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Craig Tractenberg of Fox Rothschild. Craig Tractenberg of Fox Rothschild.

The U.S. Supreme Court clarified a vexing bankruptcy issue causing conflicts between U.S. Circuit Courts of Appeal. In Mission Products Holding v. Tempnology (In re Tempnology), the court clarified the intersection of bankruptcy and trademark law, and held that rejection under Section 365 of the Bankruptcy Code “constitutes a breach” of an executory contract by the debtor. This reverses the decision of the U.S. Court of Appeals for the First Circuit which treated the rejection as a termination of the contract akin to a rescission. Justice Elena Kagan wrote for the majority, and was the most active questioner at oral argument.

 

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