http://blogs.abiworld.org/ ABI Bankruptcy Blog Exchange » Tech Bankruptcy Gregarius 0.5.4 en http://tech-bankruptcy.blogspot.com/2009/08/chapter-11-trustee-appointed-in-sco.html Mon, 24 Aug 2009 23:54:00 -0700 http://tech-bankruptcy.blogspot.com/2009/08/chapter-11-trustee-appointed-in-sco.html CO filed a Chapter 11 petition in order to protect the company while the litigation continued. SCO is represented by Laura Davis Jones of Puchulski Stang Ziehl & Jones, LLP.
In May, the U.S. Trustee's Office in Delaware filed a motion to convert the long-standing Chapter 11 case to Chapter 7. Declining to institute such a drastic remedy, Judge Gross instead ordered a Chapter 11 bankruptcy trustee appointed. More detailed information about the decision can be found here on Groklaw. Although the order has not been appealled, a trustee has not yet been appointed.

Meanwhile, Steven Vaughan-Nichols' blog in Computerworld reports that SCO actually won a minor victory of sorts in its litigation with Novell, as the Court of Appeals reverses a prior summary judgment decision against SCO. ]]> http://tech-bankruptcy.blogspot.com/2009/04/supreme-court-denies-cert-in-ncp.html Sun, 19 Apr 2009 06:42:00 -0700 http://tech-bankruptcy.blogspot.com/2009/04/supreme-court-denies-cert-in-ncp.html here. Robert Eisenbach provides a detailed analysis of why this is significant in a March 26, 2009, post on his In the Red Blog.
In a nutshell, the NCP Marketing case dealt with the ability of a debtor to assume a trademark license. The bankruptcy court held that the license had been terminated pre-petition, and therefore could not be assumed. It also stated, in dicta, (and in my opinion incorrectly) that the trademark license was not assignable as a matter of common law and therefore, under applicable law in the 9th circuit, not assumable. Appeals ensued and the decision was affirmed at each step. 
What makes the denial of certiorari in this case interesting is that two justices, Kennedy and Breyer, felt the need to issue a statement on the matter. While they agreed that denial of certiorari was appropriate in this particular case, they welcomed the opportunity to hear a case on the issue of whether the actual test or the hypothetical test is the correct test for analyzing section 365(c). And, from Judge Kennedy's comments, it seemed likely that they would support adoption of the actual test.
I would note that these are only two justices and they are among those more likely to support the policy driven reasons for adopting the actual test as opposed to the strict statutory construction theories behind the hypothetical test. On the other hand, only four Justices are needed to grant certiorary and it seems likely that Kennedy and Breyer would not have signaled their interest in taking a case on this issue if they expected the outcome to go against their viewpoints. ]]> http://tech-bankruptcy.blogspot.com/2009/04/article-on-ip-licenses-and-bankruptcy.html Fri, 10 Apr 2009 06:59:00 -0700 http://tech-bankruptcy.blogspot.com/2009/04/article-on-ip-licenses-and-bankruptcy.html Marc Barreca of K&LGates and John Knapp of Cairncross & Hemplemann, recently teamed up to author a useful article on the current state of intellectual property licenses and bankruptcy.
The article provides an introduction to the basic legal issues. With each topic, the article lists a number of useful practice tips. The practice tips might be the best part of the article, since they are easy to understand (even when the underlying legal concepts are not), and provide practical, not legalistic, advice.  Some of these tips address issues relevant to the initial license negotiations, while others focus on what to do when the other party to the license actually files a bankruptcy petition. ]]> http://tech-bankruptcy.blogspot.com/2009/03/charter-communications.html Tue, 31 Mar 2009 11:41:00 -0700 http://tech-bankruptcy.blogspot.com/2009/03/charter-communications.html Charter Communications, Inc. filed a chapter 11 petition on Friday in the Southern District of New York. According to the firm's press release, the company has already negotiated a restructuring plan, which it filed along with its other first day motions.  ]]> http://tech-bankruptcy.blogspot.com/2009/03/moving-out-azteca-mobile-skyward-mobile.html Fri, 20 Mar 2009 23:43:00 -0700 http://tech-bankruptcy.blogspot.com/2009/03/moving-out-azteca-mobile-skyward-mobile.html filed a Chapter 7 petition in Kansas City at the beginning of the month. Azteca sold prepaid phone cards for the Sprint Nextel network, and focused on the US to Mexico market.
Closer to my home, Skyward Mobile, LLC filed a chapter 7 petition in Massachusetts. Skyward built mobile applications, including games, for use on cell phones.
Yesterday, Reuters reported that Progressive Gaming International Corp., which makes technology products for the casino industry, filed a chapter 7 petition. The petition was filed in the District of Nevada. The bulk of its assets were apparently foreclosed on in January.
Are you seeing a trend here? For all you real bankruptcy lawyers, all is not lost.

