I. Introduction

Assets sales in bankruptcy proceedings are accomplished pursuant to Section 363 of the Bankruptcy Code.1 The vast majority of bankruptcy sale orders go unchallenged, largely because sale orders are "final orders" for res judicata2 purposes and the buyer receives good and marketable title "against the world." The Bankruptcy Code offers protection to the reasonable expectations of good faith third-party purchasers by insulating Section 363 orders from appellate review, absent a stay pending appeal, thereby safeguarding the finality of the sale.3 The buyer of bankruptcy assets understandably achieves an elevated sense that the buyer's ownership rights are legally protected.

Notwithstanding the protections provided in Section 363 bankruptcy sales, an asset purchaser may nevertheless be subject to antitrust liability and, in certain circumstances, a divesture order. While Section 363 orders shield against challenges to the buyer's right to ownership of the bankruptcy assets, antitrust liability may arise from the bankruptcy sale's impact on competition. Bankruptcy courts have not historically addressed antitrust liability in ruling on Section 363 sales. Two Bankruptcy cases in particular, Gulf States and Christ Church, bring into sharp focus the potential for antitrust liability arising from Section 363 sales. These cases show that buyers of bankrupt assets are not insulated from antitrust claims simply by virtue of asset sale approval procedures of Section 363 of the Bankruptcy Code.

Similarly, two recent antitrust actions brought by the federal government under Section 7 of the Clayton Act challenging consummated transactions outside of the bankruptcy arena give further reason to pause and evaluate the potential antitrust exposure associated with Section 363 sale orders. In both St. Luke's and Bazzarvoice,4 the federal government successfully brought suit under Section 7 of the Clayton Act to enjoin and unwind deals between competitors because of the likelihood that the transactions would substantially lessened competition in a relevant market. Put another way, the consummation of the transaction itself violated the antitrust laws because it resulted in an impermissible increase in market concentration that could foreseeably lead to a substantial lessening of competition in the relevant market.

St. Luke's and Bazzarvoice underscore an often overlooked relationship between the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (Section 7A of the Clayton Act) ("HSR")5 and Section 7 of the Clayton Act.6 HSR requires parties to report certain mergers and acquisitions to the government to permit review of the potential concentration problems before a transaction closes. If the transaction does not pose a competitive problem, it closes. If the transaction does pose a competitive problem, it may not. Pre-merger review spares the parties to a merger or acquisition the expenses attributable to divestiture in the event the transaction is not permitted to close. Section 7 of the Clayton Act, by contrast, applies to mergers and acquisitions of stock or assets the effect of which "may be substantially to lessen competition, or to tend to create a monopoly" irrespective of whether the merger or acquisition was reportable under HSR. St. Luke's and Bazzarvoice illustrate that transactions falling below HSR reporting thresholds are not shielded from antitrust scrutiny and may be subject to a forced unwinding when the assets are acquired by a competitor.

Similar issues also play out in the bankruptcy context. Orders entered by bankruptcy courts approving the sale of assets that were not reportable under HSR were long thought to immunize a Section 363 purchaser from adverse claims, particularly if the sale is "free and clear" of any interests in the property and the order includes an express finding that the purchase was in "good faith." However, recent attempts to impose antitrust liability on purchasers of assets in bankruptcy sales – that were otherwise not reportable under HSR - have called that perception into question. This Article examines the interplay of Sections 7 and 7A of the Clayton Act and Section 363 of the Bankruptcy Code.

II. The Relevant Statutory Provisions

A. Sections 7 and 7A of the Clayton Act

Section 7 of the Clayton Act,7 as amended, prohibits, with certain exceptions, mergers and acquisitions of stock or assets in interstate commerce the effect of which "may be substantially to lessen competition, or to tend to create a monopoly." The salient, forward-looking question is whether a merger or acquisition will likely create or enhance impermissible levels of market power after closing. Horizontal mergers, those between direct competitive rivals, raise the highest concern under Section 7. Civil suits objecting to the harmful effects of a merger or acquisition may be brought by the Antitrust Division of the Department of Justice ("DOJ"), the Federal Trade Commission ("FTC"), or even a private party. There are no minimum transaction values applicable to a Section 7 civil suit.

