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Section 363 Sale Issues

Level: Advanced
Runtime: 72 minutes
Recorded Date: May 19, 2021
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• Retail Bankruptcies During COVID-19
• The COVID "Rent Holiday" Cases
        - Modell's Sporting Goods & CraftWorks
        - Pier 1 Imports
        - Hitz Restaurant Group
        - Chuck E. Cheese (CEC) Entertainment
• What's Next?

Runtime: 1 hour, 12 minutes
Recorded: May 19, 2021


Are there limits to “free and clear” (GM)? This panel will discuss sales free and clear of leasehold interests, restrictive covenants and override royalties; conflicts between ?? 365 and 363(f) (lease- or license-stripping); assets free and clear of successorship in CBAs; selling free and clear of environmental liabilities (La Paloma, Exide); loan-to-own strategies; and the treatment of breakup fees (C&K Market, EFH).

This program was recorded as part of the American Bankruptcy Institute's New York City Bankruptcy Conference held on May 19th, 2021.

Provided By

American Bankruptcy Institute
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Howard S. Steel

Partner, Financial Restructuring
Goodwin Proctor LLP

Howard S. Steel is a partner in Goodwin Procter LLP’s Financial Restructuring practice in New York, where he represents creditors’ committees, bondholders, lenders, indenture trustees, landlords, and individual secured and unsecured creditors in all aspects of corporate restructuring. He has extensive experience in Securities Investor Protection Act (SIPA) proceedings, mass tort cases and distressed debt trading, and has advised clients in a variety of industries, including automotive, coal, health care, pharmaceuticals, financial services, gaming, real estate and retail.

Mr. Steel is a member of ABI, the Federal Bar Council and the Turnaround Management Association. He has dedicated significant time to pro bono matters, including representations relating to the Veterans Consortium Pro Bono Program, New York Bankruptcy Legal Aid & Pro Bono Services, Kids in Need of Defense (KIND), and representing the American Association for Justice and the New Jersey Association for Justice in submitting an amici curiae brief to the U.S. Supreme Court in connection with the Third Circuit’s decision in Diacetyl Plaintiffs v. Aaroma Holdings (In re Emoral), 740 F.3d 845 (3d Cir. 2014).

Prior to joining Goodwin in 2019, Mr. Steel was a partner at Brown Rudnick LLP and began his legal career at Kelley Drye & Warren LLP. He has been listed in The Legal 500 United States as a “Recommended Lawyer - Restructuring (including Bankruptcy) Corporate” for 2020, and in Benchmark Litigation’s “Under 40 Hot List” from 2016-19, Global Restructuring Review’s “40 Under 40” for 2016, and as a Super Lawyers “Rising Star” from 2014-19.

Mr. Steel received his B.A. from Duke University in 2001 and his J.D. from Columbia University in 2004.

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Samuel S. Kohn

Dorsey & Whitney LLP

Samuel S. Kohn is a partner in the New York office of Dorsey & Whitney LLP and practices in the area of business reorganizations, including complex chapter 11 cases and out-of-court restructurings. He represents large corporate debtors, creditors’ committees, secured lenders, distressed-asset acquirers, investment funds and banks. His experience spans a broad range of industries, including airlines, municipalities, health care, retail, real estate, food, financial services, energy, telecommunications, entertainment, manufacturing and shipping.

Mr. Kohn has been involved in virtually every major municipal restructuring in recent memory, both in and out of court, including the chapter 9 cases of Detroit and Jefferson County, Ala. In addition, he has represented major creditors in out-ofcourt restructurings of municipalities, including municipal debt issued by Harrisburg, Pa., Scranton, Pa., Atlantic City, N.J., and Hartford, Conn.

Mr. Kohn has authored numerous articles and is a frequent panelist on issues relating to municipal restructurings. Prior to becoming a lawyer, he was a Certified Public Accountant in the State of New York and founded and managed his own accounting firm.

Mr. Kohn received his B.A. from City University of New York, Queens College and his J.D. cum laude from Brooklyn Law School.

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Lisa M. Schweitzer

Senior Partner, Bankruptcy & Restrcturing
Cleary Gottlieb Steen & Hamilton LLP

Lisa M. Schweitzer is a senior bankruptcy and restructuring partner in Cleary Gottlieb Steen & Hamilton LLP’s New York office, where her practice focuses on financial restructuring, bankruptcy and commercial litigation, including cross-border matters. She has experience advising corporate debtors, individual creditors and strategic investors in both U.S. chapter 11 proceedings and restructurings in other jurisdictions in North America, Europe and Asia.

Ms. Schweitzer has served as lead counsel in some of the world’s most high-profile bankruptcy matters across North America, Europe and Asia, advising corporate debtors, creditors and counterparties in U.S. chapter 11 proceedings as well as in restructurings and risk-mitigation advice. She has advised many companies and creditors in various bankruptcy cases, and she has been providing strategic advice to several Fortune 100 U.S. and multinational companies on liquidity and restructuring advice arising from the COVID pandemic. She also continues to advise several leading financing institutions, including UBS and Credit Suisse, in matters relating to their resolution plans.

Ms. Schweitzer has advised clients in some of the most high-profile bankruptcy matters in North America, and her work repeatedly has been recognized by the business and legal press, including Chambers Global, Chambers USA, The Legal 500 U.S., IFLR 1000: The Guide to the World’s Leading Financial Law Firms, The International Who’s Who of Business Lawyers and The International Who’s Who of Insolvency & Restructuring Lawyers. She also was honored as one of the “Top 250 Women in Litigation” by Benchmark Litigation and as a “Dealmaker of the Year” and “Dealmaker in the Spotlight” by The American Lawyer.

