# Amicus Curiae Brief — Baker Botts, L.L.P. v. Asarco, L.L.C., 135 S. Ct. 697 (2014) (No. 14-103)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2014

## Text

Court, U.S.
FILED

DEC 10 2014

OFFICE OF THE CLERK

No. 14-103

IN THE
Supreme Court of the United States

BAKER Botts L.L.P. AND JORDAN, HYDEN, WOMBLE,
CULBRETH & HOLZER, P.C..,

Petitioners,

ASARCO LLC,
Respondent.

On Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit

AMICUS BRIEF OF NEUTRAL FEE EXAMINERS
SUPPORTING NEITHER PARTY

Counsel for Amici:

Brady C. Williamson*
bwilliam@gklaw.com
Patricia L. Wheeler
Godfrey & Kahn, S.C.
One East Main Street, Suite 500
Madison, WI 53703
608-257-3911

Counsel of Record

TABLE OF CONTENTS

Page
pr OP Ge Mt 8 RR renee a il
INTEREST OF THE AMICI CURIAE.......00..0..00.0.... 1
SUMMARY OF ARGUMENT .......000......0......0cccccceeeeeee 5
Fy RAMEN SIS IC eee ab late Ee Pa 6
A. The Law Is Unsettled on Compensation
for Defending Fee and Cost Objections. ......... 7
B. 11 U.S.C. § 330 Provides a Statutory
Basis for Awarding, After a Heightened
Review, Limited Compensation for the
Defense of a Challenged Fee
PRR BERS ANist nd SORE, SL Pe ea eee tee 11
C. Any Award of Compensation for
Defending a Challenged Fee
Application Requires a Heightened
eh Reeth LAI OCT ILLS 13
D. The Practical Approach Developed in
the American Airlines and Genera/
Motors Proceedings Provides Context
for the Court’s Decision Here........................ 18
ee |i SPU PRA ERs Dai orcersch acta 9 een Pes aR OP 30

TABLE OF AUTHORITIES

Page
CASES

CCT Communications, No. 07-10210,

2010 WL 3386947 (Bankr. S.D.N.Y.

Maa TOR I shh eck cessed vccinicconenccsavan 19, 20
Commissioner, I_N.S. v. Jean, 496 U.S.

Be I so srsertenaicdecs cous ady aieclrverapcnecie ci eecoseclsuabiszaciewaan 25
Hensley v. Eckerhart, 461 U.S. 424

RU ica ea a sepastuleceoue 24, 25
Hewitt v. Helms, 482 U.S. 755 (1987) ..........00...0000. 24

In re Ahead Commcins Sys., Ine.,
No. 02-30574, 2006 WL 2711752
(Bankr. D. Conn. Sept. 21, 2006) ........................... )

In re ASARCO LLC, 751 F.3d 291 (5th
Cir.), cert. granted, 135 S. Ct. 44

SID duhicic ssccccns tonsetrcsddaieatn osmeicennanaiacnamtahua opel 2, passim
In re Brous, 370 B.R. 563 (Bankr.

ee We OE didi tiie ansnsds hcopseespncinsedscuisaconaveeicses 8
In re Busy Beaver Bldg. Ctrs., Inc., 19

Ir I 7
In re Engel, 124 F.3d 567 (3d Cir. 1997)................. 20

In re Lehman Bros. Holdings Inc.,
No. 13-CIV-2211, 2014 WL 3408574
Oe i: I I: ae ad 19

In re Motors Liquidation Co.,
No. 09-50026, 2010 WL 285359
(Bankr. S.D.N.Y. Nov. 23, 2010).............. 19, 20, 22

il

In re Nucorp Energy, Inc., 764 F.2d 655

as isa panepamubveneuacs 10
In re Parklex Assocs. Inc., 435 B.R. 195

CRmaiew, BUDE. Y.. BVO)... .ccccccccccccccccdcccccccoccccocccncees G
In re Riverside-Linden Inv. Co., 945

F.2d 320 (9th Cir. 1991) ooo... cece cccccccceccccceeeeee eee 8,9
In re Smith, 317 F.3d 918 (9th Cir.

el a susan sawnsbsdenaneenens 7,9, 10

In re St. Rita’s Assocs. Private
Placement, L.P., 260 B.R. 650 (Bankr.

Te MD aonb vckiceceectccnncaccussscvocacsscocesceccovecvees 8,9
In re Teraforce Tech. Corp., 347 B.R.

838 (Bankr. N.D. Tex. 2006) .......00..0000.0000..00cc ce 8,9
In re Wireless Telecomms., Inc., 449

B.R. 228 (Bankr. M.D. Pa. 2011) .000000000..0....00ccceee. “
In re Worldwide Direct, Inc., 334 B.R.

