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Tech Bankruptcy
September 15, 2007
  Online Foreclosures: Commercially Reasonable?
A year ago or so a reporter asked me to comment on why more Article 9 foreclosures are not conducted on-line. I told him I wasn't sure, but I suspected the reason was concern over whether an on-line foreclosure auction would be considered commercially reasonable.

It's not that I think an on-line foreclosure auction might be commercially unreasonable. In many circumstances - if not most - I think an on-line foreclosure auction would be more commercially reasonable than a traditional auction. In fact, I think we may someday see the day when a court holds a traditional auction commercially unreasonable because a much better on-line liquidation venue is available. The problem in this circumstance is the danger in being the first to try something new - whenever a secured creditor tries any new liquidation method it takes the risk of being accused of having foreclosed its collateral in a commercially unreasonable manner. Absent judicial acceptance, new foreclosure methods are inherently risky.

I recently came across a 2006 decision from the US Bankrutpcy Court for the District of Idaho that helps: In re A.W. Logging, Inc., 2006 WL 2860808 (Bankr. D. Idaho 2006).

Les Bois Leasing leased a sawmill and loader to A.W. Logging, Inc. After A.W. Logging, Inc. filed bankruptcy, Les Bois Leasing was able to terminate the leases and liquidate the equipment. Les Bois did so by selling the equipment through an online auction service called Iron Planet. Iron Planet is a fairly well known website used for liquidating all kinds of heavy equipment and vehicles. After liquidating its equipment, Les Bois filed a proof of claim for the remaining amount due under the lease.

The Debtor claimed the use of Iron Planet to sell the equipment was not commercially reasonable. The Debtor did not object to the use of an on-line auction, per se. Instead the Debtor objected to the particular auction site used. The Debtor claimed Les Boise should have used a speciality auction website, called the Sawmill Exchange, rather than an auction site that focused on heavy equipment generally. The Court agreed that under Idaho law, the leasing company had an obligation to dispose of the equipment in a commercially reasonable manner. But, as to the choice of auction site the Court had little to say, pointing out that:

"[t]he evidence showed that Iron Planet is a well-respected auction website that specializes in the sale of heavy equipment...[T]he Court is not persuaded that...the sawmill was not exposed to a broad market."

The Court noted that several bids were placed and held that the sale of the equipment on Iron Planet was reasonable.

The case demonstrates that on-line auctions are suitable for foreclosure auctions, provided suitable thought is given to the market for the auction website and its ability to reach an adequate audience of potential buyers. A few recent law review articles have addressed the issue, and show that a secured lender should not be afraid to look at on-line auctions. For example Richard H. Nowka, Ebay Auctions of Repossessed Vehicles - A Template for Commercial Reasonableness Under Revised Article 9, 31 S. Ill. U. L.J. 281 (2007); Michael Korbut, Online Auctions of Repossessed Collateral, 31 Rutgers L.J. 29 (1999).

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September 14, 2007
  SCO Group Files Bankruptcy: Penguins Rejoice!
I've just learned from various friends in Delaware that the infamous The SCO Group has just filed a chapter 11 petition in Delaware. If you are not familiar with The SCO Group, they are famous - or perhaps infamous - for lawsuits against IBM and others claiming that the LINUX operating system violates IP rights The SCO Group had previously acquired from Novell. Last month, a federal judge held that the rights in question belonged to Novell, not The SCO Group. Novell promptly announced it has no interest in suing anyone in connection with use of the LINUX operating system.
Robbed of its business model of selling licenses to use the otherwise free LINUX operating system, The SCO Group apparently cannot cover its debts. I would have thought a chapter 7 would be more appropriate, since as far as I know the company has no actual business. But, I may be wrong.


September 02, 2007
  Ignored License Agreements Do "Ride Through"
In December 2006, I wrote about a "ride-through" case from the District of Idaho. In In re JZ, LLC, 2006 WL 3782988 (Bankr. D. Idaho). In that case, a reorganized Debtor, JZ, LLC, sued Diamond Z Trailer, Inc. for breach of a license agreement. The defendant argued that the license was terminated because it had been ignored during the bankruptcy process - that is, the Debtor neither assumed it or assigned it. The bankruptcy court held that the license "rode through" the bankruptcy process and could be enforced.

The BAP for the Ninth Circuit has now affirmed that decision, holding that the Bankruptcy Act clearly established the ride-through doctrine; the First, Second and Fifth judicial circuits have recognized the doctrine's continued application; and the ride-through doctrine would apply in the JZ, LLC case to allow the Debtor to enforce the license. Diamond Z Trailer, Inc. v. JZ, LLC, 2007 WL 1954035 (9th Cir. BAP 2007).

I'm at the beach and uninterested in discussing the matter further. Fortunately, Sheppard Mullen's Bankruptcy Law Blog has posted an excellent and thorough analysis of the case.

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A blog discussing the impact of technology on bankruptcy law and practice.

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Warren E. Agin is a partner in Swiggart & Agin, LLC, a boutique law firm in Boston, Massachusetts focusing on the needs of technology companies. Mr. Agin heads its bankruptcy department. The author of the book Bankruptcy and Secured Lending in Cyberspace (3rd Ed. West 2005), Mr. Agin also chaired the ABA's E-commerce and Insolvency Subcommittee from 1999 to 2005, co-chaired the Boston Bar Association's Internet and Computer Law Committee (2003-2005), and served on the American Bar Association's Standing Committee on Technology and Information Services (2008-2011). Mr. Agin currently co-chairs the Editorial Board of Business Law Today. A contributing editor to Norton Bankruptcy Law and Practice, 3d, and co-author of its chapter on intellectual property for the past fifteen years, he is author of numerous legal articles and addresses on topics of technology, internet and bankruptcy law.

Online Foreclosures: Commercially Reasonable?
SCO Group Files Bankruptcy: Penguins Rejoice!
Ignored License Agreements Do "Ride Through"
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