Written by: Eric W. Anderson
Parker Hudson Rainer & Dobbs LLP; Atlanta
Joshua J. Lewis
Parker Hudson Rainer & Dobbs LLP; Atlanta
Bankruptcy professionals have become quite accustomed to the increasingly common phenomenon of a troubled company filing a chapter 11 case and either simultaneously with the petition or very soon thereafter filing a motion under §363 of the Bankruptcy Code to sell all or substantially all of its assets. These liquidating chapter 11 cases have become so prevalent that some commentators have begun to predict the imminent death of the "traditional" chapter 11 reorganization.[1] The rise in the use of "363 sales" can be attributed to several factors, including the speed with which such sales can be accomplished in a chapter 11 case (compared to the time necessary to propose and confirm a plan) and the resulting reduction in expense. Just as important, investors and purchasers in the merger-and-acquisition markets in many instances demand that a sale of distressed assets be structured as a §363 sale so that a purchaser can take the assets free and clear of all liens and claims in a relatively quick procedure, and not have to entangle itself in the debtor's chapter 11 plan process. The certainty and finality of the §363 sale process are critical to these purchasers.
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Views From The Bench, co-sponsored by the ABI and the Georgetown University Law Center, recently concluded in Washington, DC. Each year Views From The Bench offers a unique opportunity for bankruptcy practitioners and bankruptcy judges to convene for top-notch CLE and keen insights. This year's conference featured topics including asset disposition, real estate issues, retail bankruptcies and more. Of interest to the business reorganization committee is the session "Confirmation Issues." Materials from the session are available below. Robert J. Rosenberg of Latham & Watkins, LLP in New York moderated the panel which included Hon. Leif M. Clark (W.D. Tex), U.S. Bankruptcy Court, Hon. Arthur J. Gonzalez, U.S. Bankruptcy Court (S.D.N.Y), Hon. Barbara J. Houser, U.S. Bankruptcy Court (N.D. Tex.). Mark D. Collins of Richards, Layton & Finger, PA in Wilmington, Del. served as facilitator.
Confirmation Issues (pdf)
The Winter Leadership Conference will be held Dec. 4-6 in Tucson, AZ, at the Westin La Paloma. This year's conference will feature another great group of sessions and speakers, as well as some top-notch entertainment! The Business Reorganization Committee will hold a session on Saturday morning at 9:30 a.m., entitled "Renewed Interest in the Three R's: Reinstatment, Repayment and Refinance - The New Rithmetic; The Allowance and Payment of Interest in Chapter 11 Cases." The speakers will include Martin Bienenstock of Dewey & LeBoeuf LLP in New York, Marc Kieselstein of Kirkland & Ellis LLP in Chicago, Isaac Pachulski of Stutman, Treister & Glatt, PC in Los Angeles and John Rapisardi of Cadwalader, Wickersham & Taft LLP in New York. Hon. Arthur J. Gonzalez, U.S. Bankruptcy Court (S.D.N.Y) will moderate the panel. Register for the conference at ABIWorld.