Re BIE ici sccccchcocccidnsndccocnsecnvovecesncecescccceses G
Judicial Watch, Inc. v. F_B.I., 522 F.3d

364 (D.C. Cir. 2008)...................0cccccccesesccccccsessesers 26
Nadeau v. Helgemoe, 581 F.2d 275 (ist

sc psbnbaoesaeusonsunenn 24

Painewebber Income Properties Three
Ltd. P’ship v. Mobile Oil Corp., 916
F. Supp. 1239 (M.D. Fla. 1996) .........000000..0cccccccee. 24

Texas State Teachers Ass'n v. Garland
Independent School Dist., 489 U.S.

ea eral Se RASS a ans 24
West Virginia Univ. Hosp., Inc. v.
Casey, 499 U.S. 83 (1991) 2.0.0.0... cccccc cc cccecccceeeeeeeees 23

il

Zarcon, Inc. v. N.L.R.B., 578 F.3d 892

Betta Cher. BGP asenisasiscisiciassecsennoncennaduciniaieneee maaan 26
STATUTES AND OTHER AUTHORITIES

12 U.S.C. G6 SBT BBO «..0.cenccnccnsesscvosnesnstseetenenaeneee 2
11 UG... § SBT occ <cccccesseccscccovcscrmnesstecleeeenee 2
Ris Tom f eminem 6, 11, 13, 15
11 U.G.C. § SBOGa).........-0cc0sessicecncssenssesenneuaeaneainae 5
13 UB.C. © BRQGRM ID .c0vccceesioscsdasascncsensdeshenn ae 3
11 U.S.C. § SBOE) .q...<cccccssvesrcesccssntsnsennenee 11
21 U.B.C. § SOO cncecesscrssecsceescntaeee 10, 15
12 U.B.C. § SBOGRIGD ...0cceccscsicccooossssocscntenteeesaunee 7
12 U.B.C. § SRB I) ....0ccescciccssincscesniclcieneeeeeee 11
11 U.G.C. § GOBER. .....cccccccccccesicecsesesssnniceeen ae 18
22 UGC. § O66 oocccccccenseveceveccuscecsasmeuscnts een 14
Ris Com f° ) Mamet 14
12 UBA.C. © B6B....cccccisissccesssecssnoveoeeee ae 14
15 UB.C. © GOOG csccvsccisscsonceosescesncenenan ee 26
28 U.S.C. § GOR IIOAD ecseccitnsenscsecssennnepecceeaeel 2

3 Collier on Bankruptcy (Alan N.
Resnick & Henry J. Sommer eds.,

1Gtha oll. BODE) ..ccencsavesinnvoecconerenseciscalalesenaeeeee 7
5 U.B.C. § CUB CAI oc nnsincsiccacdetscssanpntaanaiaenian 26
5 U.S.C. § GER GC icckcccessnrenonctsectetastnecibiibaiane 26

Bankruptcy Abuse Prevention and
Consumer Protection Act of 2005,
Pub. L. No. 109-8, 119 Stat. 23 (2005)................. 15

iV

Bankruptcy Amendments and Federal
Judgeship Act of 1984, Pub. L.
No. 98-353, 98 Stat. 333 (1984)

II MN BE BEG, © BD cc cnccnencocccasecsceccscoscccere 15
Bankruptcy Reform Act of 1978, Pub. L.

No. 95—598, 92 Stat. 2549 (1978)... 15
Bankruptcy Reform Act of 1994, Pub. L.

No. 103-394, 108 Stat. 4106 (1994).........00000000..... 15

Nancy B. Rapoport, Rethinking
Professional Fees in Chapter 11
Cases, 5 J. Bus. & Tech. L. 263 (2010) ................ 18

Stephen J. Lubben, Corporate
Reorganization & Professiona/ Fees,

IE, Bade, FO QUID vnccsscnctvsvcescecsccversesses 18
RULES
a ocean bin cabiianeniannanieetonns 2
I I ST a arccsntaticnboasnasessauinastosceswenssicas 14

INTEREST OF THE AMICI CURIAE

The amici curiae are practicing lawyers and law
professors, without a financial stake in this appeal,
who share the practical experience of U-S.
Bankruptcy Court appointments to review the fees
and costs of professional firms seeking compensation
from the estate in large Chapter 11 proceedings. By
definition neutral, they have provided detailed
analysis of fee applications—and, on occasion,
objected to them—to assist bankruptcy courts in
fulfilling their responsibility under the USS.
Bankruptcy Code to review and approve professional!
compensation.

Specifically, the amici have analyzed professional
fee applications—line by line—on an interim and on
a final basis, making recommendations to the courts
that appointed them. Fee examiners have a
recognized role in the fee review process in some
cases, whether fees have gone unchallenged by
parties in interest or fees have been challenged, as
they are here, through four courts and over
52 months. The amici support neither side in this
appeal.!

! Pursuant to Rule 37.6 of the Rules of the Supreme Court, the
amici file this brief with the written consent of all parties. The
petitioners’ consent was given generally and noted on the
docket on October 8, 2014. The respondent’s consent came in a
December 3, 2014 communication from its counsel. No counsel
for a party wrote this brief in whole or in part. No person or
entity other than the amici or his/her counsel made a monetary
contribution for the submission of this brief; it has been
prepared pro bono.

