The World after Baker Botts: Compensation for Successfully Defending Fee Applications

Forthcoming 90 Am. Bankr. L.J. (2016)

38 Pages Posted: 22 Sep 2016 Last revised: 12 Oct 2016

Date Written: September 19, 2016

Abstract

This article examines the recent evolution of the case law regarding compensation for successfully defending fee applications, focusing on the Supreme Court’s decision in Baker Botts and the recent decision of the Delaware Bankruptcy Court in In re Boomerang Tube. It is argued that (1) the indemnification of defense costs is a “reasonable” term and condition of employment under § 328(a); (2) a retention agreement approved under § 328(a) of the Bankruptcy Code that specifically provides for the indemnification of defense costs is a contract exception to the American Rule; and (3) such defense costs are allowable under § 330(a) because § 328 trumps the former.

Keywords: Asarco v. Baker Botts, fee application; Boomerang

JEL Classification: K10, K22, K30, K35

Suggested Citation

Baxter, Michael, The World after Baker Botts: Compensation for Successfully Defending Fee Applications (September 19, 2016). Forthcoming 90 Am. Bankr. L.J. (2016), Available at SSRN: https://ssrn.com/abstract=2841036

Michael Baxter (Contact Author)

Covington & Burling LLP ( email )

One CityCenter
850 Tenth Street, NW
Washington, DC 20001-4956
United States

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