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Clear Channel Muddies the Waters of ' 363(m) Mootness Protection

By Shirley S. Cho and Bennett L. Spiegel

It is one of the fundamental tenets of bankruptcy law that a sale order will not be disturbed on appeal if no stay pending appeal is obtained so long as the purchaser is a good-faith purchaser. The Ninth Circuit BAP's recent opinion in Clear Channel v. Knupfer, 391 B.R. 25 (B.A.P. 9th Cir. 2008), threatens the sanctity of the mootness rule under Bankruptcy Code ' 363(m). In Clear Channel, the BAP held that ' 363(m) applies only to protect the portion of sale orders issued under ' 363(b) or (c), but not to the “free and clear” relief under ' 363(f). In reaching its conclusion, the BAP made two primary arguments: 1) on its face, ' 363(m) only applies to sales of property under ' 363(b) or (c); and 2) ' 363(m) only protects the “validity of the sale” and not the “free-and-clear” relief under ' 363(f), which it deemed merely a term of the sale.

Was the BAP's 'Plain' Reading of ' 363(m) Correct?

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