Asset Sales

Fisker & Free-Lance Star

The October 2nd conference call for ABI's Asset Sales Committee provided a brief overview of the Fisker Automotive opinions, as well as their progeny, including Free-Lance Star. The discussion also explored the practical implications of those decisions for practitioners representing different constituents in a restructuring. The call was led by Oscar N. Pinkas of Dentons US LLP in New York, and Justin F. Paget of Hunton & Williams LLP in Richmond, Virginia.

Commission’s Consideration to Surcharge Secured Lenders for 363 Asset Sales

The Asset Sales Committee hosted their most recent committee call on Wednesday, November 12. This call was titled "Bankruptcy Reform Commission’s Consideration of a Proposal to Surcharge Secured Lenders for 363 Asset Sales" and worked to more broadly inform and engage bankruptcy and restructuring professionals about the proposal being considered by the Bankruptcy Reform Commission to assess a charge on secured lenders for 363 asset sales in Chapter 11. Ms. Kathryn A. Coleman of Hughes Hubbard & Reed LLP and Mr. Gregory A.

The City, Its Creditors and the Art: What’s Next for the Detroit Institute of Arts?

Editor’s Note: This article was originally published by Law360 on April 24, 2014.
One of the highest-profile aspects of the City of Detroit’s chapter 9 case[1] has been the intense discussion of the fate of the Detroit Institute of Arts (DIA), which is almost unique among U.S. art museums in that its building and collection are owned by the city itself rather than by a charitable nonprofit entity. City ownership is what has put the DIA’s collection “in play,” as the city’s creditors are looking to the DIA’s rich collection as a potential source of repayment of the city’s debts.

Equitable Mootness Lives On in the Third Circuit

In In re Tribune Co., 2014 WL 2797042 (D. Del. June 18, 2014), the U.S. District Court for the District of Delaware upheld Tribune Company’s plan of reorganization, dismissing a series of appeals as equitably moot. The court’s decision is of particular interest because it comes on the heels of a significant decision by the U.S. Court of Appeals for the Third Circuit in In re SemCrude L.P., 728 F.3d 314 (3d Cir. 2013), which articulated a narrow construction of the doctrine of equitable mootness.

Buyer Beware: The Answer to “What Have We Got To Lose?” May Be “More Than We Thought”

Many potential buyers of assets out of bankruptcy assume that making a deposit gives them an option to walk away from the deal and lose nothing more than the amount they put down. In a recent case in the Southern District of New York, that assumption proved to be unwarranted — and costly to the reneging buyer, who ended up liable for damages equal to the difference between the price it had agreed to pay and the assets’ value as of the time of the purchaser’s breach.

Disposal of Customer Files: A Better Way

With the increase of bankruptcies among retailers, online merchants and other consumer companies, the accumulated marketing and ordering information embedded in these companies databases are growing more and more valuable. These firms have built sophisticated analytics to improve sales results by massaging the acquisition data of each and every customer. This data in no way was responsible for the company's demise. More than likely, if it was carefully pursued, the company would not be in a bankruptcy situation. The disposal value of this customer information is extremely time-sensitive.

Sales Transaction "Free and Clear of Liens" Not Immune from Appellate Scrutiny Despite a "Closing," Junior Lienholder's Rights Preserved

It doesn't take too much experience in the world of bankruptcy to learn that most of the time, when the proverbial train is leaving the station, it stops for no one. The bankruptcy court approves the transaction over objection and the objecting parties are unable to obtain a stay pending appeal. Because there is no stay pending appeal, the parties to the court-approved transaction head to closing table. The egg is scrambled and cannot be unscrambled. Any appeal is resisted, and often dismissed, on mootness grounds.

Bankruptcy Court Rejects Proposed Novel Use of FRE 502(d)

Rule 502 of the Federal Rules of Evidence (FRE), which became law in 2008, addresses whether a party’s disclosure of materials protected by the attorney-client privilege or the work-product rule effects a waiver and if so, whether that waiver should be considered a subject-matter waiver. Although parts of the rule restate prior law, FRE 502(d) provides specific authorization for a federal court to enter a new kind of order, decreeing that disclosure of a privileged document during litigation does not effect a waiver.

Cut to the Core: Supreme Court Curtails Bankruptcy Court Jurisdiction in Stern v. Marshall: Part I

Until the U.S. Supreme Court’s recent 5-4 decision in Stern v. Marshall,[1] it was safe to assume that conversations about Charles Dickens, a Playmate of the Year and an octogenarian billionaire rarely focused on the Constitution’s separation of powers. Now, it is equally safe to assume that most, if not all, will. 

Going Native: A Practical Guide to ESI in Native Format

On December 1, 2006, the Federal Rules of Civil Procedure were amended to establish rules to govern discovery of electronically stored information (ESI).[1] Courts nationwide have since issued scores of opinions to guide practitioners in applying the amended rules.

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