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In June 2015, Bankruptcy Judge John T. Gregg ruled in In re Family Christian[1] that all administrative priority claims, including those arising under § 503(b)(9), must be paid as part of the price of a § 363 sale of the debtor’s assets.
One of the most significant benefits of acquiring assets out of a bankruptcy estate is the ability to obtain those assets free and clear of liens, claims, interests and encumbrances, pursuant to § 363 of the Bankruptcy Code and the terms of a bankruptcy court sale order. In certain circuits, including the Second Circuit, the term “interests” includes not only in rem interests, but in personam interests as well, such as successor liability claims.
We know 2015 was a bleak year for coal, oil and natural gas producers, with at least 67 bankruptcy filings. 2016 is not looking much better. Surpluses of coal, oil and natural gas continue to weigh down prices and threaten companies’ balance sheets.
The Unsecured Trade Creditors' Committee's call discussed “gifting” and other recent developments regarding application of the absolute priority rule. In In re ICL Holding, the Third Circuit Court of Appeals recently held that “gifting” is permissible in section 363 sales. Conversely, in prior opinions, both the Second and Third Circuits have held that “gifting” is not permissible in the context of a chapter 11 plan.
The Asset Sales Committee hosted a conference call discussing the GM successor liability decision now on appeal in the Second Circuit. John Hutton (Greenberg Traurig LLP; Miami) and Henry Jaffe (Pepper Hamilton LLP; Wilmington) led a conference call discussing the issues raised and being briefed before the Second Circuit in the GM successor liability appeal.