By all accounts, this has been and remains an
“extraordinary” case—with the creditors paid in full,
no taxpayer funds expended, the legal services
provided “exceptional,” and the Chapter 11 outcome
a “once in a lifetime result.”2. Yet the amici and the
country’s 95 bankruptcy courts conduct themselves
daily in the more ordinary business environment
where creditors almost never are paid in full and the
outcomes are rarely so satisfying despite the usually
diligent efforts of the retained professionals. And
the decision here will affect the ordinary Chapter 11
proceedings, including those involving fee objections
and the defense of fees, no less than it will affect the
parties here.

The Bankruptcy Code requires bankruptcy courts
to review professional fees and expenses.* See
generally 11 U.S.C. §§ 327-330. Congress also has
mandated the involvement of U.S. Trustees in that
process. 28 U.S.C. § 586(a)(3)(A). The Bankruptcy
Code, the Federal Rules of Bankruptcy Procedure,
and guidelines issued by the bankruptcy courts and
the U.S. Trustees impose rigorous timekeeping and
reporting standards on professionals. F.g., Fed. R.
Bankr. P. 2016. Those standards help ensure the
integrity of the system and provide a basis for a

2 Baker Botts L.L.P. v. ASARCO LLC, 751 F.3d 291, 296-98
(5th Cir. 2014) (accepting the district court's “effusive
evaluation of the results obtained”).

3 Although this case involves two law firms, referred to
collectively in this brief as “Baker Botts,” the Bankruptcy Code
requires financial advisors, accounting firms and others to

submit their fees and expenses for court review and approval.
See 11 U.S.C. § 327(a).

court’s determination that the professional fees are
both reasonable and necessary under 11 U.S.C.

§ 330(a)(1).

Even with electronic data and filing now widely
in use, those detailed reporting requirements impose
a significant burden on the courts: daily narrative
time records for hundreds and, in some proceedings,
thousands of timekeepers fill thousands of pages and
hundreds of thousands of lines. On occasion, usually
by stipulation, the bankruptcy courts have utilized
fee auditors, fee examiners, and fee committees to
provide quantitative and qualitative analysis and
recommendations. The amici here have provided
those services in a series of Chapter9 and 11
proceedings, see Petitioners’ Brief at 48, and it is
from that perspective that they submit this brief.

Robert Keach is a partner in Bernstein Shur,
Portland, Maine, responsible for that firm’s
bankruptcy practice. On the appointment of the
U.S. Bankruptcy Court for the Southern District of
New York, he was the fee examiner in AMR, /n re
AMR Corp., U.S. Bankruptcy Court, Southern
District of New York, Case Nos. 11-15462 through
11-15481 (2011-2013), the Chapter 11 proceeding
initiated by and for American Airlines, in which the
professional fees requested totaled more than
$400 million. He is serving now as the fee examiner
in two Chapter1l cases pending in the USS.
Bankruptcy Court for Delaware, Exide Technologies,
Case No. 13-11482 (2013), and Jn re Mineral Park,
Inc., Case Nos. 14-11996 through 14-11999 (2014).
Mr. Keach co-chairs the Commission to Study the
Reform of Chapter 11, established by the American
Bankruptcy Institute.

Nancy Rapoport is the Gordon Silver Professor of
Law at the William S. Boyd School of Law at the
University of Nevada, Las Vegas, and serves as the
Senior Advisor to UNLV’s president. Her focus has
been bankruptcy ethics, law firm conduct, and ethics
in governance, writing extensively about these
issues. She has served as a fee examiner and
testifying expert in a_ series of Chapter 11
proceedings, including Jn re Station Casinos, Inc.,
U.S. Bankruptcy Court, District of Nevada, Case
Nos. BK-09-52477 through BK-11-51219 (2011); Jn
re Pilgrims Pride Corp., U.S. Bankruptcy Court,
Northern District of Texas, Case No. 08-45664
(2009-2010) (testified at hearing); and Jn re Mirant
Corp., U.S. Bankruptcy Court, Northern District of
Texas, Case No. 03-46590 (2003-2006; 2011-2012)
(testified). She also was a testifying expert in the
bankruptcy court in this matter, though that
testimony was limited to the fee enhancement
request, no longer at issue.

Brady C. Williamson is a partner at Godfrey &
Kahn, based in Milwaukee, and he also has taught
at the University of Wisconsin Law School. The firm
has served as counsel to the court-appointed Fee
Committee in the Lehman Brothers Chapter 11
proceeding, in which the professional fees totaled
more than $1.75billion, and in Energy Future
Holdings, Inc., Case No. 14-10979 (CSS), pending in
the U.S. Bankruptcy Court for Delaware. He was
the fee examiner in the General Motors Chapter 11.
In re Motors Liquidation Co., No. 09-50026, WL
285359 at*1 (Bankr. S.D.N.Y. 2010), (“Genera/
Motors’). He has submitted amicus briefs to this
Court in three other bankruptcy cases: Centra/
Virginia Community College v. Katz, 546 U.S. 356

4

(2006); 7il/ v. SCS Credit Corp., 541 U.S. 465 (2004);
and, Tennessee Student Assistance Corp. v. Hood,
541 U.S. 440 (2004).

