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Antitrust Concerns May Block Section 363 Sales

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Antitrust Concerns May Block Section 363 Sales
Bankruptcy Court Orders May Not Be as Bulletproof as They Seem

May 14, 2009: by Ryan K. Cochran, Bobby Guy, Katie Grainer Stenberg

(TMA International Headquarters) A Bankruptcy Code Section 363 sale is often the exit strategy of choice for distressed companies and their suitors. There are a number of reasons for this, one of the most important being the ability to get a Bankruptcy Court to issue an order blessing the sale and protecting the buyer from prickly liabilities. With Chapter 11 filings now predicted to hit historic highs and Wall Street’s remaining liquidity sources lost in a sea of confusion, the prevalence of 363 sales is likely to increase dramatically.

Any decision that rocks the boat for 363 sales is worthy of attention, and in the last year, a furor has surrounded the decision of Clear Channel Outdoor, Inc. v. Knupter (In re PW, LLC),1 which has far-reaching implications for buyers and senior lenders. In the shadow of Clear Channel, however, one significant decision in the 363 realm seems to have escaped notice — the ruling of the 11th U.S. Circuit Court of Appeals in Gulf States Reorganization Group, Inc. v. Nucor Corp. Read More