Day: June 3, 2021

In May 2021, the Third Circuit issued an opinion regarding the 2018 bankruptcy of the Harvey Weinstein Company, LLC (TWC), crystalizing what factors are required to prove that a contract is “executory” under § 365 of the Bankruptcy Code (the “Code”).

Section 365 of the Code provides for the assumption or rejection of a contract or unexpired lease under certain specific circumstances. If a Debtor wishes to assume (or continue) or reject (or breach) a contract, it is required to, inter alia, “cure or provide adequate assurance that it will cure any defaults under that executory contract” and “put it in the same place as if the bankruptcy never happened.” See 11 U.S.C. 365(b)(1). If a Debtor has “assumed” the executory contract in the bankruptcy proceeding, it has the ability to later “assign” that contract to a non-debtor entity. This often occurs in a bankruptcy proceeding when the assets of that Debtor are being sold under an Asset Purchase Agreement to a third party.

The issue as to whether a contract is executory or non-executory has significant ramifications for how it is treated in a bankruptcy sale of assets.  This very issue as to what an executory contract is was decided in this case by Judge Ambro of the Third Circuit.

By way of background, TWC and affiliates (the “Debtors”) filed for Chapter 11 protection in March 2018. A compelling (but not primary) reason for the bankruptcy filing was the ever-growing number of sexual misconduct allegations against its principal and then-Hollywood mogul, Harvey Weinstein, which caused its business to plummet. The bankruptcy’s main goal, though, was to facilitate the sale of most of TWC’s assets to the predecessor-in-interest of Spyglass Media Group, LLC (“Spyglass”) and to get court approval of its asset purchase agreement with Spyglass pursuant to § 363 of the Bankruptcy Code. Among the assets in Debtors’ bankruptcy estate was a contract with Bruce Cohen (“Cohen”), who produced the movie Silver Linings Playbook, which movie had been released in November 2012. A part of TWC’s contract with Bruce Cohen (the “Cohen Agreement”) included a provision that assured that Cohen will receive certain future compensation equal to roughly 5% of the net profits of Silver Linings Playbook. Debtors sold the Cohen Agreement, amongst myriad other assets, to Spyglass in a § 363 sale (the “Sale”). At the time of the Sale, TWC owed Cohen approximately $400,000 in unpaid contingent compensation.

At issue before the Third Circuit was whether the Cohen Agreement was “executory” at the time of the Sale. If so, then Cohen would be entitled to the cure amount of $400,000. If not, then Cohen would not be owed any of the unpaid contingent compensation (but would remain entitled to future contingent compensation). The Third Circuit found that the Cohen Agreement was not executory, thereby affirming the decisions in the lower courts.

The Third Circuit follows the “Countryman test” for determining whether a contract is executory or non-executory. Under this test, an executory contract is defined as “a contract under which the obligations of both the bankrupt and the other party to the contract are so far unperformed that the failure of either to complete performance would constitute a material breach excusing performance of the other.” Spyglass Media Group, LLC v. Cohen (In re Weinstein Company Holdings, LLC), Nos. 20-1750 and 20-1751, slip op., pages 10–11 (3d Cir. May 21, 2021) (quoting Vern Countryman, Executory Contracts in Bankruptcy: Part I, 57 Minn. L. Rev. 439, 460 (1973)). A contract is also not executory under § 365 “unless both parties have unperformed obligations that would constitute material breach if not performed” and such obligations are owed “when the bankruptcy petition is filed.” Id., at page 11 (quoting In re Columbia Gas Sys. Inc., 50 F.3d 233, 239–40 (3d Cir. 1995)). What makes a breach “material” is a question of state law. See id. In reliance on the above principles, the Third Circuit succinctly enunciated the test for executory contracts: “[T]he test for an executory contract is whether, under the relevant state law governing the contract, each side has at least one material unperformed obligation as of the bankruptcy petition date.” Id. (emphasis added).

