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Intellectual Property and Trademarks in Bankruptcy
No bankruptcy lawyer can represent a high-tech debtor or a business that licenses consumer brands without understanding the interplay of intellectual property law and the Bankruptcy Code. For reorganizations with intellectual property issues, choice of venue is a critical early decision that can determine the outcome of a case. This program will review the circuit-level split over the Catapult doctrine and discuss contractual and litigation solutions for the reorganization of debtor businesses that are dependent on critical patent inbound licenses. The program will review the limits of protections for nondebtor patent and copyright licensees under Bankruptcy Code § 365(n) and will discuss the recent circuit-level split over the effect of contract rejection on the rights of nondebtor trademark licensees.
Complex Commercial Valuation
No business chapter 11 case gets resolved without some determination of value. This panel of valuation experts and lawyers will discuss complex commercial valuation issues, including: (1) the multiple approaches to value (i.e., discounted cash flow, comparable company) and how to reconcile those values; (2) how the purpose of valuation affects the selection of the valuation methodology; (3) the most common places to probe when challenging a valuation; and (4) standard of value (fair market value, investment value or something else) and premise of value (going concern vs. liquidation), and the implications on the valuation assignment. The panel will also discuss recent case law addressing valuation contests during the life of a case, including the timing of valuations and the impact of the differing values on secured parties’ rights in chapter 11 cases.
Secured Claims: Determination of Secured Status, Make-Whole Provisions, Yield Maintenance and Credit-Bidding
The determination of the amount of a secured creditor’s claim and related issues often have a significant impact on both junior creditor recoveries and the likelihood of a successful reorganization. Such cases as Gencarelli, School Specialty, Momentive Performance Materials and MPM Silicones regarding “make whole” or “yield maintenance” provisions, as well as cases like SW Boston relating to the calculation of oversecured or undersecured status, have led to further uncertainty in this area. These provisions are under increasing attack as debtors attempt to refinance high-yield debt in today’s lower-interest-rate environment. Finally, the recent decisions in Fisker Automotive Holdings, Free Lance-Star Publishing and RML Development have raised uncertainty in the area of credit-bidding.
The Difficult Client (Ethics)
This program will address the ethical challenges to practitioners when dealing with difficult clients, ranging from the bully client to a client with a questionable background or a client that is being less than truthful. In a tough legal market when work is needed, client selection sometimes gets overlooked. This program will address what to do with a difficult client once engaged — and when it’s time to part company and how to do so. Finally, the program will also cover the ethical boundaries that sometimes get blurred by overzealous clients.
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