by Warren J. Martin, Jr.
Porzio, Bromberg & Newman PC; Morristown, N.J. and New York
The following hypothetical demonstrates the scope and application of §327(a) to competing neighboring urban hospitals: Two nonprofit hospitals are separated by three miles in a densely populated low-income urban community. Holy Mackerel sits at one end of Main Street while Baruch Gefilte is at the other. Both are suffering financial difficulties.
Recently, Baruch Gefilte commenced a chapter 11 proceeding with the intent of selling its assets under § 363 of the Bankruptcy Code. Before the bankruptcy filing, Holy Mackerel made an unsuccessful out-of-court bid for the assets of Baruch Gefilte, but Holy Mackerel is no longer interested in pursuing that bid. Shmuley O’Malley, a talented bankruptcy attorney who represents Holy Mackerel in its out-of-court restructuring has been asked by some of the unsecured creditors of Baruch Gefilte to pitch the Baruch creditors’ committee. Can O’Malley represented Holy Mackerel in its out-of-court restructuring while simultaneously representing the chapter 11 creditors’ committee of neighboring Baruch Gefilte?
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