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  1. ASARCO-NO: Estate Professionals Cannot Be Paid Fees-on-Fees by Contract or Alternate Statute

    February 1, 2016

    We previously posted about a recent effort to address an issue left unresolved in Baker Botts v. ASARCO, 135 S. Ct. 2158 (2015): can an estate professional by statute or contract be entitled to payment of fees incurred in defending against fee application objections (so-called “fees-on-fees”)? It is certainly the case both that (i) the Supremes held in ASARCO that the American Rule (each side pays its own fees) does not permit on fees-on-fees unless a statute is explicit on this point and (ii) the Court acknowledged that the American Rule can be contracted around. So the question in Chapter 11 is, can an estate professional by contract or by reference to a different Code provision be paid its fees-on-fees? As promised, we have an update from Delaware.  more…

  2. Fee Premium Fracas Tabled For Now …

    January 19, 2016

    Following up on our previous post, “New Gulf to Engulf ASARCO? Baker Botts seeks to hack the Supreme Court’s ASARCO ruling ”, it seems that Baker Botts and the U.S. Trustee have agreed to defer consideration of Baker Botts’ “Fee Premium”  to a later, unspecified date.  Pursuant to a revised proposed order from Baker Botts, the court has approved Baker Botts as debtors’ counsel and ordered that “consideration, authorization and approval of the provisions authorizing the Fee Premium, if any, are subject in all respects to further order of the Court after notice and hearing…”, all rights reserved, yada yada.  From the bench, the Court noted that the issue of fees for fighting about fees under ASARCO is currently being considered by other courts in the district, and since the issue could arise in practically every chapter 11 case, the Court intends to rule consistently across all cases.  We will let you know when the fracas comes to fruition.

  3. New Gulf to Engulf ASARCO? Baker Botts Seeks to Hack the Supreme Court’s ASARCO Ruling

    January 15, 2016

    Baker Botts L.L.P. has filed its application for retention as debtors’ counsel in In re New Gulf Resources, LLC, et al. (Case No. 15-12556, Bankr. D. Del.), and the application incudes a novel “Fee Premium.” Essentially, Baker Botts’ aggregate fees incurred in the case will be increased by 10% (subject to court approval) but … Baker Botts will waive the entire Fee Premium “if, and only if, Baker Botts does not incur material fees and expenses defending against any objection with respect to an interim or final fee application.”

  4. View All Points »


Just Sue Me

Litigation fest
Can’t we all just get along?
Lawyers churning fees

Rigs in Repose

Waves gently lapping
Steel giants peacefully sway
No drilling today

Allowed Make-Whole Claims

As rare as hen’s teeth
Language must be crystal clear
Seems it never is


The stockings are stuffed
Too much coal, too much distress
Chapter 11

Out of Energy?

Oil can’t go lower?
Global warming isn’t real?
Ostriches raise heads

Climate Change

Tornado warning
My lights flicker, my dogs howl
But this is … Hartford?

Red Sox Nation

Falling further back
Deflated like Tom Brady
They could use A-Rod

E&P Companies

They drill baby drill
Black gold no longer golden
Jed Clampett goes home

Just Shoot Me

Colt dome in Hartford
Gold leafing peeling away
No more peacemakers?

Icarus Flies Again

If you fail and fail and fail
Is fourth time the charm?

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Evan D. Flaschen

As Blogger-in-Chief Evan Flaschen approaches his office in his signature Tommy Bahama shirt, shorts and sandals, the classic Ozzy Osbourne song “Crazy Train” is cranked to 11. With a 7-foot giraffe statue peering over one shoulder, a life-size Abe Lincoln cut-out over the other and Bloomberg news on his wall TV, Evan sits in front of his four computer screens, two speakerphones and wireless headset and takes on the restructuring world with a passion and a smile. (more…)

Feldsher, jennifer--web_bw

Jennifer Feldsher

Jen Feldsher was born to practice law. Growing up in the former Soviet Union – a country without the rule of law – ignited a deep-rooted affinity for its principles. She seemingly began her career at the age of five, drafting her first contract on a post-it note after her father asked to borrow $10. (more…)

Martin, Dee BW Web_72dpi

Dee Martin

Many people talk about wanting to make a difference, but Dee Martin has been doing it all her life. In fact, whether she’s spending time at the Ngamba Island Chimpanzee sanctuary in Uganda or flying home after attending the Fortune Magazine Most Powerful Women Summit as an invited guest, Dee Martin is always wearing her advocacy hat.  (more…)

Nye, Greg BW Web_72dpi

Gregory W. Nye

When asked what it is, precisely, he does for a living, Greg Nye responds: “I make the most complex financial structures easy to understand.” Outside the courtroom, Greg likes to pump iron (with minimal observable results). (more…)

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