. . . and the rest of the day to yourself!

The correct response to the Irish greeting, “Top of the morning to you” is “and the rest of the day to yourself! ” That said,  there are many who believe that the purported phrase “top o’ the morning”  is nothing more than a myth to the Irish themselves.   Most of the Irish today may tell you they have never, heard even any one (other than the Lucky Charms commercials) use that phrase.  The greeting does appear in a World War I poem written by Henry Newbolt, which goes:  “So I laughed, and felt quite well disposed to the youngster, And shouted out “the top of the morning” to him, And wished him “Good sport!” and then I remembered, My rank, and his, and what I ought to be doing. . . “.  But Newbolt wasn’t Irish, he was British!    The greeting may have been used in Ireland during the Victorian era, since a novel written by Irish author Charles J. Kickham in 1879 contains a reference to the greeting: “And the words —”The top of the morning to you, Miss Grace,” suggested the idea that Father Hannigan affected the phraseology of the peasantry.” If anyone knows better, let me know!

Retaining Jurisdiction Requires More than Just Words

By Douglas Schneller, Partner, Rimon Law

Bankruptcy plans and contracts approved by bankruptcy courts routinely include “retention of jurisdiction” provisions, but a case decided last month, Gupta v. Quincy Med. Ctr. (“Gupta”), reminds us that the jurisdiction of a bankruptcy court is not unlimited merely by reciting the words. In the Gupta decision, the First Circuit held that unless the dispute involves or affects the debtor’s estate or requires interpretation of a bankruptcy court order or bankruptcy law underlying the dispute, the appropriate venue to consider the dispute may be state court, even against the expectations or wishes of the parties.

In this case, the parties entered into an agreement for the sale of assets by the seller and in the contract, the buyer agreed to pay severance to any employees of the seller that were fired after closing. Literally the day after signing the agreement, the seller (the ‘debtor’) filed voluntary Chapter 11 petitions and a sale motion under the Bankruptcy Code seeking approval of the asset purchase agreement. The Bankruptcy Court approved the agreement and sale, which then closed. The Bankruptcy Court’s order, as well as the order confirming the proposed Chapter 11 plan of reorganization, each contained a provision that the Bankruptcy Court would retain jurisdiction over disputes.

You can guess what happened next. After the closing of the asset sale, the buyer terminated the seller’s executives, effective as of the closing date and refused to pay severance. Inevitably, the lawsuits followed. Although the Bankruptcy Court decided it had jurisdiction to hear the claims based on the ‘retention of jurisdiction’ clauses, on June 2, 2017, the First Circuit Court of Appeals decision concluded that the Bankruptcy Court lacked subject matter jurisdiction. The First Circuit vacated the judgments against the buyer and remanded the case with instructions to dismiss the claims against the buyer. In short, the court concluded that the contract language in the asset purchase agreement was not sufficient by itself for the Bankruptcy Court to retain jurisdiction to hear disputes, because a bankruptcy court cannot retain jurisdiction it never had. Indeed, the court noted that the claims could well have arisen entirely outside of bankruptcy and could be decided solely under Massachusetts contract law.

There is a lot more detail and analysis and if you want to read the entire Client Alert: First Circuit: Bankruptcy Court “Retention of Jurisdiction” Provision Requires More Than Mere Words and contact Douglas Schneller directly.

Of course, you should always feel free to contact me, Joe Rosenbaum, or any of the professionals at Rimon Law with whom you routinely work.

Woody Allen

“All people know the same truth. Our lives consist of how we chose to distort it.”

Legal Entity Identifiers Require More Invasive Information

Robin Powers, Partner &  James Ballard, Paralegal

The Global Market Entity Identifier Utility issues Legal Entity Identifiers (LEI) which are unique 20-digit alpha-numeric identification codes, based on standards developed by the International Organization for Standardization.  Many regulatory authorities require financial market participants that engage in certain transactions to obtain an LEI. Read more about the LEI.

In the past, an entity could simply provide self-identifying information (i.e., “Level 1 Data”), but now GMEI Utility is requiring Level 2 Data – information relating to the parent companies of its registered entities, based on the accounting relationship of the entities.

This reporting requirement will permanently link data collected in relation to an entity’s LEI to all of its daughter entities. If the parent does not have its own LEI, other identifying information (parent’s legal name, address and registration authority information) is now being required. There are some exceptions or allowable reasons for opting out of providing certain information, but it is clear that LEI issuers are seeking additional scrutiny of parent companies.

Could an enterprise reorganize in order to avoid reporting by qualifying for an exclusion? Perhaps. Could contractual restrictions on disclosure allow for an opt-out?  It’s possible. Could accounting and financial restructuring dis aggregate the basis for the connection? Maybe. Whatever the consequences and reactions, legal counsel should be consulted to assess the risks of providing such additional information in this context.

You should contact Robin Powers and James Ballard directly if you have questions and they have prepared a more detailed client alert you can read:  Maintaining Your Legal Entity Identifier Just Got More Invasive.

Of course, if you need assistance or more information, you can always contact me, Joe Rosenbaum or any of the attorneys are Rimon Law with whom you regularly work.

G’day Mate

What is the correct response to the Irish greeting “Top of the morning to you”.

Here Comes the Sun

In answer to our solar eclipse question, in theory a total solar eclipse viewed from the surface of the Earth can never be longer than 7 minutes, 32 seconds long.  A total solar eclipse occurs when a new moon passes directly in front of the Sun, casting a shadow on part of the Earth. Consequently, geometry and the motion of the Earth, Moon and Sun are the time-limiting factors.

The next total solar eclipse will take place on Monday, August 21, 2017, following a path across the United States from Oregon to South Carolina.  People directly within the approximately 70 mile wide path the moon’s shadow will take, will see the sun disappear, will see daylight turn to twilight and will feel the temperature drop.  Outside that band, others will see a partial eclipse of the Sun.

You should never look directly at the sun, but if you learn how to view the eclipse properly, anyone directly in the shadow will see the Sun’s corona – appearing to have streamers of light surrounding the silhouette of the moon. NASA has information that can help you understand how to protect your eyes: Eye Safety During a Total Solar Eclipse.

Edmund Burke

“Manners, are of more importance than law. . . The law touches us but here and there and now and then. Manners are what vex or soothe, corrupt or purify, exalt or debase, barbarize or refine us, by a constant, steady, uniform and insensible operation like that of the air we breathe in.”

Jack Benny

This week we asked you to tell us the real name of comic Jack Benny and why he picked that as his stage name. His real name, Benjamin Kubelsky, drew the attention of concert violinist Jan Kubelik, who felt a violin-playing vaudeville comic would damage his reputation. Kubelik threatened to sue unless Benjamin changed his name. So he did. To “Ben K Benny.” Unfortunately, another well known entertainer, Ben Bernie, also threatened to sue over the use of that name. So he decided to use “Jack Benny” and keep playing violin and, as they say, the rest is history.