Asset Sales

Six Serious Pitfalls to Pursuing a Single Suitor Strategy — And Four Common Reasons Why Companies Do It Anyway

Your client or borrower is a troubled business that desperately needs to find a buyer or new money, and fast. Somebody suggests that your client/borrower hire an intermediary, but the company already has one “offer” (for purchase, refinance, investment), so is reluctant to hire an investment banker to run a thorough process to find other possible solutions. We have all seen that horror movie, so we must advise our clients of the pitfalls of their single-suitor, single-solution approach:

In re ICL Holding Co., Inc.: Third Circuit Upholds Escrow for Professionals and Settlement Sum Directly to General Unsecureds by 363 Purchaser over Objection of Administrative Claimant

In September 2015, the U.S. Court of Appeals for the Third Circuit issued an opinion in In re ICL Holding Co. Inc. that further reinforces the ability to use § 363 sales and settlements to resolve chapter 11 cases.

GM Successor Liability Decision and Appeal

The Asset Sales Committee will host John Hutton and Henry Jaffe as they discuss the GM successor liability decision, now on appeal in the Second Circuit, describing the arguments and positions taken by different parties on key issues in the case and discussing the potential impact of the ruling on appeal.

In re Family Christian: A Reminder to Practitioners of Factors to Consider When Evaluating Multiple Offers in Section 363 Sales

Section 363 sales are a common vehicle for a debtor and its creditors to receive fair value for the debtor’s assets through an open auction process supervised by the bankruptcy court. An open auction process is designed to generate a number of competitive offers for the debtor’s assets.

Asset Sales Committee Webinar Review: Oil & Gas Issues

On June 16, 2015, the Asset Sales Committee sponsored a webinar titled Buying and Selling Oil & Gas Assets in Bankruptcy Cases. The presentation, by Thompson & Knight Partner Ira L. Herman, Greenberg Traurig Shareholder Shari Heyen and Conway MacKenzie Managing Director Bryan M. Gaston, is available in ABI’s CLE Center.

Case Law on 363 Sales Continues to Evolve

Over the past two decades, chapter 11 has become the favored forum for the sale of distressed companies in the U.S. Section 363 of the U.S. Bankruptcy Code is a strong tool for maximizing the value of struggling companies and providing predictability in distress sales.

A Letter from Your Co-chairs

Post-Annual Spring Meeting is a time of change for ABI, including our committee's leadership! The term of John Hutton, our co-chair for the past several years, has ended, and Brad Sharp has been named as a new co-chair. Shaunna Jones has become our Newsletter Editor. To date, the Listserve Facilitator position remains open. If you are interested in joining the leadership team by filling this role, please email us. We thank those departing leaders who have served us well, and welcome aboard our new committee leaders.

Interpreting Plurality Decisions: Fracking, Supreme Court Style

Fracking, shorthand for hydraulic fracturing, is a type of drilling used by oil and gas prospectors. It involves drilling thousands of feet below the surface before gradually turning horizontal and continuing onward. As a result, an initially unsuccessful drilling site can give rise to several unique wells. Similarly, it is possible that a case that is unsuccessful at generating a unanimous decision may also present various twists and turns by a group of appellate judges, which can give rise to several unique opinions.

Using Sale Orders to Block Post-Sale Claims

Under § 363 of the Bankruptcy Code, a trustee or debtor in possession may sell property “free and clear of any interest in such property of an entity other than the estate” if certain conditions are met.[1] That property may be sold “free and clear of any interest” has the effect of blocking post-sale claims against the purchaser, as “principles underlying the finality of 363 sale orders” are considered “much too important” for a court to otherwise deny full enforcement.[2]

Annual Spring Meeting 2015: Asset Sales and Real Estate Committees

Don’t Restrict My Sale: The Enforceability of Restrictive Covenants and Easements in Assets Sales in Bankruptcy

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