Asset Sales

Annual Spring Meeting 2016: Asset Sales/Labor & Employment

Labor Issues in 363 Sales: Things You Need to Know

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

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.

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