Section 7A of the Clayton Act, (the Hart-Scott-Rodino Antitrust Improvements Act of 1976), as amended, requires the parties to large mergers or acquisitions of stock or assets to file a premerger notification forms with the DOJ and the FTC to permit the agencies time to review the transaction and evaluate potential anti-competitive effects. Generally, a premerger notification is required when the transaction meets or exceeds a minimum dollar value between parties of a certain size (referred to as "thresholds"). If a transaction is reportable, the parties to the transaction are required to strictly observe a waiting period before consummating the transaction. Each year the FTC announces new thresholds to account for changes in the gross national product.8 While both the DOJ and FTC are notified of the transaction, only one agency will review it.9 If the governments' review does not reveal competitive concerns, the transaction is permitted to close. If, on the other hand, the government's review believes the transaction will lead to an impermissible level of concentration - which may substantially lessen competition or tend to create a monopoly - the government will take steps to prevent the transaction from closing, including filing an enforcement action to enjoin the transaction.

B. Section 363 of the Bankruptcy Code

Section 363(b) of the Bankruptcy Code10 authorizes a trustee or debtor in possession, after notice and a hearing, to sell the assets of the estate. If certain conditions are met, the sale may be made "free and clear of any interest in such property".11 Further, if the bankruptcy court finds that the buyer purchased the property in good faith, reversal or modification of the sale order on appeal does not affect the validity of the sale, unless the sale order was stayed pending appeal.12

The Bankruptcy Code expressly anticipated the application of the reporting requirements of HSR, specifically requiring premerger notification to the government. If the sale transaction exceeds the HSR reporting thresholds, Section 363 (b)(2) requires the trustee or debtor in possession to give the required premerger notification to the government. Bankruptcy court approval of the sale must await the expiration of the 15-day waiting period, or longer if extended.13

C. The question posed: Does a sale of assets under Section 363 of the Bankruptcy Code that was not reportable under Section 7A of the Clayton Act expose the buyer to antitrust scrutiny under Section 7 of the Clayton Act?

This statutory framework allows a bankruptcy court dealing with a proposed sale of assets not meeting HSR reporting thresholds, after notice and a hearing, to: (1) authorize the sale of assets free and clear of any interest in the property, (2) find the purchase to have been made in good faith, and (3) deny a request for stay pending appeal of the sale order. Under these circumstances, is the good faith purchaser of assets immune from any antitrust or other liabilities based on its purchase of the debtor's asserts? Two cases which raised these issues took two very different paths and do not necessarily provide satisfactory answers.

III. Two Bankruptcy Sales; Two Very Different Results

A. Gulf States Steel

In Gulf States Steel,14 the Chapter 7 trustee of Gulf States Steel, Inc. of Alabama ("Gulf States") filed a motion under Section 363 of the Bankruptcy Code to sell the debtor's steel mill assets (the "Steel Mill Assets") to Gulf States Reorganization Group ("Group") for $5 million or to the highest bidder under bidding procedures established by the bankruptcy court.15 Gadsden Industrial Park, LLC ("Park"), an entity formed by Nucor Corporation ("Nucor"), which was a competitor of Gulf States, and Casey Equipment Corporation ("Casey"), submitted a competing bid in the amount of $5.25 million, triggering an auction.16 Group contacted the Federal Trade Commission ("FTC") about Nucor's involvement with Park, but the FTC did not take any action.17 Neither Group nor any other prospective purchaser was able to top Park's final bid for the Steel Mill Assets in the amount of $6.3 million, and Gulf States' trustee accepted the bid.18 Therefore, the transaction fell well below the HSR thresholds and did not have to be reported to the federal government.