Robert M. Fishman is a member of the Chicago
law firm of Shaw Fishman Glantz & Towbin LLC
and co-head of that firm’s bankruptcy practice. On
the appointment of Hon. Steven W. Rhodes, U.S.
Bankruptcy Court for the Eastern District of
Michigan, he serves as the fee examiner in the City
of Detroit Chapter 9 case, Jn re- City of Detroit,
Michigan, Case No. 13-53846, in which the
professional fees requested total approximately
$170 million. He is a former president of the
American Bankruptcy Institute and a Fellow of the
American College of Bankruptcy.

SUMMARY OF ARGUMENT

The U.S. Court of Appeals concluded, as a matter
of law, that the Bankruptcy Code, in section 330(a),
“does not authorize compensation for the costs
counsel or [other] professionals bear to defend their
fee applications.” Jn re ASARCO LLC, 751 F.3d 291,
302 (5th Cir.), cert. granted, 135 S. Ct. 44 (2014).
This statutory construction has established, at least
in the Fifth Circuit, a rule that a professional may
virtually never be compensated by the estate for
defending a challenge by anyone to any request for
compensation.

The law firms that have represented the Debtors
in this proceeding, disappointed in the Fifth Circuit’s
ultimate resolution of their fee applications, have a
different perspective. A bankruptcy court, they
argue, has a very “broad grant of discretion” to
award professional fees incurred in the defense of a
challenged fee application. Pet. Brief at 4. Neither

5

party’s perspective is wholly persuasive. Instead, a
more appropriate standard could permit the law
firms to be compensated—at least in part—for their
successful fee defense.

This Court should vacate the U.S. Court of
Appeals’ decision and remand the dispute. The
bankruptcy court should be able to approve
compensation for a professional firm defending a fee
application where the time and services involved in
that defense were not only “reasonable” and
“necessary” but where the professional substantially
prevailed in the defense of its application for
compensation. —

ARGUMENT

ASARCO objected to Baker’ Botts’ fee
applications—applications submitted largely using
the lodestar method under 11U.S.C. § 330.
ASARCO also objected to the firms’ request for
enhanced fees based on the extraordinary outcome of
the proceeding. And, finally, ASARCO objected to
the fees incurred by Baker Botts in defending the
applications against the objections. This appeal
solely involves the fee defense issue, asking if the
Bankruptcy Code “grants bankruptcy judges
discretion” to award compensation for defending a
fee application. Question Presented, p. (i), Pet.
Brief. Yet that is only part of the question.

At the outset, it is noteworthy that the resolution
of the other fee issues, either by the bankruptcy
court or consensually or both, is not atypical for a
Chapter 11 proceeding. The bankruptcy court must
approve all compensation requests, regardless of
whether a party in interest objects. See /n re Busy
Beaver Bldg. Ctrs., Inc., 19 F.3d 833, 841 (3d Cir.

6

1994). Litigated fee challenges that result in a
judicial] resolution rising through the U.S. Court of
Appeals are nevertheless uncommon—even in very
significant cases.

On remand from the district court here, the
bankruptcy court concluded that the $5 million
defense fee award was for the defense of the lodestar
fee request and not for the de*-nse of the fee
enhancement. There has been no finding that any
ASARCO objections were frivolous or made in bad
faith. Indeed, tne objections themselves are not at
issue. It is the very fact of the bankruptcy court’s
defense fee award, not its precise contours or
amount, that the certiorar7 petition placed at issue.

A. The Law Is Unsettled on Compensation for
Defending Fee and Cost Objections.

The Bankruptcy Code permits a_ retained
professional to seek compensation for preparing a fee
application but only based on “the level and skil!
reasonably required to prepare thiat]) application.”
11 U.S.C. § 330(a)(6). Standing alone, however, that
provision leaves open the question of whether time
spent responding to requests for documentation or
other information about a filed fee application, or
responding to an objection, is compensable. Whether
or not there is now a circuit split, this Court has
decided to resolve the issue. See 3 Collier on
Bankruptcy 4 330.03/16]laJ[ii] (Alan N. Resnick &
Henry J. Sommer eds., 16th ed. 2014).4

‘ The petitioners maintained that there is a “stark[)” circuit
split, Pet. at 18-19, citing (among others) Jn re Smith, 317 F.3d
918, 928 (9th Cir. 2002), and the Fifth Circuit’s decision here.

