In Re Weinstein Company Holdings LLC: An Overly Systematic Approach to Executory Contracts Limits Much-Needed Flexibility

Thomas Hauk and Andrew Schwartz

No uxfjs_v1, LawArchive from Center for Open Science

Abstract: This Casebrief examines the Third Circuit’s decision in In re Weinstein Company Holdings LLC and argues that the court’s reliance on the traditional Countryman definition of executory contracts unnecessarily restricted the flexibility that Chapter 11 bankruptcy is designed to provide. The dispute arose from a work-made-for-hire agreement between Bruce Cohen and The Weinstein Company, under which substantial contingent compensation remained unpaid when the debtor entered bankruptcy. Applying the Countryman test, the Third Circuit held the agreement was not executory because, although the debtor retained material payment obligations, Cohen’s remaining obligations were immaterial under New York contract law. As a result, the agreement could be transferred through a § 363 asset sale without curing prepetition defaults. This Casebrief contends that the court should instead have adopted the functional framework advanced by Jay Westbrook and Kelsi Stayart White, which focuses on whether assumption or rejection of a contract produces a net benefit to the bankruptcy estate rather than on rigid formal distinctions regarding material performance. Through analysis of bankruptcy law, the Countryman definition, the functional approach, and New York contract principles, the Casebrief argues that the Cohen Agreement should have been treated as executory because both parties retained obligations and assumption would have maximized estate value. The Casebrief concludes that a more flexible, outcome-oriented approach would better serve the objectives of Chapter 11, provide greater clarity in complex entertainment-industry bankruptcies, and reduce reliance on formalistic distinctions that often obscure the practical consequences of contract treatment in bankruptcy. [This abstract was written by Microsoft Copilot, a generative artificial intelligence.]

Date: 2026-09-30
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DOI: 10.31228/osf.io/uxfjs_v1

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