At the sale hearing, Group objected to the sale of the Steel Mill Assets to Park, but not on antitrust grounds.19 In overruling Group's objection and approving the sale, the bankruptcy court expressly found that the trustee had satisfied the provisions of Section 363(f) and, therefore, authorized the sale free and clear of liens and other interests.20 The bankruptcy court also found that Park was a good faith purchaser under Section 363(m).21 Thus, on September 27, 2002, the bankruptcy court entered an order approving the sale of the Steel Mill Assets to Park (the "Sale Order").22 The bankruptcy court denied the objecting parties' motion for stay pending appeal.23

Less than a month after the Sale Order was entered, Group sued Park, NuCor, and Casey in the federal district court for the same judicial district in which the Gulf States bankruptcy case was pending.24 In its complaint, Group alleged that the sale of the Steel Mill Assets to Park violated Sections 1 and 2 of the Sherman Act.25 Specifically as to the Section 2 claim, which also implicated Section 7 of the Clayton Act26, Group claimed that, even before the bankruptcy sale, Nucor controlled 85% of the relevant market, that it wanted to and had the ability to compete with Nucor in the relevant market, and that the Steel Mill Assets constituted substantially all of the assets necessary for a potential market entrant to begin operations and compete.27 Park, Nucor, and Casey moved for summary judgment and initially argued, among other grounds, that Group was estopped from contesting the factual findings in the Sale Order.28 In a subsequently filed motion for summary judgment, however, Park, NuCor, and Casey withdrew their estoppel argument and limited their arguments to antitrust defenses and other grounds.29

The district court granted summary judgment in favor of Park, Nucor, and Casey on three grounds: "(1) The Group lacked Article III standing because it did not show that the defendants had caused its injury; (2) the Group lacked "antitrust standing" because it failed to demonstrate "antitrust injury," that is to say injury of the sort that the antitrust laws are meant to redress; and (3) the defendants' actions could not constitute a violation of the antitrust laws because they increased competition in the bankruptcy auction."30 On appeal, the Eleventh Circuit, reversed the district court, concluded that Group had properly demonstrated causation and antitrust injury, and remanded the case to the district court to determine whether the "challenged transaction", that is, the Sale Order, violated the antitrust laws.31

On remand, the district court again granted summary judgment in favor of Park, Nucor, and Casey.32 On appeal, the Eleventh Circuit affirmed, and, just last year, the Supreme Court denied certiorari.33 Thus, nearly 12 years after the Sale Order was entered, the Gulf States Steel litigation came to an end.

Gulf States Steel stands for the proposition that a sale of assets under Section 363 of the Bankruptcy Code – which were not reportable under HSR – are nonetheless subject to antitrust scrutiny.

B. Christ Hospital

In re Christ Hospital also involved a sale of assets under Section 363 of the Bankruptcy Code.34 In Christ Hospital, substantially all of the debtor's assets were put up for sale through a court-supervised auction.35 After a hearing, the bid of the highest bidder, Hudson, was approved through an order entered by the bankruptcy court (the "Sale Order").36 The transaction's value was approximately $36 million and thus was not a reportable transaction under HSR. One of the debtor's major creditors, Prime Healthcare Services, Inc. ("Prime"), did not submit a bid for the debtor's assets and did not appear at the hearing on the approval of the sale.37 The Sale Order included express findings that Hudson was a "purchaser in good faith" under Section 363(m) of the Bankruptcy Code and that the debtor's assets were being sold to Hudson "free and clear of 'Liens and Claims'" under Section 363(f).38 It does not appear that any party in interest appealed the Sale Order or obtained a stay pending appeal.

