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Edward Tillinghast is a partner and Practice Group Leader of the firm's Finance and Bankruptcy Practice Group

In the aftermath of the 9/11 attacks, the Appraisal Institute issued guidance to its MAI appraisers regarding the new challenges and limitations on rendering an opinion of real estate value in the wake of a disaster when markets are unstable or chaotic[1].  The Appraisal Institute identified the specific issues and assumptions that affect the appraiser’s ability to employ accepted standards and practices of valuation, going so far as to advise its MAI members that they should not accept assignments that require “competency beyond that of a real estate appraiser,” id., essentially saying that there can be so much uncertainty that MAI appraisers could not render an opinion compliant with accepted standards.  Given that Bankruptcy Courts require credible and admissible evidence of value at several stages of the Chapter 11 process, the absence of persuasive and credible evidence of value means that the party with the burden of proof on the specific valuation issue will fail to carry its burden and should be denied whatever relief  or outcome that  is being sought, perhaps affecting the outcome of the entire Chapter 11 case.  This article summarizes the challenges faced by bankruptcy judges and practitioners in this post-COVID-19 climate of uncertain real estate values.
Continue Reading Post-COVID-19 Appraisals And The Burden Of Proof In Bankruptcy Cases

The COVID-19 pandemic has caused unprecedented economic disruptions worldwide.  Businesses that were previously flourishing are now seeing rapid declines in demand and revenue, disruptions in their supply chains, and other operational interferences.  Previously projected business plans for development and expansion may no longer be feasible.  Boards of directors facing these challenges would be well served to review their legal obligations and fiduciary duties as they help guide their companies through these challenges.
Continue Reading Precautionary and Prudency Measures for Boards Addressing COVID-19 Business Uncertainties

With the World Health Organization declaring COVID-19 a pandemic on Wednesday, March 11, 2020, businesses are likely to continue to feel its effects.  When businesses are unable to perform their contractual obligations as a result of COVID-19, force majeure clauses may become important.
Continue Reading Force Majeure Clauses and COVID-19 – Can Force Majeure Clauses Excuse Performance Under New York or Delaware Law in a Pandemic?