Ms. Schweitzer received her B.A. magna cum laude and Phi Beta Kappa from the University of Pennsylvania and her J.D. magna cum laude from New York University School of Law, where she was elected to the Order of the Coif.

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Paul D. Leake

Skadden, Arps, Slate, Meagher & Flom LLP

Paul D. Leake is a partner and global co-head of Skadden, Arps, Slate, Meagher & Flom LLP’s corporate restructuring practice in New York. He has led numerous large and complex U.S. and crossborder corporate workouts and restructurings.

Mr. Leake represents debtors, commercial banks and bank groups, distressed investment funds, noteholder committees, official creditors’ committees and distressed investors in all forms of corporate restructurings. He focuses on advising U.S. and transnational businesses on chapter 11 reorganizations, out-of-court restructurings, secured financings, debtor in possession loans, distressed acquisitions and sales, and investments in troubled companies.

Mr. Leake has led high-profile restructurings in most major industries, including retail, health care, oil and gas, shipping, mining, airlines, energy, publishing, telecom, satellite communications and real estate. He previously served as head of the corporate restructuring and reorganization practice at another large global law firm. He has represented ad hoc noteholder and official unsecured creditor committees, senior secured lenders and lender groups, and investment funds and strategic investors in substantial, high-profile distressed M&A transactions.

Mr. Leake is regularly listed in rankings of leading restructuring lawyers in the U.S. and globally, including Chambers USA, Chambers Global, The Legal 500, K&A Restructuring Register, IFLR1000, The Best Lawyers in America and Turnarounds & Workouts. He has published and lectured extensively on U.S. and transnational insolvency matters.

Mr. Leake is a member of the board of directors of Her Justice, a nonprofit organization that supports women living in poverty in New York City by recruiting and mentoring volunteer lawyers to provide free legal help to address individual and systemic legal barriers. He also is a Fellow of the American College of Bankruptcy.

Mr. Leake received his B.A. from Amherst College in 1985 and his J.D. from Columbia University in 1988.

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Michael O'Hara

Managing Director, Debt Advisory & Restructuring Group
Jefferies LLC

Michael O’Hara is co-head of the U.S. and a managing director in the Debt Advisory and Restructuring Group of Jefferies LLC in New York. He provides investment banking advisory services on a variety of restructuring and special-situation assignments for companies, creditors, corporate board committees, and acquirers and sellers of distressed assets.

Mr. O’Hara’s notable company/debtor assignments include AbitibiBowater, Akorn Pharmaceuticals, American Axle & Manufacturing, AIG, Ascent Resources Marcellus, Brock Group, Energy Future Holdings, EXCO Resources, Fusion Connect, Mallinckrodt, MoneyGram, Mrs. Fields, Quad Graphics (re: Vertis), RockPile Energy Services, Samson Resources, Southland Royalty Co., Taro Pharmaceutical, Travelport, Triangle Petroleum and Washington Mutual, among others. His creditor assignments have included Chaparral Energy, Dana, Delphi, Eastman Kodak, EP Energy, Extraction, Gulfport, Hostess Brands, Intrawest, Jupiter Resources, Lehman, Preferred Sands, Quicksilver Resources, Ultra Petroleum and Vanguard Natural Resources, among others.

Mr. O’Hara has worked on several sovereign situations, including Argentina (Enron/Azurix), Greece and Iceland (Kaupthing). He has served as a guest lecturer at the University of Chicago Booth School, Columbia Business School and the Wharton School at the University of Pennsylvania, among others, and has participated in many restructuring industry conferences.

Before joining Jefferies, Mr. O’Hara was a partner in the Restructuring and Special Situations Group of PJT Partners (formerly Blackstone). He also previously worked in the M&A groups at Wasserstein Perella & Co. and Stephens Inc.

Mr. O’Hara received his B.S. in finance from Georgetown University and his M.B.A. from Columbia Business School.

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Hon. Michael E. Wiles

U.S. Bankruptcy Court, Southern District of New York

Hon. Michael E. Wiles is a U.S. Bankruptcy Judge for the Southern District of New York in New York, sworn in on March 3, 2015.

Previously, was was a partner with Debevoise & Plimpton LLP, where he focused on general commercial litigation and bankruptcy. Judge Wiles co-authored the Collier Business Workout Guide (Mathew Bender 2007) and has appeared on panels organized by the Association of the Bar of the City of New York, the American College of Investment Council and others to discuss current issues in bankruptcy litigation. He is also a former member of the Committee on Bankruptcy and Reorganization of the Association of the Bar of the City of New York. His publications and written CLE materials include “May Parties Consent to Bankruptcy Court Adjudication of ‘Stern Claims’” (September 2014) (presented at a continuing legal education session at the Association of the Bar of the City of New York); “Ponzi Schemes and Avoidance Actions: 3 Issues,” Law360 (March 7, 2011); “The Good Faith Defense to Fraudulent Transfer Claims” (December 2010) (presented at a continuing legal education session at the Association of the Bar of the City of New York); and “At the Crossroads: The Intersection of the Federal Securities Laws and the Bankruptcy Code,” The Business Lawyer (November 2007).

Judge Wiles received his A.B. degree from Georgetown University in 1975 and his J.D. from Yale Law School in 1978.

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