In the complex landscape of bankruptcy proceedings, the motion to sell assets under Section 363 of the Bankruptcy Code marks a pivotal moment that demands attention from creditors and other stakeholders. This legal mechanism allows a debtor to offload assets, potentially offering a fresh start under new ownership while aiming to maximize returns for creditors. Contrary to what some creditors might believe, their active involvement in this process is crucial. It’s not just about observing from the sidelines; stakeholders have a vested interest in ensuring the process unfolds in a way that protects their rights and maximizes their potential recovery.

A significant area of concern for stakeholders is the handling of executory contracts during the asset sale. Debtors typically aim to assume these contracts and then assign them to the purchaser, a step that necessitates curing any existing defaults. This makes it imperative for contract counterparties to meticulously review the sale documents to confirm proposed cure amounts and to understand the mechanisms for obtaining assurance about the purchaser’s capability to fulfill the contract terms moving forward. Moreover, the sale of preference claims and nonestate property introduces additional layers of complexity. The former can affect creditors’ future interactions with the business, while the latter emphasizes the need for timely objections to prevent the unauthorized sale of property not included in the estate.

The asset sale process also provides an opportunity for creditors to leverage objections to the sale or bid procedures as a strategic tool to influence the outcome of the bankruptcy case. Whether aiming to affect the assumption of a contract or to secure a more favorable position as a critical vendor, the act of filing an objection can serve as a powerful negotiation tactic. However, navigating these legal intricacies requires a deep understanding of bankruptcy law and strategic acumen. Engaging experienced bankruptcy counsel is essential for stakeholders to effectively protect their interests during a debtor’s asset sale. Active participation and informed decision-making are key to ensuring that stakeholders’ rights and objectives are fully represented and achieved throughout the sale process.

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Photo of David Fournier David Fournier

David represents various interests in complex bankruptcy proceedings in the District of Delaware and other jurisdictions. His clients include corporate debtors, secured and unsecured creditors, official creditors’ committees, foreign representatives, and others. David also has extensive experience as a mediator in bankruptcy litigation.

Photo of Evelyn Meltzer Evelyn Meltzer

Evelyn focuses her practice on corporate bankruptcy, insolvency, distressed M&A, and creditors’ rights. With more than 20 years of experience, Evelyn understands all facets of a problem or opportunity, strategically devising insightful, innovative, and practical solutions that protect and advance her clients’ interests.

Photo of Kenneth Listwak Kenneth Listwak

Ken has broad experience in bankruptcy and reorganization matters, including adversary proceedings and contested matters in complex bankruptcy cases, and advising and guiding clients through complex issues involving bankruptcy law and Delaware legal practice.

Photo of Tori Lynn Remington Tori Lynn Remington

Tori is an associate in the firm’s Finance and Financial Restructuring + Insolvency practice groups. She has been involved in complex chapter 11 proceedings and litigation matters, representing various parties in interest, including debtors-in-possession, DIP lenders, stalking horse purchasers, and creditors. Tori also…

Tori is an associate in the firm’s Finance and Financial Restructuring + Insolvency practice groups. She has been involved in complex chapter 11 proceedings and litigation matters, representing various parties in interest, including debtors-in-possession, DIP lenders, stalking horse purchasers, and creditors. Tori also has experience in the Court of Chancery representing assignees in Delaware ABCs.

Photo of Heather Smillie Heather Smillie

Heather is an associate in the firm’s Financial Restructuring + Insolvency Practice Group. She has represented corporate debtors, creditors, and lenders in complex chapter 11 cases, out-of-court restructurings, dissolutions, and wind-downs. Heather is experienced in guiding clients through the chapter 11 process and…

Heather is an associate in the firm’s Financial Restructuring + Insolvency Practice Group. She has represented corporate debtors, creditors, and lenders in complex chapter 11 cases, out-of-court restructurings, dissolutions, and wind-downs. Heather is experienced in guiding clients through the chapter 11 process and has regularly appeared and represented clients in the U.S. Bankruptcy Court for the District of Delaware.