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Should Bankruptcy Professionals Be Compensated for Defending Their Fee Applications?
The ability of bankruptcy estate professionals to obtain payment for defending their fee applications has been severely curtailed with the United States Supreme Court's decision of Baker Botts L.L.P. v. ASARCO LLC, 135 S. Ct. 2158 (2015), and the United States Bankruptcy Court for the District of Delaware's recent decision of In re Boomerang Tube, Inc., Case No. 15-11247, 2016 WL 385933 (Bankr. D. Del. Jan. 29, 2016). But such a limitation is inappropriate.
Bankruptcy estate professionals (attorneys and other professionals working for the debtor, and attorneys and other professionals acting on behalf of a committee) are retained subject to the United States Bankruptcy Code, 11 U.S.C. ' 101 et seq. (the Bankruptcy Code). Section 327 of the Bankruptcy Code allows a debtor or trustee to employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons. Section 1103(a) of the Bankruptcy Code in turn provides authority for a committee (of unsecured creditors, other creditors or equity holders) to retain professionals. Section 328 of the Bankruptcy Code allows for the compensation of professionals on the basis of specific, pre-approved fee agreements. And section 330 provides for the compensation of professionals who have been employed under sections 327 and 1103 through a fee-petition process and court approval based on reasonableness.
The Issue in ASARCO
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