Executory Contracts in Bankruptcy: Navigating the Legal Ambiguities

Best Practices for Debtors and Creditors in Assuming or Rejecting Contracts

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Thursday, March 1, 2012

Recorded event now available

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Course Materials

This CLE course will prepare bankruptcy counsel to navigate the complex rules to determine whether a contract in a bankruptcy proceeding is executory. The panel will also discuss whether contracts fit within any "special" categories of executory contracts and how the contracts will be treated throughout the proceeding.


One of the most valuable tools in a Chapter 11 bankruptcy is the debtor’s ability to assume or reject executory contracts. The debtor can shed unprofitable or burdensome contracts and retain only those that benefit the reorganized business or that can be assigned to generate value for the estate.

Typical executory contracts are unexpired leases, employment contracts, personal services contracts and licenses to intellectual property. However, many executory contracts receive more favorable treatment in the process than others.

Cases abound regarding the definition of an executory contract, the effect of post-petition events on the contract, and whether the contract is non-assumable or non-assignable. The ambiguities that exist and inconsistencies among circuit courts is a legitimate consideration for forum shopping.

Listen as our authoritative panel of bankruptcy and contracts practitioners analyzes some of the legal ambiguities surrounding executory contracts and the treatment of special classes of executory contracts.



  1. Defining executory contracts
    1. Traditional (Countryman) v. functional
    2. Single v. multiple contracts
    3. Effect of post-petition events
  2. Assumption/assignment of executory contracts
    1. Unexpired leases
    2. Intellectual property and licenses
    3. Personal services contracts
    4. “Ride-through” doctrine
  3. Non-assumable or non-assignable contracts
    1. Franchise agreements
    2. Partnership and LLC agreements
    3. Certain intellectual property licenses
    4. Loans and other debt financing
    5. “Ride-through doctrine


The panel will review these and other key questions:

  • What are the current federal circuit court views toward defining executory contracts?
  • Can a post-petition event alter a contract's executory status?
  • What options does a debtor have when an executory contract cannot be assumed as a matter of law?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.


Lance E. Miller
Lance E. Miller

Jones Day

His practice focuses on bankruptcy, corporate reorganization, and complex bankruptcy litigation. He represents major...  |  Read More

B. Summer Chandler
B. Summer Chandler

McKenna Long & Aldridge

Her practice focuses on bankruptcy, workouts and debtor/creditor law and general commercial litigation. She has...  |  Read More

Griffin S. Dunham
Griffin S. Dunham


He concentrates his practice in the areas of Chapter 11 bankruptcy reorganizations, insolvency and distressed business...  |  Read More

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