Like the Fifth Circuit panel here, courts that
have denied professionals any compensation for
defending fees have reasoned that defending a fee
application is a different activity within the meaning
of the Bankruptcy Code than preparing the
application. FE.g., In re Riverside-Linden Inv. Co.,
945 F.2d 320 (9th Cir. 1991) (fees denied; most
objections sustained); Jn re Wireless Telecomms.,
Inc., 449 B.R. 228, 237-38 (Bankr. M.D. Pa. 2011); Jn
re St. Rita’s Assocs. Private Placement, L.P., 260
B.R. 650, 652 (Bankr. W.D.N.Y. 2001). The courts
embracing this position, however, have generally
acknowledged that, under the right facts,
court-approved compensation may be appropriate
nonetheless. E.g., Riverside-Linden, 945 F.2d at 323
(fee litigation might be “necessary” and, therefore,
compensable under other circumstances); St. Aita’s,
260 B.R. at 652 (leaving open whether compensation
could be awarded where the objection was itself not
meritorious); Jn re Teraforce Tech. Corp., 347 B.R.
838, 867 (Bankr. N.D. Tex. 2006) (“‘normally” counsel
should not be compensated by the estate for fee
defense, disallowing fees for defending largely
meritorious objections filed in good faith).

The bankruptcy court in /n re Brous analyzed the
relatively few cases on the issue and denied the
compensation requested by a Chapter 7 trustee for
responding to a “good faith” fee objection. It noted
both the force of the black-letter American Rule
against fee awards to the prevailing party and the
fact that the objecting party had “substantially
prevailed.” 370 B.R. 563, 572 (Bankr. S.D.N_Y.
2007); accord, 530 West 28 St., L.P., No. 08-13266,
2009 WL 4893287, at *11 (Bankr. S.D.N.Y. Dec. 11,
2009). In Teraforce Tech. Corp., cited in Brous and

8

approvingly by the U.S. Court of Appeals here, the
bankruptcy court noted the division of authority,
cited St. Rita’s, and emphasized the American Rule.
The court concluded that the objections “were filed in
good faith and ultimately resulted in a partial
disallowance of the requested fees.” 347 B.R. at 866.
The Bankruptcy Code’s undoubted silence on the fee
defense issue led the court to conclude that “counsel
should not normally be able to recover fees for
defending a fee application....” /d. at 867.

Other courts have reached a facially different
conclusion, construing the Bankruptcy Code’s silence
differently. “[Rlequiring counsel who has
successfully defended a fee claim to bear the costs of
that defense is no different than cutting counsel's
rate or denying compensability on an earlier fee
application.” Jn re Worldwide Direct, Inc., 334 B.R.
108, 112 (D. Del. 2005) (emphasis added); see also In
re Ahead Commcins Sys., Inc., No. 02-30574, 2006
WL 2711752, at*4-5 (Bankr. D. Conn. Sept. 21,
2006). Again, however, those courts permitting
compensation for fee defense have often noted that a
per se rule is nonetheless inappropriate because it
could encourage meritless fee requests. E.g.,
Worldwide Direct, 334 B.R. at 112; see also Jn re
Parklex Assocs. Inc., 435 B.R. 195 (Bankr. S.D.N-Y.
2010) (no benefit to the estate but no perse rule
against fee defense compensation); Jn re Smith, 317
F.3d at928-29, supra n.4 _ (distinguishing
Riverside-Linden on the basis of the merits of the
objection, found “frivolous” in Smith, and granting
fees based in part on concern about fee dilution).

The Bankruptcy Code’s silence on the availability
of estate compensation for defending a _ fee

9

application led Judge Cudahy (a senior 7th Circuit
judge sitting in the 9th Circuit) in Jn re Smith to
reach a conclusion different from that reached by the
Fifth Circuit and several bankruptcy courts. Relying
on section 330(a)(3)(F), the court said that denying
compensation for defending contested fee awards
would “reduce the _ effective compensation of
bankruptcy attorneys to levels below’ the
compensation available to attorneys generally.” 317
F.3d at 928. The Court of Appeals there emphasized
as well that the objections had been found “frivolous”
and that counsel had successfully defended its fee
award. /d. at 929, citing Jn re Nucorp Energy, Inc.,
764 F.2d 655 (9th Cir. 1985).

An alternative approach is less categorical,
suggested by the focus of some cases on the merits of
an objection and shifting that focus from the scope of
the statutory “preparation” clause to the statutory
“reasonableness” standard. That standard,
heightened by analogy to fee-shifting statutes, could
be applied to disallow compensation for defending a
fee request that in some significant part failed to
acknowledge or comply with established points of
law and practice. See infra at Parts C., D.

Virtually all of the relevant decisions—regardless
of the result, regardless of the jurisdiction—share a
common trait: they shy away from a per se rule.
Those decisions finding statutory authority to award
fees for defending a challenge to compensation
recognize that fee defense is not always
compensable. Analogously, those decisions denying
any authority to award fees for defending a
challenge to compensation nonetheless recognize
that fee defense may sometimes be compensable—if

10

only under the American Rule’s exceptions and even
though the Bankruptcy Code itself is not explicit on
the issue. See ASARCO, 751 F.3d at 301. This
amicus brief advances a middle ground that avoids a
per se rule.

B. 11 U.S.C. § 330 Provides a Statutory Basis for
Awarding, After a Heightened Review,
Limited Compensation for the Defense of a
Challenged Fee Application.