Approximately one year after the Sale Order was entered, Prime sued Hudson in state court based on the sale of the debtor's assets to Hudson and related alleged conduct.39 In its complaint against Hudson, Prime asserted the following causes of action: "First Count (Violation of the New Jersey Anti-Trust Act, N.J.S.A. 56:9-3 - Conspiracy); Second Count (Violation of the New Jersey Anti-Trust Act, N.J.S.A. 56:9-4(a) - Monopoly); Third Count (Tortious Interference in Contractual Relations); Fourth Count (Tortious Interference with Prospective Economic Gain); and Fifth Count (Unfair Competition)."40

Initially, Hudson defended itself in the state court action by filing a motion for dismissal based on inadequacy of the Prime's pleading.41 The state court granted Hudson's motion in part and dismissed without prejudice the first and second counts and the third, fourth, and fifth counts as to other hospitals but denied dismissal of the third, fourth, an fifth counts as they related to Christ Hospital.42

Shortly thereafter, Hudson took a different tack and filed a motion in the bankruptcy court asking the court to enjoin Prime from pursuing the state court action.43 The bankruptcy court granted Hudson's motion, but the injunction against Prime was "limited to the collateral attack in the State litigation to those counts (the remaining active claims) which seek damages for economic torts said to have been committed by Hudson in connection with its Section 363(b) purchase of hospital assets."44

On appeal to the district court, Prime argued that its state antitrust and common law claims were not "interests" within the scope of 11 U.S.C. § 363(f) and, therefore the sale of the debtor's assets could not have been sold free and clear of those claims.45 In a decision entered late last year, the district court rejected Prime's argument, noting that, although the Bankruptcy Code does not define the term "interests", "courts have recognized the broadening trend in defining the scope of sale-affected interests in property,"46 and that "[i]nterests in property afforded sale protections thus may refer broadlyto 'obligations that are connected to, or arise from, the property being sold.'"47 The district court, therefore, concluded that the bankruptcy court correctly found that Prime's common law claims were interests for the purpose of the "free and clear" provisions of the Sale Order.48

Prime also argued that the bankruptcy court did not consider Hudson's prepetition conduct in making its "good faith" finding and that Prime's state law claims against Hudson were not a collateral attack on the bankruptcy's finding.49 The district court, however, agreed with the bankruptcy court that the "good faith" finding, "'bec[ame] another target for Prime's collateral attack."50 The district court also found that the bankruptcy court had clearly considered Hudson's prepetition conduct in entering the Sale Order.51 Therefore, the district court concluded that Prime's claims against Hudson were a collateral attack on, not only the "free and clear" provisions of the Sale Order, but also the "good faith" finding as well.52

Finally, the district court rejected Prime's argument that the bankruptcy court's injunction order violated Prime's due process rights. The district court noted that Prime had a prepetition contract to purchase the very assets that had been sold under Section 363 to Hudson, had a financial interest in the outcome of the bankruptcy proceeding, and had filed a proof of claim in the bankruptcy case.53 Therefore, the district court concluded that, "although it was represented by knowledgeable counsel, Prime chose not to object to the transfer of the hospital assets at any stage and cannot now claim that it was unaware that the Section 363 sale included free and clear and finality protections."54

Thus, Christ Hospital stands for the proposition that, under certain circumstances, a purchaser of assets in a Section 363 bankruptcy sale may be protected from antitrust claims and other claims asserted by certain other parties. The case does not, however, go so far as to hold that Sections 363(f) and (m) of the Bankruptcy Code can shield a purchaser of assets from all antitrust attacks.

IV. Analysis

If the purchaser of asserts in a Section 363 bankruptcy sale is not a direct competitor of the seller of those assets in the relevant market, the issues raised by Gulf States and Christ Hospital should cause little competitive concern because the sale itself would not (should not) increase competitive concentration levels in the relevant market. On the other hand, when the buyers of assets are market participants, such as NuCor and Prime, the concerns raised in Gulf States and Christ Hospital will be at play. That is not to say, however, that an asset purchaser should not seek "free and clear" and "good faith" findings in a bankruptcy sale order. These are protections that any purchaser of assets from a bankruptcy estate should seek to obtain, regardless of other circumstances.

