The Supreme Court held oral argument earlier today in the Mission Products v. Tempnology case, on the issue of the effect of rejection by a licensor of a trademark license on the licensee’s rights. For the full background on the case and the arguments of the parties and amici, please read this post from last week. However, for quick reference, this is the question presented:

Whether, under §365 of the Bankruptcy Code, a debtor-licensor’s “rejection” of a license agreement—which “constitutes a breach of such contract,” 11 U.S.C. §365(g)—terminates rights of the licensee that would survive the licensor’s breach under applicable nonbankruptcy law.

What follows are some initial impressions from the questions and comments by the Justices during oral argument. You can read the entire official oral argument transcript at this link.

  • Overview. Those looking for a clear signal how the Court will rule are going to be disappointed. Although all Justices other than Justices Thomas and Kavanaugh asked questions, it’s difficult to tell where the Court will come out on the key issue.
  • Mootness. The Justices asked a number of questions about Tempnology’s argument that the case is moot. If the questions are a guide, it appears that the Court may be inclined to hold that the case is not moot. Justice Gorsuch was quite focused on that issue but later in the oral argument asked whether the facts presented at least “an acorn of injury” for Article III purposes.
  • Quality Control. One important focus was the impact of the quality control requirement imposed on a trademark owner under trademark law. The Justices raised a number of questions centered on whether this obligation made trademarks, and therefore trademark licenses, different from other contracts. The parties had agreed that outside of bankruptcy a breach by a trademark owner as licensor would not terminate a trademark licensee’s rights, but at times the Justices seemed to question that premise.
  • General Rule v. Exceptions. Another major area of interest was whether the existence of exceptions in Section 365, such as Sections 365(n), 365(h)(2), and 365(i)(2), implied that the general rule of the effect of rejection was to terminate the rejected executory contract. In response to the argument that these subsections do not mean the general rule of Section 365 is termination, Justice Sotomayor commented that it “seems as all of these are exceptions by their nature, and that goes contrary to the general rule that if it’s an exception, the rule is different than the exception.” On several occasions she expressed concern that if the Sunbeam rule were followed, a trademark licensee would get more rights than would a licensee of other intellectual property under Section 365(n), given the trade-offs built into Section 365(n).
  • Rejection as Breach. A core issue discussed in the oral argument was whether rejection is just a pre-petition breach–or something more.
    • Justice Kagan noted that Section 365(g) states that rejection “constitutes a breach” and asked why a debtor or trustee could “unwind the entire deal” in bankruptcy upon rejection but not when a licensor breached outside of bankruptcy.
    • Justice Sotomayor, during the argument by the United States, observed that “rejection is not a contract term,” and described rejection instead as a “specialized term.”
    • Overall, the Justices seemed to be struggling with how to square Section 365(g)’s language that rejection “constitutes a breach” with that section’s use of a bankruptcy-specific term, “rejection.”

Conclusion. During an hour-long oral argument, the Justices raised questions about a number of bankruptcy and trademark law issues. What they did not do, however, was reveal any clear direction in how they will decide the case. Since no conservative/liberal split emerged, it would not be surprising to see an atypical combination of Justices voting together, assuming the decision is not unanimous. What that decision will ultimately be, and how the various Justices will vote, remains to be seen. Stay tuned.