The Bankruptcy Code prohibits compensation for
professional “services that were not reasonably likely
to benefit the debtor’s estate or; ... necessary to the
administration of the case.” 11 U.S.C. § 330(a)(3)(C),
(a)(4)(A)5. ASARCO argues that the fees at issue
here cannot conceivably benefit the estate because
they will benefit only the law firms receiving them.
The argument suggests a very narrow view of the
term “benefit,” limiting it to a quantifiable benefit
attributable directly to the challenged services.
However, estates and their administrators benefit
from the professionals for the estates and for those
who represent or advise committees. Their services,
provided with zeal and competence, should not be
subject to undue concern that the fees for them will
be effectively reduced by unsuccessful challenges.

ASARCO’s argument begs the question of the
acknowledged and extraordinary benefit to the
estate provided by the firms here through their
representation in the Chapter11 proceeding for

5 The Bankruptcy Code has other fee provisions not applicable
here. E.g., 11 U.S.C. § 362(k)(1) (costs and fees available for
response to willful violation of the automatic stay).

1]

more than four years. Reasonable professional
services are a necessary predicate to a Chapter 11
proceeding, extraordinarily successful or not.

Putting ASARCO’s benefit argument aside,
however, the fee defense is, as a matter of fact and
law, “necessary to the administration of the case.”
Indeed, it is inseparable from the _ case's
administration because the statutes require U.S.
Trustee review of professional fee applications and
court approval on notice and a hearing. In this
regard, the Fifth Circuit’s analysis is at odds with
itself.

“(T]he specification of an award for ‘preparation
of a fee application’ is clearly different from
authorizing fees for the defense of the application in
a court hearing.” 751 F.3d at 300. The two are
“clearly different,” to be sure, but one inexorably
follows the other. The fact that the Bankruptcy
Code does not provide “explicit statutory authority”
for awarding fees for the defense of a challenged
application does not preclude such an award. For,
just as certainly, the statute does not explicitly
prohibit the award of those fees. Rather, it prohibits
duplicative fees, unnecessary fees, or fees not
“reasonably likely to benefit” the estate. 11 U.S.C.
§ 330(a)(4)(A).

In the absence of “explicit” language, either
affirmatively or negatively resolving the question,
the issue devolves to the circumstances under which
defense fees can be awarded. ASARCO concedes
that, under the American Rule, a bankruptcy court
can award defense fees in the face of a frivolous or
vexatious challenge. The prohibition, then, is not
absolute but necessarily case-by-case. If the

12

statutory silence actually had the preemptive effect
advanced by ASARCO, even the American Rule
exceptions should be unavailable. But the silence
does not occur in a vacuum. The Bankruptcy Code
itself provides context, in section 330, that helps
eliminate the silence.

C. Any Award of Compensation for Defending a
Challenged Fee Application Requires a
Heightened Standard of Review.

ASARCO agrees that, under “a settled exception
to the American Rule,” professional fees are
compensable for a response to “frivolous or bad faith
objections.” Br. for the Resp't in Opp’n, at 2. Baker
Botts’ position lies at the other end of the
spectrum—a bankruptcy court has _ virtually
unfettered discretion to award defense fees. This
Court should accept neither position. The first
requires too much; the second too little.

The “American Rule” generally places the
financial burdens of costs and counsel on each party,
regardless of outcome. Its simplicity, history, and
rare (though recognized) exceptions commend it. Yet
that rule should not be applied by rote in Chapter 11
proceedings because of the Bankruptcy Code’s
specific requirements for professionals and the
specific mandate for judicial review for al]
professional fees. Moreover, a Chapter 11
reorganization proceeding is not inherently or
pervasively adversarial, making a civil litigation
analogue imperfect.

In fact, the American Rule is inapposite to the
issue of estate-paid fees in bankruptcy cases because
that rule reflects the presumptive division of legal
costs in an adversarial situation—each side bears its

13

own costs, subject to exceptions. In bankruptcy
cases, though, the courts exercise two very different
functions. One is adjudicative—determining specific
rights through motions, objections, and adversary
proceedings.® The other is administrative—ensuring
that the progression of the case, from its filing to its
ultimate disposition, follows the Bankruptcy Code.
In particular, authorizing and compensating
estate-paid professionals is codified in Chapter 3 of
the Bankruptcy Code, “Case Administration,” rather
than in the sections of the Code dealing with specific
parties’ rights. Unlike a traditional fee-shifting or
class action case, where the award of fees is part of
the litigation itself, all estate-paid fees in
bankruptcy cases require court review—whether or
not those fees are associated with particular
litigation and whether or not any party in interest
has objected to those fees. Associating estate-paid
fees with a “winning side,” therefore, does not
capture the nature of case administration in

bankruptcy.

Moreover, in non-bankruptcy matters, the extent
to which fees are scrutinized (if at all) is often very
different. A lawyer defending or prosecuting a
breach of contract case need not submit her fees for
court approval nor need that lawyer record the time
she has spent each day and the tasks she has
performed—indeed, to the tenth of an hour. Not so
in bankruptcy cases. “The equities” in specific fee

6 See, eg. 11 U.S.C. §§ 547 (preferences), 548 (fraudulent
transfers), 544 (trustee as successor to certain creditors and
purchasers); Bankruptcy Rules Part VII (adversary
proceedings); Fed. R. Bankr. P. 9014 (contested matters).

