Asset Sales

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.

Labor Issues in 363 Sales: Things You Need to Know

Resolved: Unsecured creditors entitled to post-petition interest can only be paid at the federal judgment rate. Pro: Rachel C. Strickland Willkie Farr & Gallagher LLP; New York Con: Joseph H. Smolinsky Weil, Gotshal & Manges LLP; New York Resolved: Actual fraud under § 523(a)(2)(A) is limited to misrepresentation. Pro: G. Eric Brunstad, Dechert LLP; Hartford, Conn. Con: Danielle Spinelli . WilmerHale; Washington, D.C. Resolved: Negative-notice procedure is sufficient to establish consent under § 363(f). Pro: Hon. Thomas J. Catliota U.S. Bankruptcy Court (D. Md.); Greenbelt Con: Hon. Martin R. Barash U.S. Bankruptcy Court (C.D. Cal.); Woodland Hills

This panel will discuss the rationale and practical consequences of the nuanced approach to the often difficult concept of valuation in Chapter 11 taken by the ABI Chapter 11 Commission’s recommendations.