According to the Associate Press, North American Scientific, Inc., a provider of products and services for cancer treatment, filed a chapter 11 petition in the Central District of California on March 12. The company plans to reorganize.

]]> http://tech-bankruptcy.blogspot.com/2009/03/cant-gamble-with-your-domain-names.html Sun, 15 Mar 2009 03:36:00 -0700 http://tech-bankruptcy.blogspot.com/2009/03/cant-gamble-with-your-domain-names.html reported on a rather unusual decision by a Kentucky Judge holding that domain names were "gambling devices" under Kentucky law. In the case, Kentucky v. 141 Internet Domain Names, Judge Wingate considered a request by the Commonwealth of Kentucky that he order in rem seizure of several domain names under a state statute allowing seizure of gambling devices. Judge Wingate granted the request, finding that the domain names (which led to on-line gambling websites) were gambling devices, and that the state had in rem jurisdiction over the names despite the fact that the defendants, registrars and registries were all located outside the state. He ordered the relevant registries (most of the registrars being located outside the United States) to turn control of the domain names over to the Commonwealth of Kentucky.If you like to play poker online, you can now breath easy. On January 20, 2009, an appellate panel held in a four to one opinion that "it stretches credulity to conclude that" a domain name could be a gambling device under the state's statutory definition. Thus, the lower court lacked in rem jurisdiction over the domain names. Interactive Media Entertainment v. Wingate, 2009 WL 142995 (Ky App. 2009). One judge, more credulous that the others, disagreed, stating that the entire compilation of the gambler's computer, gambling site's computers, software and domain name constituted a gambling device and the court could exercise jurisdiction over just the domain name portion of the "device."The conclusion was clear enough though. You can't gamble with your domain name. ]]> http://tech-bankruptcy.blogspot.com/2009/03/customer-data-just-goes-out-door-at.html Mon, 02 Mar 2009 23:51:00 -0800 http://tech-bankruptcy.blogspot.com/2009/03/customer-data-just-goes-out-door-at.html an interesting article about the sometimes loose treatment of business and customer data in liquidations. It talks about improper disposition of sensitive customer data and the habit of trustees and liquidators of auctioning off computers without first scrubbing them of data.
This kind of problem certainly exists. I'm personally aware of one case where a weight-loss franchisee's employee threw customer records in the trash without shredding them first, and a reporter found them. This resulted in an investigation by the state attorney general's office. In another case, the data back-up disks for the debtor's on-line website were in a cardboard box, in a corner, and disappeared during the course of the furniture and equipment auction. 
With a failing business, data controls are fairly important. One of the items on the checklist definitely has to be identifying both sensitive data (such as payroll information and consumer information) and key data (such as financial information and asset related data) and developing a plan to ensure such data is properly preserved or disposed of, as needed.
The article includes a quote by Michael Fleming, a friend of mine who practices technology law in Minneapolis. Way to go Mike. ]]> http://tech-bankruptcy.blogspot.com/2009/03/failing-chip-makers-and-others-spansion.html Mon, 02 Mar 2009 01:17:00 -0800 http://tech-bankruptcy.blogspot.com/2009/03/failing-chip-makers-and-others-spansion.html AP story, Spansion's problems are related to the decline in demand for consumer electronics.
Crain's Detroit Business predicts that Visteon will file for bankruptcy sometime before the end of April. Visteon provides technology and electronics systems for the automotive industry, so no great surprise there.
Last Monday, Dynogen Pharmaceuticals filed a chapter 7 petition in Massachusetts. Among the creditors, about six law firms owed more than $250,000. Debtor's counsel received payments for about the same sum prior to filing the petition. Nice work for a chapter 7 case.

]]> http://tech-bankruptcy.blogspot.com/2009/02/more-qimonda-againbroadramp.html Mon, 23 Feb 2009 01:23:00 -0800 http://tech-bankruptcy.blogspot.com/2009/02/more-qimonda-againbroadramp.html previously.

Online video delivery company, BroadRamp, Inc., filed a Chapter 7 bankruptcy recently, according to My San Antonio. I notice the website is still up and running. I also notice that they stopped issuing press releases back in April 2008. When a tech start-up stops issuing press releases it is usually a pretty clear sign that something is amiss with the cash flow. ]]> http://tech-bankruptcy.blogspot.com/2009/02/midway-games-files-chapter-11.html Fri, 13 Feb 2009 00:59:00 -0800 http://tech-bankruptcy.blogspot.com/2009/02/midway-games-files-chapter-11.html As predicted back in December, Midway Games, Inc. filed its Chapter 11 petition on February 12, 2009, in Delaware. The case number is 09-10465. A maker of computer games available through retail outlets and on-line, Midway Games claims in its press release that its fundamental business is stable, but that obligations related to stock repurchase agreements forced it to seek Chapter 11. European operations will not be affected.

A number of its titles, such as Mortal Kombat v. DC Universe depend on licensing deals and it will be interesting to see if Midway runs into problems assuming those licenses. ]]>