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The Bankruptcy StrategistFeaturesBankruptcyLitigation

Advertising Section 363 Sales in the Digital Age

By Mark S. Melickian and David M. Madden
June 01, 2020

One objective of the §363 sale process is to maximize the sale proceeds payable to creditors of the bankruptcy estate. The trick is finding the buyer willing to pay the highest price. Casting a wide net to haul in the high bidder would seem to make sense in most circumstances. The best case scenario is a large pool of competitive bidders driving up the price. Yet, in many cases, little or no real effort is made to advertise the sale. Marketing is limited to sending notice to parties who already appeared in the bankruptcy case, or publication in the legal notices section of a local newspaper, where the odds of being seen by an interested bidder are low to zero.

Limiting notice may have a strategic purpose (more on this later), though more often budget and time constraints have been the limiting factor in promoting a §363 sale. Costs are increasingly less of a factor now with the expansion of internet-based options, and with on-line resources just a click away, bankruptcy professionals should always consider expanding their horizons when advertising assets for sale.

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