore the current thinking on the short reach of the Trust Indenture Act in exchange offers after the Second Circuit Court of Appeals’ decision in Marblegate Asset Management vs. Education Management Corp. In addition, the panel will explore opportunities to use strict foreclosure and other consensual, or nonconsensual, workouts, wind-downs and liquidations to maximize value.