News
Split Among Us Circuit Courts Involving Licensees of a Trademarks
Split among US Circuit Courts of 4th, 7th, 1st Circuit, and maybe 3rd Circuit, as to whether or not the licensee of a trademark has a right to keep using the trademark, when the licensor of the trademark files bankruptcy, and rejects the trademark license contract, pursuant to 11 USC 365. Compare: Lubrizol Enterprises, Inc. v. Richmond Metal Finishers, Inc., 756 F2d 1043 (4th Cir. 1985) (debtor’s rejection of trademark licenses stops non-debtor licensee from continuing to use trademark); In re Sunbeam Products, Inv. v. Chicago American Manufacturing, LLC, 686 F.3d 372 (7th Cir. 2012) (rejection does NOT stop trademark…
Eleventh Circuit Joins Ninth in Allowing Appellate Counsel Fees for a Stay Violation
12/5/17 decision by Eleventh Circuit US Court of Appeals agreed with Ninth Circuit 2015 decision, in In re Schwartz-Tallard, 803 F.3d 1095 (9th Cir. 2015) (en banc), in which the Ninth Circuit US Court of Appeals held that a debtor is entitled to recovery of attorneys’ fees incurred in upholding a judgment for violation of the automatic stay, siding with the Ninth Circuit’s decision. The Dec. 5 opinion for the Eleventh Circuit by District Judge Leigh Martin May, sitting by designation, held that the debtor could recover counsel fees for pursuing a monetary award and appellate counsel fees resulting from…
US Supreme Court Might Grant ‘Petition for Certiorari’ to Hear and Resolve a Split between US Circuit Courts on Dischargeability
The US Supreme Court will decide whether a false oral statement about one asset is grounds for denial of discharge of a debt, IF the justices take the advice of the U.S. Solicitor General and grant certiorari to the Eleventh Circuit in Lamar Archer & Cofrin LLP v. Appling, 16-1215 (Sup. Ct.). The courts of appeals are evenly split, with the Eleventh and Fourth Circuits holding that a false oral statement about one asset is a statement of “financial condition” that must be in writing to result in denial of discharge of a debt under Section 523(a)(2). The Fifth and…
Anti-Suit Injunction Protecting Non-Settling Defendant
US Circuit Court for the Eleventh Circuit holds that Bankruptcy Court has jurisdiction and statutory power to grant an Anti-Suit Injunction Protecting Non-Settling Defendant. The bankruptcy court has both the jurisdiction and statutory power to impose an anti-suit injunction protecting a non-settling defendant from claims by third-party nondebtors, even if the injunction was not part of the parties’ settlement, according to the Eleventh Circuit. Evidently, however, the question was not raised concerning the bankruptcy court’s constitutional power to enter a final order imposing an injunction having the effect of a third-party release. The maddeningly complex procedural history resulted from several…
BREAKING: 9th Circ. Says FCRA Claims Meet Standing Bar In Spokeo Row
The Ninth Circuit ruled on 8/15/17 that a man who accuses Spokeo of violating the Fair Credit Reporting Act by allegedly reporting inaccurate information about him had claimed a sufficiently concrete injury to meet the Article III standing bar established by the U.S. Supreme Court in the dispute last year.
US Supreme Court Rules That Purchaser Of Defaulted Debt Is Not “Debt Collector” Under FDCPA
The US Supreme Court ruled, 6/12/17, in Henson v. Santander Consumer USA Inc., No. 16-349, 2017 BL 198032 (U.S. June 12, 2017), that the purchaser of a defaulted debt is not a “debt collector” subject to the FDCPA. The FDCPA applies to “debt collectors,” a term defined in 15 U.S.C. § 1692a(6) as anyone who “regularly collects or attempts to collect . . . debts owed or due . . . another.” The term includes “any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person…
Midland Funding LLC v. Johnson
US Supreme Court on 5/15/17 issued a decision in Midland Funding LLC v. Johnson holding that Debtor Collectors That Pursue Stale Debt In Bankruptcy cases, by filing a proof of claim on a debt that is beyond the state law statute of limitations, do NOT violate the FDCPA (Fair Debt Collection Practices Act) federal consumer protection statute. US Supreme Court decision reversed an US Circuit Court, Eleventh Circuit, decision that had held that it DID violated the FDCPA for creditors to file proofs of claim in a bankruptcy case, that were past the non-bankruptcy law statute of limitations. Click here…
Circuit Split on Whether or Not Bankruptcy Courts Are “Courts of the United States”
Circuit split on whether or not bankruptcy courts are “courts of the United States”. If they are, Bankruptcy Courts can use 28 USC 1927 (as well as 11 USC 105) to order misbehaving debtors, creditors, and their attorneys to pay monetary sanctions. If Bankruptcy Courts are NOT “courts of the United States”, they cannot use 28 USC 1927, but can still use 11 USC 105. This Circuit split is reported in a 2016 not for publication 6th Circuit case, In re Royal Manor Management (6th Cir. 6/15/16), 652 Fed. App. 330, as follows: There is a split of authority regarding…
Fees to Recover Sanctions Are Permitted under 28 U.S.C. § 1927
Whether a court can award “fees on fees” is a hot topic, exemplified by the US Supreme Court’s decision in Baker Botts LLP v. Asarco LLC , 135 S. Ct 2158 (2015) which holds that retained counsel cannot obtain compensation for successfully defending a fee application. In the appellate context, the Ninth Circuit laid down rules explaining when an injured party can recover fees incurred in obtaining a sanction against an adversary for a frivolous appeal. Essentially, the expense of obtaining a monetary sanction can be recovered if the basis for the award is a fee-shifting statute. If the basis…
US Supreme Court to Hear Oral Argument on 4/18/17 in Henson v. Santander Consumer USA, Inc.
The U.S. Supreme Court today will hear oral argument in a case that looks at whether a company that regularly attempts to collect debts it purchased after the debts had fallen into default is a “debt collector” subject to the Fair Debt Collection Practices Act.