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Further Precedent Supporting the Retention of CROs

BY James R. Irving
August 02, 2014

A recent decision by Judge Mary P. Gorman of the United States Bankruptcy Court for the Central District of Illinois in In re Copenhaver, Inc., Chapter 11 case no. 13-72052, is part of a growing trend of opinions and orders around the country allowing a debtor to retain a chief restructuring officer (CRO) under sections 105(a) and 363(b) of the Bankruptcy Code, rather than section 327(a) of the Bankruptcy Code. The Copenhaver decision clarifies that although a CRO retained pursuant to sections 105(a) and 363(b) of the Bankruptcy Code may not be required to file fee applications pursuant to sections 330 and 331 of the Bankruptcy Code, a CRO must still submit its fees to the bankruptcy court for approval.

Background

In the Copenhaver case, the Debtor filed its voluntary bankruptcy petition on Oct. 28, 2013. On Dec. 17, 2013, the bankruptcy court entered an order authorizing the sale of the Debtor's “core assets.” On Jan. 27, 2014, the Debtor filed an application to retain (the Retention Application) Dave Moravec as its CRO and consultant under sections 105(a) and 363(b) of the Bankruptcy Code. Mr. Moravec, a former employee of the Debtor, was instrumental to the Debtor's asset sale, and left the Debtor to work full-time for the company that purchased the Debtor's assets. In the Retention Application, the Debtor contended that Mr. Moravec was the only person with sufficient knowledge of the Debtor's business who could be of meaningful assistance with the liquidation of the Debtor's remaining assets.

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