The court-fashioned doctrine of "equitable mootness" has frequently been applied to bar appeals of bankruptcy court orders under circumstances where reversal or modification of an order could jeopardize, for example, the...more
The finality of asset sales and other transactions in bankruptcy is an indispensable feature of U.S. bankruptcy law designed to maximize the value of a bankruptcy estate as expeditiously as possible for the benefit of all...more
Exculpation clauses limiting the liability of certain entities for actions taken in connection with a bankruptcy case are a common feature of chapter 11 plans. However, courts disagree over the permitted scope of such...more
Section 363(m) of the Bankruptcy Code provides that the reversal or modification of an order approving a sale or lease of assets in bankruptcy does not affect the validity of the sale or lease to a good-faith purchaser or...more
6/19/2023
/ 363 Sales ,
Bankruptcy Code ,
Bankruptcy Court ,
Chapter 11 ,
Commercial Bankruptcy ,
Jurisdiction ,
MOAC Mall Holdings LLC v Transform Holdco LLC ,
Mootness ,
Sale of Assets ,
SCOTUS ,
Sears ,
Section 363 ,
Stays
To promote the finality of bankruptcy asset sales, section 363(m) of the Bankruptcy Code "moots" an appeal of an order approving a sale to a good-faith purchaser unless the party challenging the sale obtains a stay pending...more
The ability of a bankruptcy trustee or chapter 11 debtor-in-possession to sell assets of the bankruptcy estate "free and clear" of "any interest in property" asserted by a non-debtor is an important tool designed to maximize...more
In Stream TV Networks, Inc. v. SeeCubic, Inc., 2022 WL 2149437 (Del. June 15, 2022), the Delaware Supreme Court vacated and reversed a 2020 ruling by the Delaware Court of Chancery that the assets of Stream TV Networks, Inc....more
Bankruptcy and appellate courts disagree over the standard that should apply to a request for payment of a break-up fee or expense reimbursement to the losing bidder in a sale of the debtor's assets outside the ordinary...more
The finality of asset sales in bankruptcy is an indispensable feature of U.S. bankruptcy law designed to maximize the value of a bankruptcy estate as expeditiously as possible for the benefit of all stakeholders. To promote...more
The ability of a bankruptcy trustee or chapter 11 debtor-in-possession ("DIP") to sell assets of the bankruptcy estate "free and clear" of "any interest" in the property asserted by a non-debtor is an important tool designed...more
9/1/2020
/ Bankruptcy Code ,
Chapter 11 ,
Chapter 7 ,
Commercial Bankruptcy ,
Creditors ,
Debtors-in-Possession ,
Employee Retirement Income Security Act (ERISA) ,
Reorganizations ,
Section 363 ,
Successor Liability ,
Withdrawal Liability
The ability of a bankruptcy trustee or a chapter 11 debtor-in-possession ("DIP") to use "cash collateral" during the course of a bankruptcy case may be vital to the debtor's prospects for a successful reorganization. However,...more
6/8/2020
/ Bankruptcy Code ,
Bankruptcy Court ,
Business Judgment Rule ,
Chapter 11 ,
Collateral ,
Commercial Bankruptcy ,
Czyzewski v Jevic Holding Corp ,
Debtors-in-Possession ,
Mootness ,
Personal Property ,
Prohibited Transactions ,
Reorganizations ,
Section 363
Except for disastrous fires that sparked the largest bankruptcy filing of the year, liabilities arising from the opioid crisis, the fallout from price-fixing, and corporate restructuring shenanigans, economic, market, and...more
2/26/2020
/ Bankruptcy Code ,
Bankruptcy Court ,
Chapter 15 ,
Chapter 9 ,
Commercial Bankruptcy ,
Corporate Counsel ,
Corporate Restructuring ,
Debtor-Creditor ,
FERC ,
Foreign Bankruptcies ,
Fraudulent Conveyance ,
Mission Product Holdings Inc v Tempnology LLC ,
Non-Consensual Rights ,
Oil & Gas ,
PG&E ,
Publicly-Traded Companies ,
Section 363 ,
Section 365 ,
Third-Party Release Agrements
In Trinity 83 Dev., LLC v. ColFin Midwest Funding, LLC, 917 F.3d 599 (7th Cir. 2019), the U.S. Court of Appeals for the Seventh Circuit held that section 363(m) of the Bankruptcy Code does not moot an appeal involving a...more
8/20/2019
/ Appeals ,
Article III ,
Asset Purchaser ,
Bankruptcy Code ,
Chapter 11 ,
Commercial Bankruptcy ,
Debtors ,
Equitable Mootness ,
Equitable Relief ,
Mootness ,
Sale of Assets ,
Section 363 ,
Standing
For nearly 25 years, courts in the Ninth Circuit have consistently refused to sanction nonconsensual third-party releases as part of chapter 11 plans. A ruling recently handed down by the U.S. District Court for the District...more
8/20/2019
/ Asbestos Litigation ,
Asbestos Trust Claims ,
Bankruptcy Code ,
Bankruptcy Court ,
Chapter 11 ,
Collateral Estoppel ,
Commercial Bankruptcy ,
Cost-Sharing ,
Debtors-in-Possession ,
Reorganizations ,
Section 363 ,
Successor Liability ,
Third-Party Relationships ,
Third-Party Release Agrements
On September 21, 2018, the U.S. District Court for the District of Delaware affirmed a bankruptcy court's ruling that it had the constitutional authority to grant nonconsensual third-party releases in an order confirming the...more
12/21/2018
/ Article III ,
Chapter 11 ,
Commercial Bankruptcy ,
Counterclaims ,
Cramdown ,
Jurisdiction ,
Lack of Authority ,
Proof of Claims ,
Racketeering ,
Section 363 ,
Shareholders' Agreements ,
State Law Claims
In In re Millennium Lab Holdings II, LLC, 2017 BL 354864 (Bankr. D. Del. Oct. 3, 2017), the U.S. Bankruptcy Court for the District of Delaware ruled that it had the constitutional authority to grant nonconsensual third-party...more
11/22/2017
/ Appeals ,
Chapter 11 ,
Commercial Bankruptcy ,
Creditors ,
False Claims Act (FCA) ,
Non-Consensual Rights ,
Proof of Claims ,
Racketeering ,
Remand ,
Section 363 ,
Stern v Marshall ,
Third-Party Release Agrements
The ability of a trustee or chapter 11 debtor in possession ("DIP") to sell bankruptcy estate assets "free and clear" of liens on the property under section 363(f) of the Bankruptcy Code has long been recognized as one of the...more
8/15/2017
/ Appeals ,
Bankruptcy Code ,
Chapter 11 ,
Commercial Bankruptcy ,
Debt Restructuring ,
Debtors ,
Debtors-in-Possession ,
Free and Clear Transactions ,
Liens ,
Liquidation ,
Mortgages ,
Sale of Assets ,
Section 363 ,
Section 506 ,
Trustees