by: Seth Goldman
Munger, Tolles & Olson LLP; Los Angeles
Derek J. Kaufman
Munger, Tolles & Olson LLP; Los Angeles
In In re Douglas Ray, [1] the Ninth Circuit recently held that a bankruptcy court lacks jurisdiction to reopen a closed case to preclude a collateral attack on its prior, final sale order.
Background
Douglas M. Ray (the debtor), who co-owned the Battle Ground Shopping Mall, filed a chapter 11 case in August 2000. The bankruptcy court authorized Ray to enter into a purchase agreement with Battle Ground Plaza LLC (BG Plaza), which provided for the sale of the mall and granted BG Plaza a right-of-first-refusal for a separate, half-acre adjoining parcel. In 2002, the court approved a reorganization plan, which provided for the consummation of the BG Plaza transaction and specifically referenced a potential future sale of the adjoining parcel. [2] The case remained open while the debtor tried to locate a purchaser for the adjoining parcel.
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ABI's 29th Annual Spring Meeting will be held March 31 - April 3, in National Harbor, Md. The Asset Sales Committee will give a joint presentation with the Secured Credit Committee titled “Plan Sales Revisited v. Section 363 Sales.” You will also want to attend the session entitled “Quick Sales, Credit-Bidding and the 363 Process,” which will discuss the challenges faced in marketing a financially distressed business and the key issues encountered while attempting to maximize value for stakeholders. With these panels and dozens of other presentations, the Annual Spring Meeting provides the opportunity for earning up to 15.75/18.5 CLE/CPE credits, including 3 ethics credits. Optional events, including a group outing to watch the Cleveland Cavaliers take on D.C.'s own Washington Wizards, and final night entertainment with LeAnn Rimes make this an event not to miss!
While you are there, don’t forget to check out the membership table for tutorials and information on ABI’s newest products – Volo, Asset Sales Databank and our exclusive online Code and Rules – as well as a chance to win a free Kindle®!
Click here to register.
In December 2010, at the 22nd Annual Winter Leadership Conference, the Asset Sales Committee made a joint presentation with the Business Reorganization Committee. The presentation was titled "Environmental Issues in Chapter 11 Sales and Reorganizations," and touched on topics such as state environmental laws, timing issues, asset sales and reorganizations. The panel was moderated by Christopher R. Mirick of Cadwalader, Wickersham & Taft LLP in New York, and also included Pierre G. Armand of the U.S. Department of Justice in New York; James Redwine of AlixPartners LLP in Baton Rouge, La.; and Adam P. Strochak of Weil, Gotshal & Manges LLP in Washington, D.C.
Environmental Issues in Chapter 11 Sales and Reorganizations
In January, at the Rocky Mountain Bankruptcy Conference, there was a presentation of interest to the committee titled "'Romancing the Stone': Successful Credit-Bidding in a Dangerous World (for Lenders, That Is!)." The panel gave an overview of Bankruptcy Code § 363 Sales and discussed key sale order protections and objections to bankruptcy sales. The panel was moderated by Carl A. Eklund of Ballard Spahr LLP in Denver. It also included Hon. A. Bruce Campbell of the U.S. Bankruptcy Court (D. Col.) in Denver; Steven N. Cousins of Armstrong Teasdale LLP in St. Louis; Abid Qureshi of Akin Gump Strauss Hauer & Feld LLP in New York; and David B. Shemano of Peitzman, Weg & Kempinsky LLP in Los Angeles.
"Romancing the Stone": Successful Credit-Bidding in a Dangerous World (for Lenders, That Is!)
Did you know that all of ABI's publications are written by experts in the field and are widely used by the bankruptcy bar and bench? You can own these same publications by visiting the online ABI Bookstore. The ABI Bookstore carries over 40 publications, offers several bundled packages for your convenience and includes free ground shipping!
As a professional in the Asset Sales field, you may find A Comparison Shopping Guide for 363 Sales an interesting read. Written by Kelly A. Frazier, the "Comparison Shopping Guide for 363 Sales" provides an in-depth review and analysis of asset sales approved pursuant to §363 of the Bankruptcy Code in various industries and in numerous jurisdictions across the United States. The Guide will assist potential buyers and sellers, and the professionals who represent them, in comparing terms and conditions of 363 sale transactions to determine what the market has to offer (and what it doesn't). The book analyzes more than 25 key provisions in purchase agreements approved in bankruptcy cases, including break-up fees, expense reimbursement, record retention and transition services. The Guide also provides an overview of a debtor's restructuring options and discusses the bankruptcy sale process in general, including the typical (and some atypical) steps to a successful sale, the ability to sell assets free and clear of liens and other interests, the assumption and assignment of executory contracts as part of the sale, the availability of an exemption from certain taxes, and other key issues to consider when deciding whether to buy assets or equity interests through a 363 sale.
Visit the ABI Bookstore for a variety of bankruptcy-related titles!
ABI is pleased to announce the launch of the newly updated and enhanced ABI Journal Online. ABI Journal Online provides immediate access to the current issue of the ABI Journal as well as issues dating back to the year 2000. ABI members are able to search ABI Journal Online by year and issue, keyword, author and column. In addition, members can submit articles for publication. Use your ABIWorld login and password to access the site.
Click here to view the new site.
ABI would like to invite you to browse one of our newest products, the e-Learning website. Here you can purchase recordings of various ABI conference sessions, which will assist you in earning your CLE credits - all from the comfort of your home or office! Recordings are tagged by topic, and each provides you with a listing of states that have approved CLE credits for each individual video. From this site you can also request a certificate of completion, obtain the session's related materials and view a step-by-step guide for first-time users of the e-Learning website.
Click here to view the Asset Sales programs available from 2010 to today.