A. Bankruptcy asset sales are subject to the antitrust laws.

As noted above, Section 363(b)(2) of the Bankruptcy Code provides that, if notification of the proposed sale is required under HSR, then the notice must be made by the bankruptcy trustee or debtor in possession. This is an express Congressional recognition that asset sales under the Bankruptcy Code are subject to the antitrust laws of the United States, at least as to the reporting requirements under Section 7A of the Clayton Act, and arguably, Section 2 of the Sherman Act and Section 7 of the Clayton Act.55 Therefore, there is no bankruptcy exemption to the antitrust laws, and assets purchases that may pass muster under bankruptcy law must still clear any antitrust hurdles that might apply.

B. Sections 363(f) and (m) are not necessarily safe harbors.

The Christ Hospital decision notwithstanding, buyers should not view "free and clear" and "good faith" findings under Section 363(f) and (m) as absolute safe harbors. For example, the bankruptcy court in Christ Hospital was careful to note that its finding that "Hudson was acting as a 'good faith' purchaser, under the circumstances of this case, counters Prime's necessary tort assertion of Hudson's malicious behavior (emphasis added)." 502 B.R. at 178-179. If the facts had been different, there is no assurance that the court in Christ Hospital would have reached the same conclusion.

It is unlikely that a bankruptcy court would enjoin a challenge by the government or a competitor who had not received notice of the sale or otherwise participated in the bankruptcy proceeding. Moreover, if the competitor, unlike Prime, was not a party in interest in the bankruptcy case and did not receive notice of the Section 363 sale, the competitor may have a strong due process arguments in support of why its claims are not a collateral attack on the bankruptcy court's findings. Further, malicious behavior, or the absence of good faith, is not an element of every potential antitrust claim. For example, on a monopolization claim under Section 2 of the Sherman Act or Section 7 of the Clayton Act, a plaintiff must only prove, in addition to other elements, that the defendant acted "knowingly."56 Thus, a finding of "good faith" under Section 363(m) would not counter a monopolization claim based on the purchase of a debtor's assets.

In short, depending on the particular circumstances, including the nature of the putative plaintiff's antitrust claims and the nature and extent of its participation in the bankruptcy proceeding, a bankruptcy court's "free and clear" and "good faith" findings may or may not shield a purchase from subsequent antitrust scrutiny.

C. When in doubt, err in favor of giving notice to the FTC and DOJ.

If the proposed purchaser at a bankruptcy sale is already a participant in the market, regardless of whether the transaction must be reported under HSR, consideration should be given to voluntarily reporting the proposed transaction to the FTC and the DOJ. St. Luke's and Bazzarvoice are stark reminders that a transaction is not exempt it from antitrust scrutiny merely because it does not meet HSR reporting thresholds. Although the failure of the FTC or the DOJ to take action in response to such a notification has no precedential effect and is not binding on private plaintiffs, the giving of such a notice, coupled with the failure of the federal government to express any opposition or to take any action, may prove helpful if the transaction is later attacked by a private litigant.

D. Consider putting on an antitrust defense as part of the hearing on the sale motion.

If the purchaser is a competitor of the debtor, the purchaser should have the proposed transaction thoroughly evaluated with respect to its potential anticompetitive effect regardless of whether a bankruptcy sale transaction falls below HSR reporting thresholds. Moreover, rather than relying exclusively on "free and clear" and "good faith" findings in a sale order, if the costs and risks of unraveling a bankruptcy asset purchase are too great, consideration should be given to presenting evidence regarding the lack of any anticompetitive effect at the hearing in the bankruptcy court on the Section 363 sale motion. Doing so, however, has both practical and legal limitations.

First, in bankruptcy auctions, it is often not known who the successful bidder will be until the very end of the sale process. Even if the trustee goes to the hearing with a proposed lead bid, that bid can always be topped by a higher conforming bid. It may be unrealistic for bidders to be prepared to put on evidence of the lack of any anticompetitive effect if assets were sold to them if they do not know whether they will be the successful bidder at the outset of the Section 363 hearing.

Second, in order for the bankruptcy court's asset sale order to be binding, Christ Hospital teaches that all parties who might later attack the transaction on antitrust grounds should be put on notice of the sale, including the FTC, DOJ, and all competitors in the relevant market. However, buyers might be very wary of doing this and potentially converting a §363 hearing into a full blown antitrust trial.

