Selling Chapter 5 Avoidance Actions: Navigating Inconsistent Case Law, Structuring or Objecting to the Sale
A live 90-minute CLE video webinar with interactive Q&A
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.
Outline
- Arguments that Chapter 5 actions are property of the estate that can be sold
- Arguments that Chapter 5 actions are statutory powers only
- Difference between sale of avoidance actions and committee derivative standing
- Structuring the sale
- 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
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
Mr. Miller is a director at Bayard. He concentrates his practice in the areas of corporate bankruptcy and restructuring, representing debtors (both voluntary and involuntary) and trustees, in addition to asset purchasers, landlords, official committees of unsecured creditors, secured creditors, vendors, and preference and fraudulent transfer litigants in bankruptcy courts across the country. Mr. Miller's clientele stems from a wide range of industries, including aviation, blockchain/cryptocurrency, restaurants, insurance, retail, healthcare, energy, and education, among many others, and he has worked with them on both in-court and out-of-court restructuring matters. He is a frequent speaker and author on these topics and others in the restructuring space, including with respect to cryptocurrency, blockchain, and the treatment and valuation of virtual assets in bankruptcy. Mr. Miller is also a certified mediator for the United States Bankruptcy Court for the District of Delaware and is included on the Register of Mediators and Arbitrators maintained by the Court. He has also served as an expert witness in the areas of restructuring and insolvency.
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George H. Singer
Partner
Holland & Hart
Mr. Singer practices in the areas of corporate and commercial law, including finance, financial restructuring, capital... | Read More
Mr. Singer practices in the areas of corporate and commercial law, including finance, financial restructuring, capital recovery, and bankruptcy. He negotiates senior and subordinated financing arrangements and has experience with structuring credit facilities, perfecting finance documentation, and closing secured and lease finance transactions. Mr. Singer regularly represents lenders, lessors, funds, committees, business debtors, guarantors, and creditors in financial workouts, restructurings, distressed-sale transactions, intercreditor disputes, lender liability claims, successor liability issues, and preferential and fraudulent transfer litigation. He has been practicing for over 20 years and regularly advises publicly and privately held companies on corporate governance, debt and equity financings, licensing issues, and risk management. Mr. Singer serves as corporate counsel on behalf of buyers and sellers and venture capitalists in complex merger, acquisition, divestiture, and joint-venture transactions.
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