To further clarify this caveat to the Countryman rule, the Third Circuit analogized the need to perform material obligations to assets and liabilities of the bankruptcy estate. “[T]he performance the nonbankrupt owes the debtor constitutes an asset, and the performance the debtor owes the nonbankrupt is a liability.” Id. In reliance on the above framework, the Court explained that “a contract where the debtor fully performed all material obligations, but the nonbankrupt counterparty has not, cannot be executory; that contract can be viewed as just an asset of the estate with no liability.” Id., at pages 11–12. “On the other extreme, where the counterparty performed but the debtor has not, the contract is also not executory because it is only a liability for the estate.” Id., at page 12. The Court further explained that “only where a contract has at least one material unperformed obligation on each side—that is, where there can be uncertainty if the contract is a net asset or liability for the debtor—[does the Court] invite the debtor’s business judgment on whether the contract should be assumed or rejected.” Id.

As explained above, in the context of a § 363 sale, in order for an executory contract to be assumed and subsequently assigned to the buyer of a debtor’s assets, the debtor must first cure or provide adequate assurance that it will cure any defaults to such executory contract. If, however, the contract being purchased by the buyer in a § 363 sale is not executory, the debtor has no obligation to cure. Put plainly, “if the contract is not executory, it can be sold to a § 363 buyer like any other liability or asset.” Id., at page 13. “In the case of a non-executory contract where only the debtor has material obligations left to perform, the contract is a liability of the estate, and if the buyer wants to buy it, the buyer is voluntarily assuming that liability.” Id. This results in the buyer being burdened only by a go-forward need to “fulfill obligations under the contract it bought after the sale closes, just as it would with any other asset or liability.” Id., at page 14.

Applying this test, the Third Circuit concluded that the Cohen Agreement was non-executory because, although failure to pay contingent compensation to Cohen would result in a material breach, Cohen as counterparty does not maintain any outstanding obligations the non-performance of which would result in material breach under New York law (the applicable state law) or by the terms of the Cohen Agreement. See id., at page 25. This is true since as the Third Circuit indicated, Cohen’s remaining obligations (i.e., to refrain from pursuing injunctive relief over intellectual property he does not own) were ancillary and immaterial and did not avoid NY’s “substantial performance rule.” The Court articulated that parties could contract around a state’s default contract rule regarding substantial performance (which is key in defining what sorts of breaches are material), and that, by crafting provisions that take the contract outside of such state rules, parties can “override the Bankruptcy Code’s intended protections for the debtor.” Id. However, the Court cautioned that contracting around a state’s default substantial performance rule “can only be accomplished clearly and unambiguously in the text of the agreement.” Herein, the Third Circuit concluded that ”[n]o provision in the contract clearly and unambiguously overrode New York’s default substantial performance rule that obligations are immaterial if they do not go to the root and purpose of the transaction,” and that, therefore, the Cohen Agreement was subject to New York’s substantial performance rule and commensurate definition for material breach. Id., at page 25. The Third Circuit did recognize though that the parties could have contracted around a state’s default contract rule regarding substantial performance and by doing so could override the Code’s intended protections for a Debtor.

Despite Cohen not being entitled to any cure amount under § 365, the Court did indicate that the amount owed to Cohen before closing of the Sale can still be asserted as an unsecured claim to be paid on a pro rata basis with other unsecured creditors (including the victims of Weinstein’s sexual abuse), provided such claim is timely. The Third Circuit also stated that although Spyglass did not owe Cohen the unpaid pre-sale amount, Spyglass nonetheless had to comply with post-closing obligations coming due under the Cohen Agreement. Finally, the Court opined that “(t)his pill is bitter to swallow, but bankruptcy inevitably creates harsh results for some players.”

As an aside, this ruling can have severe implications for the likes of Bradley Cooper (Philadelphia native), Jennifer Lawrence (Oscar winner for the movie) and others who are trying to collect unpaid royalties.

To discuss issues regarding creditors rights and bankruptcy, please contact Leslie Beth Baskin at 215-241-8926 or