Further, although bankruptcy courts have traditionally been viewed as being legally competent to resolve antitrust issues57, that tradition preceded the Supreme Court's decision in Stern v. Marshall58 in which it was held that bankruptcy courts, as Article I courts, do not have the constitutional authority to enter judgments on state law counterclaims that are not resolved in the process of ruling on a creditor's proof of claim. Thus, under Stern v. Marshall, bankruptcy courts may not have the authority to resolve antitrust issues incident to ruling on a Section 363 sale motion. Further, if a bankruptcy trustee or a proposed purchaser were to raise the issue of whether a Section 363 sale had anticompetitive effects, any party in interest could move to have the reference to the bankruptcy court withdrawn to the district court. If the district court determines that the resolution of the proceeding requires consideration of both title 11 and "other laws of the United States regulating organizations or activities affecting interstate commerce," withdrawal of the reference in mandatory.59 It would certainly seem that the antitrust laws, including Section 2 of the Sherman Act and Section 7 of the Clayton Act, are "other laws of the United States" that would require mandatory abstention. Although district courts may be fully capable of conducting asset sales under Section 363 of the Bankruptcy Code, the delay involved in resolving a motion to withdraw the reference and in scheduling a sale hearing in the district court may have a sufficient chilling effect to ward off many would-be buyers.

E. Consider the "failing company" defense.

Finally, another merit-based defense that a buyer might consider raising in a Section 363 sale hearing is the "failing company" defense. Under the defense, a dominant participant in a relevant market may purchase the assets of a competitor that is about to go out of business even if the purchase may tend to lessen competition.60 The acquired company, however, must prove that it tried and failed to merge with a company other than the acquiring one.61 Where there are several bidders for the debtor's assets, raising the "failing company" defense may be problematic and might force a bankruptcy trustee or debtor in possession to sell assets for a lower price to a bidder with less market power. Lastly, raising the "failing company" defense in the context of a Section 363 sale raises Stern v. Marshall issues, threatens withdrawal of the reference, and may be seen as throwing in the towel on the protections afforded by "free and clear" and "good faith" findings by the bankruptcy court.

V. Conclusion

Buyers of assets in bankruptcy sales should not rely exclusively on "free and clear" and "good faith" findings by a bankruptcy court in a Section 363 sale order. If the sale of assets is from one competitor to another, the transaction could lead to raise antitrust concerns, whether or not the transaction is reportable under the HSR premerger reporting thresholds. If the stakes are high enough, consideration should be given to putting on evidence that the proposed purchase lacks any anticompetitive effect at the asset sale hearing. Doing so, however, involves several practical difficulties and raises legal issues that may bog down the sale process and discourage even the most intrepid of buyers. Not doing so, on the other hand, raises the risk that the bankruptcy sale will subject the buyer to antitrust liability or, even worse, cause a forced divestiture of the purchased assets. The potential downside of divestiture to a buyer in a bankruptcy sale is exacerbated if the consideration for the purchase has already been distributed to creditors by the debtor in possession or bankruptcy trustee. If the purchase price has already been distributed to creditors, the buyer may have to divest itself of the purchased assets and then wait to see if the assets can be sold to another buyer for the same price or a higher price before receiving its purchase price back. Caveat emptor!


1. 11 U.S.C. § 363.

2. Res Judicata or claim preclusion prevents a party from suing on a claim which has been previously litigated to a final judgment by that party, and precludes the assertion by such party of any legal theory, cause of action, or defense which could have been asserted in that action.

3. Section 363(m) of the Bankruptcy Code; In re Trism, Inc., 328 F.3d 1003, 1006 (8th Cir. 2003).

4. St. Alphonsus Med. Ctr.-Nampa, Inc. v. St. Luke's Health Sys., 2015 LEXIS 2098 (9th Cir. February 10, 2015); United States v. Bazaarvoice, Inc., 2014 LEXIS 3284 (N.D. Cal. January 8, 2014).

