Asset Sales

Attorney/Client Privilege and the Crime/Fraud Exception; Busting Up “Bankruptcy Remote” Entities

Presented by the Asset Sales and Unsecured Trade Creditors Committees

Consumer Debate Resolved: An out-of-statute proof of claim violates the FDCPA. Business Debate Resolved: Assets can be sold free and clear of liens in state court receiverships. Judges Debate Resolved: Third-party releases should not be allowed in chapter 11 plans.

Section 363 sales have become a widely accepted, if not preferred, method of monetizing the assets of a debtor in chapter 11 bankruptcy. This expert panel will discuss the hot and emerging topics related to § 363 sales.

Great Debates Paul M. Nussbaum, Moderator Whiteford Taylor Preston, LLP; Baltimore Resolved: A structured dismissal that violates the absolute priority rule should never be permitted. Pro: Craig Goldblatt WilmerHale; Washington, D.C. Con: Hon. Kevin J. Carey U.S. Bankruptcy Court (D. Del.); Wilmington Resolved: Asset sales under § 363 should lawfully be free and clear of successor-liability claims. Pro: Hon. Robert E. Gerber (ret.) U.S. Bankruptcy Court (S.D.N.Y.); New York Con: William P. Weintraub Goodwin Procter LLP; New York

Great Debates Timothy J. Hurley, Moderator Taft Stettinius & Hollister LLP; Cincinnati Resolved: Impairment is a good thing and should be encouraged. Pro: Hon. Kevin J. Carey U.S. Bankruptcy Court (D. Del.); Wilmington Con: Hon. John E. Hoffman U.S. Bankruptcy Court (S.D. Ohio); Columbus, Ohio Resolved: If you get caught hiding assets from the piper, you should pay the piper — with exempt assets. Pro: Hon.Eugene R. Wedoff (ret.) U.S. Bankruptcy Court (N.D. Ill.); Chicago Con: Hon.James M. Carr U.S. Bankruptcy Court (S.D. Ind.); Indianapolis Resolved: You should not be permitted to assert your claim against me. I'm new Jim.Go see Old Jim. Pro: Hon. Robert E. Gerber (ret.) U.S. Bankruptcy Court (S.D.N.Y.); New York Con: Bill Brandt Development Specialists, Inc.; New York

This panel will discuss game theories and claims trading, the private-equity angle, pre-petition debt-buying, due-process issues and information-adequacy issues in first-day sale motions.

Debtors and their counsel want a smooth, quick chapter 7 experience and discharge: a simple no-asset case that will proceed promptly through a short, uneventful first meeting of creditors, to discharge and case closing in a matter of a few months. The chapter 7 trustee stands in the way, though, as he/she looks for discharges to deny and assets to pay creditors. Forewarned is forearmed: This seminar will explore recent skirmishes in the struggle between the impecunious and their trustees, including the important areas of homestead exemption and mortgage-lien avoidance, avoidance of large pre-filing family expense payments, and nondisclosure issues.

Topics will include § 363 sale best practices to avoid Family Christian pitfalls, notice issues in light of Motors Liquidation Co., finding creditor consent, identifying highest and best offers, reopening an auction, and post-sale issues such as structured dismissals without a plan.