American Bankruptcy Institute
54 IV. Proposed Recommendations: Commencing the Case
The Commission considered whether these professionals’ fees and expenses should be subject to a fee application process, but ultimately determined that for these professionals, on balance, the standard of review was more important than the form of disclosures. The Commission also agreed that, to the extent the court disallows any professionals’ fees and expenses under this standard, the creditor or ad hoc committee should not be permitted to seek reimbursement for disallowed fees from other stakeholders in the case. The Commission found that any such reimbursement mechanism would undermine the utility of the reasonableness review in that it could indirectly effect the obligations of the estate to other creditors. In light of the foregoing, the Commission voted to require the review of any professional compensation requested by professionals retained to represent secured creditors, creditors who are parties to agreements or settlements approved by the court, and ad hoc committees under the reasonableness standard of section 330(a) of the Bankruptcy Code. The Commission also agreed that this principle should not otherwise affect the permissibility or authorization of such professionals’ fees and expenses under the Bankruptcy Code and current law.
Trustee and Estate Neutral Issues
The Commission considered the justifications for limiting the trustee’s professional services to the estate to those provided by lawyers and accountants. Some Commissioners suggested that these particular professional services were identified in section 327(d) because they were the primary services provided to bankruptcy estates at the time section 327 was adopted. Since that time, individuals serving as trustees may have different expertise and professional capacities. This change, in part, reflects the evolution of bankruptcy cases and the bankruptcy profession. Although lawyers and accountants continue to play important roles in chapter 11 cases, management consultants, financial advisors, and other professional service providers also are actively involved in bankruptcy cases and can add value to the process.
The Commissioners discussed the potential benefits and cost savings to the estate by permitting a trustee (or its firm) to act as, for example, a management consultant to the estate in connection with operating the debtor’s business and administering the case. Although the Commissioners appreciated the need to ensure thersat professionals representing the estate are disinterested and do not hold adverse interests to the estate, they did not perceive significant issues when appointed trustees seek to perform certain specified professional services for the estate. Moreover, many Commissioners believed that estate neutrals, whom the U.S. Trustee also would determine to be disinterested and qualified, should be able to seek the same authority to represent the estate in their professional capacities. Accordingly, the Commission recommended expanding section 327(d) to include trustees and estate neutrals and to add “professional service provider” to the list of authorized roles for the trustee or estate neutrals.
The Commissioners also discussed the compensation structure of section 326(a) and whether it provided proper incentives to trustees to maximize the value of the estate. As explained above, section 326(a) compensates trustees based on a percentage of the amount of moneys distributed or turned over to parties in interest in the case other than the debtor. Some Commissioners suggested modifying section 326(a) to exclude only distributions to “chapter 7 debtors and individual chapter 11 debtors” from the compensation calculation, recognizing the different focus of case administration in chapter 11 cases involving business debtors. These Commissioners noted that the