April 24, 2019
A recent Law.com by Rose Krebs, “US Trustee Says White Eagle Can’t Keep Fee Bids Sealed,” reports that the Office of the U.S. Trustee told the Delaware bankruptcy court that insurance policy investor White Eagle Asset Portfolio LP should not be allowed to file under seal the fees to be paid to a special litigator the company wants to retain in its Chapter 11 to handle some insurance disputes. The trustee asserts White Eagle has failed to show that information relating to compensation to proposed special counsel Reed Smith LLP is “protected as confidential commercial information” under bankruptcy code and should not be made public so that "creditors and other parties of interest" can review the fees.
“If such relief is granted, it would effectively mean that almost any objection a creditor or other party in interest may have to Reed Smith’s compensation would have to be made now, as an objection to the retention application, rather than upon review of Reed Smith’s fee applications,” the objection said. And objecting to the fees is not possible now because the fees are unknown since they were filed under seal, the trustee asserted. “Retention applications of all kinds, with all sorts of financial arrangements, are routinely filed in bankruptcy cases without any portion of them being sealed. There is no reason to make an exception in this instance,” the objection said.
Last month, in a motion that was redacted in parts, White Eagle said it wanted to hire Reed Smith as special litigation counsel as the firm represents White Eagle’s nondebtor parent Emergent Capital Inc. in some insurance disputes and “may represent the debtors to the extent they have any claims.” Compensation information was redacted in the motion, and White Eagle filed a separate motion asking the court to keep under seal terms of Reed Smith’s proposed deal claiming they include “sensitive commercial information” that is protected from having to be released per bankruptcy code.
“In light of the contentious nature of the litigation disputes the firm is handling, it is of critical importance to the debtors that the details of the fee structures set forth in the application be kept confidential so that other parties in the litigation disputes may not use the information contained therein to gain a strategic advantage over the debtors and other parties,” White Eagle asserted.
The trustee countered that White Eagle has not shown that the information should remain under seal. The trustee cited case law findings that during Chapter 11 proceedings “a debtor’s affairs are an open book and the debtor operates in a fishbowl.” In an objection filed last month, White Eagle’s lender LNV Corp. and its agent CLMG Corp. argued the proposal to hire Reed Smith as special counsel is an attempt by nondebtor parent Emergent to “transfer obligations from itself to the debtors without any commensurate benefit to the debtors’ estates.”
The case is In re: White Eagle Asset Portfolio LP, case number 1:18-bk-12808, in the U.S. Bankruptcy Court for the District of Delaware.