Tag: bankruptcy

Lawyer of the Year

EB Co-Founder Steven N. Berger Named 2022 Best Lawyers® “Lawyer of the Year” in the Phoenix Area

Engelman Berger, PC attorney Steven N. Berger was recently recognized by Best Lawyers® as the 2022 “Lawyer of the Year” for Litigation – Bankruptcy.

Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant. These lawyers are selected based on particularly impressive voting averages received during the peer review assessments. Receiving this designation reflects the high level of respect Steve has earned among other leading lawyers in the same communities and the same practice areas for their abilities, professionalism, and integrity.

In addition to the “Lawyer of the Year” award, Steven N. Berger was also listed in the 2022 edition of The Best Lawyers in America® in Bankruptcy and Creditor Rights / Insolvency and Reorganization Law. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence.

Congratulations Steve!

Best Lawyers In America 2022


Fourteen of Engelman Berger’s attorneys have been selected for inclusion in The Best Lawyers in America© 2022, considered by many to be the definitive guide to legal excellence. EB attorneys were chosen in the areas of Bankruptcy, Litigation, Commercial Litigation, Creditor Debtor Rights, Insolvency and Reorganization Law, Appellate Practice, Public Finance Law, Water Law, Banking and Finance Law, Health Care Law, and Real Estate Law. EB would like to congratulate Rachel Phillips for being our newest addition to the Best Lawyers list!

The Best Lawyers in America 2022:

Steven N. Berger

Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law

Litigation – Bankruptcy

Brigitte Finley Green

Public Finance Law

Tamalyn E. Lewis

Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law

Kurt A. Peterson

Real Estate Law

Patrick A. Clisham

Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law

Scott B. Cohen

Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law

Litigation – Bankruptcy

Bradley D. Pack

Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law

Appellate Practice

Commercial Litigation

William H. Anger

Banking and Finance Law

Real Estate Law

Water Law

Wade M. Burgeson

Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law

Kevin M. Judiscak

Commercial Litigation

Litigation – Real Estate NEW in 2022!

Damien R. Meyer

Commercial Litigation

Julie Arvo MacKenzie

Health Care Law

The Best Lawyers in America: Ones to Watch 2022:

Michael P. Rolland

Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law

Commercial Litigation

Litigation – Bankruptcy

Rachel E. Phillips

Commercial Litigation

Best Lawyers® is the oldest and most respected peer review publication in the legal profession. Best Lawyers® selects its honored attorneys entirely by peer review. Their methodology is designed to gather as accurate of a consensus opinion of the leading attorneys in the profession. Selections are made after compiling data from extensive peer review surveys in which tens of thousands of leading lawyers confidentially review and evaluate their professional peers. Opinions are based on the lawyers’ professional abilities which are compared to others in the same geographical location and legal practice area. Congratulations Steve, Brigitte, Tami, Kurt, Patrick, Scott, Brad, Bill, Wade, Kevin, Damien, Julie, Rachel, and Michael!

Engelman Berger Blog

Rejection of Trademark License Not Tantamount to Revocation

Have you ever worried about the status of your intellectual property rights if the licensor filed bankruptcy? Outside of bankruptcy, it was settled law that a licensor who breaches cannot revoke its rights under a contract, absent some special contract terms or unique aspect of law. In a bankruptcy, however, revocation was a serious concern in entertainment law and the fashion industry, for example. Days ago, the U.S. Supreme Court clarified your rights and ended any chance of debtors licensing away their intellectual property rights, declaring bankruptcy, and then re-trading them.

In Mission Product Holdings, Inc. v. Tempnology, LLC, nka Old Cold LLC, 2019 WL 2166392, the Supreme Court addressed the issue of whether a debtor-licensor’s rejection of a contract deprives the licensee of its rights to use the trademark. The Supreme Court held that it does not.  Succinctly put, “A rejection breaches a contract but does not rescind it.” Accordingly, those rights conveyed by the contract survive the breach and remain in place.

This case arises in the context of a licensing agreement but should apply equally to all contracts with debtors. Tempnology primarily manufactured workout clothing designed to keep you cool and marketed those products under the brand name “Coolcore.” It used trademarks to distinguish its gear from the competition. Tempnology entered into a contract with Mission Product Holdings which gave Mission an exclusive license to distribute certain Coolcore products in the U.S. It also granted Mission a non-exclusive license to use the Coolcore trademarks. Before the agreement expired, Tempnology filed a voluntary petition under Chapter 11 of Title 11 of the U.S. Code a/k/a the Bankruptcy Code. Tempnology then asked the bankruptcy court to allow it to “reject” the licensing agreement.

The bankruptcy court approved the rejection, thereby relieving the debtor of any obligation to continue to perform and giving counterparty Mission a pre-petition claim for damages. Tempnology wanted more. Tempnology sued for declaratory judgment asking the court to determine that rejection was tantamount to rescission in that it terminated the rights it granted Mission to use Coolcore trademarks. While the bankruptcy court agreed with Tempnology, the Bankruptcy Appellate Panel for the First Circuit disagreed. The First Circuit Court of Appeals rejected the BAP’s analysis and an opinion out of the Seventh Circuit, and reinstated the bankruptcy court’s decision. 

Numerous courts have struggled with the ramifications of a debtor’s rejection of a contract pursuant to Section 365 of the U.S. Bankruptcy Code. Over time, two views emerged.  Some courts concluded that a contract breach should have the same consequences as a breach outside of bankruptcy. Under this scenario, a breach allows the counterparty a suit for damages while leaving intact the rights the counterparty received under the agreement. Other courts have held that a contract breach is more akin to a rescission in a non-bankruptcy environment. In this paradigm, the counterparty still has a suit for damages but the rejection terminates the entire agreement and corresponding contractual rights conferred upon the counterparty. 

As Professor Baird wrote and Justice Kagan quoted for the majority: “A debtor’s property does not shrink by happenstance of bankruptcy, but it does not expand, either.” This principle applies equally to personal property contracts as it does to license agreements. In fact, the hypothetical Justice Kagan weaves throughout the opinion is that of a law firm’s lease of a copier. Thus, we are guaranteed to see various applications of Tempnology as debtors and creditors explore the boundaries of this latest Supreme Court decision.

About the Author: Scott Cohen has practiced commercial bankruptcy, creditors’ rights, and insolvency litigation for 27 years. He is a Board Certified Specialist in Business Bankruptcy Law and a past Bankruptcy Section Chair of the State Bar of Arizona.

Disclaimer: This blog is not legal advice and is only for general, non-specific informational purposes. It is not intended to cover all the issues related to the topic discussed. If you have a legal matter, the specific facts that apply to you may require legal knowledge not addressed by this blog. If you need legal advice, consult with a lawyer.