Selling Bankruptcy Avoidance Actions: Navigating Inconsistent Approaches to Whether Trustee May Sell Chapter 5 Claims

A live 90-minute CLE video webinar with interactive Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Wednesday, January 18, 2023

1:00pm-2:30pm EST, 10:00am-11:30am PST

Early Registration Discount Deadline, Friday, December 23, 2022

or call 1-800-926-7926

This CLE webinar will guide bankruptcy lawyers through the complex issues surrounding the sale of Chapter 5 avoidance actions in bankruptcy. The program will cover whether such claims are or are not property of the estate that may be sold to third parties under Section 363(f), how the sale or assignment of such claims would be structured and documented, what factors courts consider when deciding whether to approve or deny such sales, whether it matters if the debtor is an entity or an individual or under what chapter the case is proceeding, and precisely what the "purchaser" receives or does not receive in the transaction.

Description

Courts are deeply divided over whether avoidance actions are non-transferrable statutory powers or property of the estate than can be sold pursuant to Section 363(f). Courts have articulated multiple rationales for approving or denying sales citing various factors, such as the identity of the proposed purchaser or on whose behalf the claims will be pursued. Courts must determine if the proper standard for approval is the debtor's business judgment or whether some benefit to the estate is required. The common law principles of maintenance, champerty, and barratry may also inform the inquiry.

Transfer of Chapter 5 avoidance claims may be proposed as a stand alone sale, as just one part of an asset purchase agreement, or first mentioned in motions to approve bidding instructions. If the Chapter 5 avoidance actions are transferred, many questions remain about the nature of the transfer as a sale or assignment, to what the claims may be subject, and whether the purchaser gets more or less than the estate or trustee had.

Listen as this renowned panel explores whether Chapter 5 avoidance actions are property of the estate that can be sold and the practical consequences of allowing such a sale.

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Outline

  1. Arguments that Chapter 5 actions are property of the estate that can be sold
  2. Arguments that Chapter 5 actions are statutory powers only
  3. Difference between sale of avoidance actions and committee derivative standing
  4. Structuring the sale
  5. Objecting to the sale

Benefits

The panel will review these and other key questions:

  • Does the plain language of the Bankruptcy Code permit any party other than the trustee or debtor in possession to exercise Chapter 5 powers?
  • What is the difference between selling an avoidance action and assigning it to a committee?
  • Must there be a benefit to the estate to justify the sale?
  • How should such a sale be structured and documented?
  • Is there consensus on the appropriate framework to employ in considering whether a trustee may sell or assign such claims?

Faculty

Miller, Evan
Evan T. Miller

Director
Bayard

Mr. Miller is a director at Bayard. He concentrates his practice in the areas of corporate bankruptcy and...  |  Read More

Singer, George
George H. Singer

Partner
Ballard Spahr

Mr. Singer practices in the areas of corporate and commercial law, including finance, financial restructuring, capital...  |  Read More

Attend on January 18

Early Discount (through 12/23/22)

Cannot Attend January 18?

Early Discount (through 12/23/22)

You may pre-order a recording to listen at your convenience. Recordings are available 48 hours after the webinar. Strafford will process CLE credit for one person on each recording. All formats include course handouts.

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