14

shifting statutes, the Court of Appeals concluded,
“are quite different” from those “in bankruptcy.” 751
F.3d at 300. Perhaps. But so are the demands
placed by Congress on professionals applying for
compensation and, in turn, on the U.S. Trustee
system and the bankruptcy courts.

When Congress enacted the Bankruptcy Code in
1978,’ it rejected the old “economy of administration”
standard, which had systematically
undercompensated bankruptcy professionals.
Instead, Congress specifically provided, pursuant to
11 U.S.C. § 330(a)(3)(F), that the compensation of
bankruptcy professionals should be commensurate
with the reasonable compensation available to
counsel! in non-bankruptcy cases,’ including
consideration of the actual value of their services.
This presumption of fair and comparable
compensation has continued through amendments to
section 330, but the presumption itself has left these
parties divided.®

This is Baker Botts’ argument: If bankruptcy
professionals are to be compensated fairly, based on
the reasonableness of their work and charges, then
they should be entitled to all of their reasonable fees
defending that compensation. I]]-founded attacks on

? Bankruptcy Reform Act of 1978, Pub. L. No. 95-598, 92
Stat. 2549 (1978).

* See Bankruptcy Amendments and Federal Judgeship Act of
1984, Pub. L. No. 98-353, § 433, 98 Stat. 333, 370 (1984)
(codified at 11 U.S.C. § 330); Bankruptcy Reform Act of 1994,
Pub. L. No. 103-394, 108 Stat. 4106 (1994) (same); Bankruptcy
Abuse Prevention and Consumer Protection Act of 2005, Pub.
L. No. 109-8, 119 Stat. 23 (2005) (same).

15

reasonable fees chip away at those fees by causing
the professionals to incur unnecessary defense costs.
Should those unnecessary costs go uncompensated,
then the effective recoverable fees are diminished—
that is, diluted—sometimes significantly so.

This is ASARCO’s argument: Agreeing that the
1978 Code sought to make professional fees in
bankruptcy commensurate with compensation
outside bankruptcy, the American Rule should apply
in bankruptcy. In any case, after all, every effort to
obtain professional compensation from the “other”
side entails the expenditure of time and money and,
necessarily, dilutes the ultimate award.

If this Court were to take ASARCO’s perspective
to its logical limit, however, there would be no check,
other than Bankruptcy Rule 9011, on any parties in
interest who wished to file unfair or tactical
objections to fee applications. Every objection
requires the professional whose fees are being
questioned to respond in some manner—to suggest a
proposed compromise or to file a formal response to
the objection—and every such response costs time
and, therefore, money. Aggressive parties in interest
could create disincentives for bankruptcy
professionals—in a sense, suggesting’ that
bankruptcy professionals either fulfill their fiduciary
duties without charge or pull their punches to avoid
triggering tactical fee objections.

A rule permitting “fees on fees” when the
professional substantially prevails in a_ fee
application dispute would forestall gamesmanship.
For legitimate and well-grounded objections, each
party would bear its own costs of litigating the
objection. For objections in which the bankruptcy

16

professional wins some of the arguments but loses a
number of the others, each party would bear its own
fees. Only in the situation in which most of the
objections were not well-taken would the bankruptcy
professional be entitled to fees on fees.

The law firms here argue, with a basis in lower
court decisions, see supra at PartA., that a
“successful” fee defense should always be
compensable and, by implication, that even an
unsuccessful but grounded defense might be
compensable at the court’s discretion. Part of the
difficulty with that argument lies in the definition of
“success.”

Fee challenges involve a variety of issues and
categories, either in individual, in serial, or in final
fee applications. Indeed, the challenges here
involved a range of professional services, billing
practices and issues. According to Baker Botts,
ASARCO “launched an all-out assault...attackling]
everything—time-entry descriptions, task codes in
invoices, staffing choices, and the necessity and
quality of various legal services.” Pet. Brief at 11.
That range of potential challenges is not unfamiliar
in the bankruptcy courts, and it should inform the
Court’s decision here. Fee challenges are rarely
wholesale—all or nothing—as they can be portrayed
at this stage of this litigation and in most civil
litigation. The range of fee objections and the
process for resolving them in Chapter 11 are too
nuanced and incremental for that.

17

D. The Practical Approach Developed in the
American Airlines and General Motors
Proceedings Provides Context for the Court’s
Decision Here.

To state the obvious, Chapter 11 proceedings that
involve large companies correlate—though not
invariably—with significant professional fees. The
amount of the fees requested correlates in turn with
the complexity of the case and the number of
professionals involved in it—that is, those
professionals retained by the debtor, by the creditors’
committees, and occasionally by ad hoc committees
seeking compensation under section 503(b).