5. 15 U.S.C. § 18a

6. 15 U.S.C. § 18

7. 15 U.S.C. § 18

8. New HSR thresholds go into effective on February 20, 2015 and apply to all transactions which close on or after this date but before the next year's adjustments. All specific adjustments for 2015 can be found at Federal Register, Vol. 80, No. 13, January 21, 2015.

9. Premerger notification rules can be found at 16 C.F.R. parts 801, 802, and 803, as well as the Federal Trade Commission website (http://www.ftc.gov/tips-advice/competition-guidance/guide-antitrust-laws/mergers/premerger-notification-and-merger).

10. 11 U.S.C. § 363(b)

11. 11 U.S.C § 363(f)

12. 11 U.S.C. § 363(m)

13. 11 U.S. C. § 363(b)(2)

14. 285 B. R. 497 (Bankr. N.D. Ala. 2002)

15. Gulf States Reorganization Group, Inc. v. Nucor Corp., 446 F.3d 961, 964 (11th Cir. 2006)

16. Id.

17. Id.

18. Id.

19. 285 B.R. at 505-506

20. Id. at 514

21. Id. at 506, 518

22. Id. at 518

23. In re Gulf States Steel, Inc., 285 B.R. 739 (Bankr. N.D. Ala. 2002)

24. 446 F. 3d. at 964

25. Id.

26. 446 F.3d at 996

27. Id. at 997

28. Gulf States Reorganization Group, Inc. v. Nucor Corp., Case No. 02-cv-0200-RDP, Docket No. 50 (October 31, 2003)

29. Id. at Docket No. 82 (December 15, 2004)

30. 466 F.3d at 965

31. Id.

32. Gulf States Reorganization Group, Inc. v. Nucor Corp., 822 F. Supp. 2d 1201 (N.D. Ala. 2011)

33. Gulf States Reorganization Group, Inc. v. Nucor Corp., 721 F. 3d. 1281 (11th Cir. 2013), cert. denied, ___U.S.___, 134 S. Ct. 1302 (2014)

34. 502 B.R. 158 (Bankr. D.N.J. 2013)

35. Id. at 165

36. Id.

37. Id.

38. Id. at 168

39. Id. at 165-166

40. Id. at 166

41. Id. at 167

42. Id.

43. Id. at 161

44. Id. at 186

45. Prime Healthcare Services, Inc. v. Hudson Hospital Propco, Inc. (In re Christ Hospital), 2014 U.S. Dist. LEXIS 128409 (D.N.J. 2014)

46. Id. at 12, citing In re Trans World Airlines, Inc., 322 F.3d 283, 290 (3d Cir. 2003) (finding that although "the interests of the EEOC and the [travel voucher holders] in the assets of TWA's bankruptcy estate are not interests in property in the sense that they are not in rem interests, . . . they are interests in property within the meaning of Section 363(f) in the sense that they arise from the property being sold");Folger Adam Sec., Inc. v. DeMatteis/MacGregor, JV, 209 F.3d 252, 258 (3d Cir. 2000) ("Although some courts have limited the term to in rem interests in the property, the trend seems to be in favor of a broader definition that encompasses other obligations that may flow from ownership of the property.")

47. Id. quoting from Folger Adam, 209 F. 3d at 259

48. Id.

49. Id. at 11

50. Id. at 13, quoting from In re Christ Hosp., 502 B.R. at 179

51. Id.

52. Id.

53. Id. at 14

54. Id.

55. See also, 43 Fed. Reg. 33,450; 33,502 (rejecting recommendations that HSR not apply to bankruptcy sales).

56. See Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985); United States v. United States Gypsum Co., 438 U.S. 422 (1978).

57. See, e.g., In re Financial News Network, Inc., 126 B.R. 157, 161 (S.D.N.Y. 1991)

58. ___U.S.___, 131 S. Ct. 2594 (2011)

59. 28 U.S.C. § 157(d)

60. See, e.g., U.S. v. General Dynamics Corp., 415 U.S. 486, 507 (1974)

61. Id.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.