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NALFA Bankruptcy Fee Examiners File Amicus Brief in Asarco Case

December 17, 2014 | Posted in : Bankruptcy Fees / Expenses, Fee Expert / Member, Fee Jurisprudence, Fees for Fees / Fees on Fees, NALFA News

Bankruptcy fee examiners that included NALFA members Nancy Rapoport and Robert Fishman filed an Amicus Brief (pdf) with the U.S. Supreme Court in Baker Botts v. Asarco.  At issue in the case is whether the Bankruptcy Code grants bankruptcy judges discretion to award compensation for defending a fee application.  The amicus brief states:

This Court’s decision here should avoid any per se rule—either generally permitting or generally prohibiting—the compensability of defense fees.  Implicitly or explicitly, moreover, the Court should note the practical dimension of the review, resolution, and approval process for professional fees in Chapter 11 proceedings.  The facts of this case are, in so many ways, exceptional.  With or without a fee committee or a fee examiner, the consensual resolution of fee disagreements is the norm.  Any per se rule would discourage that resolution.  A system without restraint on the award of defense fees could encourage meritless fee requests and license to defend them beyond reason or necessity.  A system that made defense fees virtually unobtainable could encourage meritless objections.

NALFA also reported on this case in “U.S. Supreme Court to Hear Historic Fee Enhancement Case” and “Fifth Circuit Upholds 20 Percent Fee Enhancement in Historic Case