GM has decided not to fight the §363(f) issue and will not attempt to "cleanse" its assets of tort claims when transfered to "New GM." I have previously argued that §363(f) should be read to apply to tort claims, subject to the overriding limits of due process that would temper 363(f) as applied to future claims. (Unless somebody wants to argue that Katz overcomes other Amendments too — as explained by the majority, the Bankruptcy Clause does appear more powerful than previously understood).
Nevertheless, the issue is not a simple one and would have likely bogged down the sale hearing for a few days — especially given that the litigants are better prepared than they were in Chrysler, and GM's case, which does not involve even the semblance of an outside bidder (vs. Fiat in Chrysler), is somewhat weaker. Accordingly, GM made the understandable choice to keep its case moving.