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"Bankruptcy courts often address causes of action and claims arising under or governed by state law. Often presented is the question of which state’s laws to apply. To be discussed here is the further question raised: how does a bankruptcy court make a choice of law determination?
"The modern trend in chapter 11 is to liquidate the business as a going concern through a sale under section 363. This is particularly true in cases where the primary secured lender’s debt exceeds the value of the business.
"Most observers are familiar with the old aphorism that “there is law and there is asbestos law”—the notion being that legal protections for defendants were stripped away over time by both Federal and state courts attempting to deal with asbestos litigation. A relatively benign interpretation is that courts had to find innovative ways to deal with overwhelming masses of claims and many of these innovations backfired inadvertently.
This article is the first in a series about how bankruptcy trustees and advisors can create cash from assets that have traditionally been difficult to monetize. This installment focuses on generating cash from both highly-aged and previously written-off commercial receivables.
The sale of a debtor's assets outside of a confirmed plan of reorganization is accomplished pursuant to §363(b) of the Bankruptcy Code. There has traditionally been tension within the courts when a proposed §363 sale involves the selling of all or substantially all of a debtor's assets, or a sale is proposed outside such debtor's ordinary course of business.
"Intangible assets and intellectual property are indeed a primary value source for a broad range of sophisticated national and multi-national companies. These assets are a new source of financial strength as well as security and securitization."
This case study discusses Wellington Leisure Products Inc. (WLP) (seller), a consumer products manufacturer with diverse product lines: cordage (rope), both commercial and retail; PDFs - life vests; pool toys; patio furniture (wood furniture, umbrellas, and replacement cushions); and hunting products (deer hunting scents/lures). The seller was operating in chapter 11, run by a turnaround manager who was brought in after fraud was alleged. The seller had no secured debt, and about $65 million in unsecured debt, about $40 million of which was with banks.
