g; and the principals of each participating Qualified Bidder shall be fully disclosed to all other participating Qualified Bidders throughout the entire Auction. All bidders at the Auction shall be deemed to have consented to the core jurisdiction of the Court and waived any right to jury trial in connection with any disputes relating to the Auction, the Sale of the Real Property and the construction and enforcement of the Prevailing Bid or the Next Highest Bid. c. Highest and/or Best Bid. At all times during the Proposed Sale Process, the Debtors retain the right to determine which bid constitutes the highest or otherwise best offer for the purchase of the Real Property, and which bid should be selected as the Prevailing Bid and the Next Highest Bid, if any, all subject to final approval by the Court pursuant to the provisions of Case 1-19-10014-CLB, Doc 44, Filed 04/02/20, Entered 04/09/20 14:40:58, Description: Main Document , Page 33 of 46 Schedule 1 Section 363(b) of the Bankruptcy Code. When evaluating the bids, the Debtors shall consider the financial and contractual terms of each bid and factors affecting the speed and certainty of closing each bid.

Other courts have echoed these holdings regarding covenants. See In re 523 East Fifth Street Housing Preservation Development Fund Corp., 79 B.R. 568, 576 (Bankr. S.D.N.Y. 1987) (refusing to approve sale under 11 U.S.C. § 363 free and clear of restrictive covenant limiting use of property for low- income housing); In re WBQ Partnership, 189 B.R. 97, 106 (Bankr. E.D.Va. 1995) (in dicta, a Section 363 sale cannot eliminate a covenant running with the land). 2.

th Here, the United States is challenging discreet and specific terms of the sale and not just the sale itself. Specifically, the United States challenges whether (1) it was entitled to adequate protection under 11 U.S.C. § 363(e) and, if so, did Whitney provide such protection, and (2) section 363(f) permitted the sale of Whitney’s assets free and clear of the United States’ claims and interests. Docket No. 1, Attach.

Under Bankruptcy Rule 9019, a settlement agreement with a Trustee is not enforceable until approved by the Bankruptcy Court. See In re Blehm Land & Cattle Co., 859 F.2d 137, 141 (10th Cir. 1988) (“[u]nder Bankruptcy Rule 9019, a settlement or compromise agreement between the trustee and a party must be approved by the court, after notice and hearing, to be enforceable”); Ritchie Capital Mgmt., L.L.C. v. Kelley, 785 F.3d 273, 279 (8th Cir. 2015); Reynolds v. Comm’r, 861 F.2d 469, 473 (6th Cir. 1988) (“[i]n bankruptcy proceedings, as distinguished from ordinary civil cases, any compromise between the debtor and his creditors must be approved by the court as fair and equitable”); In re Leslie Fay Cos., 168 B.R. 294, 305 (Bankr. S.D.N.Y. 1994) (“[c]ompromises may not be made in bankruptcy absent notice and a hearing and a court order”). Similarly, under 11 U.S.C. § 363(b)(1), a trustee may sell property of the estate outside of the ordinary course of business only with bankruptcy court approval, “after notice and a hearing.” As a result, a majority of courts hold that there is no contract prior to bankruptcy court approval.

Cf. Dinielli v. Tropicana Hotel & Casino, 2014 WL 87671 *3 (N.J. Super. App. Div. Jan. 10, 2014). The Dinielli court, which was cited by Defendant to support its argument, (see Def. Brief, p. 19), held that § 363 relieved the defendant of liability where “there is no actual or de facto consolidation or merger of the companies; defendant is not a mere continuation of [the predecessor company]; and the purchase was not undertaken fraudulently to avoid liability.” Id. Looking at the facts in a light most favorable to Plaintiff, in this matter there is evidence of an “actual or de facto” consolidation or merger of Saint Michael’s and Prime-St. Michael’s.

Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 24 of 36 PageID: 823 20 Finally, the bankruptcy code does not supplant the FMLA’s successor-in-interest analysis because they are not incompatible insofar as the test for successor status occurs at different times under the bankruptcy code versus the FMLA. 11 U.S.C. § 363(f) states that, subject to the above conditions, at the time of sale the bankruptcy court can order that the assets will transfer to the purchaser free and clear of the interests and claims that derive from those assets. The FMLA’s successor-in-interest framework provides that an entity’s actions subsequent to the sale—i.e., the continuity of employment conditions and operations—can create successor-in-interest liability that the time the subject employee worked for the predecessor-in-interest must be calculating in determining whether the employee in question was eligible for FMLA leave and job restoration.

lier’s treatise gives the following guidelines to determine whether a transaction is in the ordinary course of business, including 1) whether the transaction is similar to transactions in which comparable businesses engage in their day-to-day operations; 2) whether the transaction is similar to transactions in which the debtor engaged on a day-to-day basis prior to filing; or 3) whether the transaction will have a substantial impact on the Chapter 11 case or the debtor’s business, including examination of the nature of the transaction and its size.146 In light of these guidelines, Conway could not have paid the excise taxes for the third and fourth quarters of 2001 when they became due on January 15, 2002 in the “ordinary course of business” under 11 U.S.C. § 363(c)(1). Given the events of 9/11, the deferral set forth in the Stabilization Act, and the size of an $8 million lump-sum payment, there was nothing “ordinary” 142 11 U.S.C. § 363(c)(1-2). 143 In re Unitcast, Inc., 214 B.R. at 1018.

The former employee argued that “the successor liability provisions of 29 U.S.C. 2601 et seq. (FMLA) and 29 C.F.R. § 825.107 overcome or trump the ‘sale free and clear’ provisions of 11 U.S.C. § 363(f) and allow [plaintiff] to sue Hudson.” Id.

The Court determined that the sale would be in the best interest of the Estate. -11- Chau 000018 Case 2:16-cv-14400-SM-JVM Document 20-8 Filed 04/07/17 Page 18 of 61 Debtor filed a Motion for Authority to Sell Real Property, known as 77173 Old Military Road, Covington, Louisiana and 226 Robert Road/Front Street, Slidell, Louisiana to Adam Troung, Pursuant to 11 U.S.C. §363(b) and a Hearing was held on May 20, 2014. The Sale of the above referenced properties has not been effected due to the liens on the Military Road Property and Robert Road Property which have not been extinguished.

(Doc. No. 1–11, at 18.) In the cause-of-action section of the civil cover sheet, Plaintiffs cite § 363 of the Bankruptcy Code, 11 U.S.C. § 363, as the basis for bringing suit and, by way of further Case 1:16-cv-02546-J J Document 20-1 Filed 03/30/17 Page 5 of 14 Hanoverian, Inc. v. Pennsylvania Dept. of Environmental..., Not Reported in... © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 explanation, state that the “PA DEP has violated U.S. Bankruptcy law by asserting claims against sold [sic] under Order of the Bankruptcy Court (WD Missouri) that were not asserted by claim or adversary proceeding in the Bankruptcy Court.”