ASARCO notes that 191 timekeepers, including
150 attorneys, worked on the defense of the law
firms’ compensation request. For comparative
purposes, it is a matter of public record that the
professional applications in the Lehman Brothers
proceeding reflected the work of 5,300 timekeepers
altogether and, in AMR, the work of about 2,200
timekeepers, though in each instance those totals
encompassed the entire proceeding, not just
professional compensation issues. The question
presented here does not directly involve the size or
length of the proceeding, or the amount of
compensation requested from the _ estates—
$120 million altogether—or the number and billing

®* Eg. Stephen J. Lubben, Corporate Reorganization &
Professional Fees, 82 Am. Bankr. L.J. 77 (2008); Nancy B.
Rapoport, Rethinking Professional Fees in Chapter 11 Cases, 5
J. Bus. & Tech. L. 263 (2010).

18

rates of timekeepers for the Baker’ Botts
petitioners. !°

Ideally, and most often in practice, professional
compensation issues—including disagreements over
“fees for fees”—-are resolved consensually. In the
Lehman proceedings, the bankruptcy court, with one
exception, had no need to resolve contested fee
disagreements during the four years of the
proceeding. See Jn re Lehman Bros. Holdings Inc.,
No. 13-CIV-2211, 2014 WL 3408574 (S.D.NLY.
June 26, 2014). So, too, in the AMR case. In another
noteworthy Chapter 11 proceeding, however, the
bankruptcy court did address contested
compensation for the defense of professional fees.

In General Motors, the bankruptcy court
established a practical standard that integrated the

American Rule with the unique requirements of the
Bankruptcy Code:

While the reasonable costs of [preparing]
required fee applications are compensable,
that doesn’t mean that the costs of defending
objections to those fee applications are
necessarily compensable as well—since as
Chief Judge Bernstein of this Court observed
in CCT Communications, (No. 07-10210, 2010
WL 3386947, at*8-9 (Bankr. S.D.N.Y.
Aug. 24, 2010),] there’s no parallel statutory
requirement to defend against an objection to
a fee application, or to receive compensation

10 The Debtors’ principal law firm in AMR filed applications
totaling about $80 million, and the principal law firm in
Lehman requested $442 million in compensation.

19

for the legal fees incurred in that defense.
Rather, as a general matter, fee litigants, like
other litigants, must generally bear their own
legal expenses under the “American Rule.”

But I also agree with Judge Bernstein that
professionals shouldn’t be penalized by the
cost of defending meritless objections. Failing
to allow professionals the costs of defending
meritless objections would dilute fee awards,
and encourage parties to file frivolous
objections.

Thus, where the outcome is a split decision, or
the fee applicant otherwise fails’ to
substantially prevail, I believe that the
applicant should indeed bear its own legal
expenses for addressing the objection to its
fees, under the American Rule. But as in
CCT, I believe that I should authorize
payment of the costs of defending against the
objection if the fee applicant substantially
prevails.

In re Motors Liquidation Co., No. 09-50026, 2010 WL
285359, at*l1 (Bankr. S.D.N.Y. Nov. 23, 2010)
[Docket No. 7896].

This standard modifies the American Rule to fit
the unique requirements of the Bankruptcy Code
and, indirectly, the law involving fee-shifting
statutes. Referring to a “split decision,” the
standard articulated by the bankruptcy court in
Genera/] Motors also recognized that the burden of
proof always rests with the applicant. See Jn re
Engel, 124 F.3d 567, 573 (3d Cir. 1997).

20

The fee examination process in AMF and £xide
followed a similar approach. The fee examiner, an
amicus here, collected the relevant cases and
developed a protocol that recognized the generally
consensual nuture of the review process, through
negotiation, when that process involves a_ fee
examiner or a fee review committee.

The Fee Examiner will generally recommend
that time be treated as compensable when

spent (a) preparing an initial response to the
Preliminary Report...[that is, the
preliminarily analysis of the fee application by
the fee examiner]; (b) in an initial meeting or
teleconference with the Fee Examiner as to a
Preliminary Report: and/or (c) considering a
single revised resolution proposal or response
by the Fee Examiner....Continued
negotiations after that time will likely be
treated as solely for the benefit of the
Retained Professional and as not
compensable. The Fee Examiner, however,
reserves the right to challenge any time
spent...if the Fee Application is materially
deficient and such deficiencies precipitated
any inquiries or objections...or where the Fee
Examiner determines that all or part of any
such response is not in good faith and/or not
supported by a reasonable interpretation of
prevailing law or guidelines.

In re Exide Technologies, supra at 3 (emphasis in
original), Fee Examiner’s Consolidated Final Report
Pertaining to the Interim Fee Applications of
Certain Retained Professionals for the Period from
June 10, 2013 through August 31, 2013 and the

21

Period from September 1, 2013 through
November 30, 2013 at 53 [Docket No. 1921]; accord,
In re AMR Corp., supra at 3 [Docket No. 8270].

The AMR and Exide fee examiner recognized
every professional’s right to seek even contested fees
and expenses—not only as a matter of due process
but because the bankruptcy court has the final and
statutory responsibility to review and approve all
compensation requests. That recognition came with
the caveat reflected in that case and in this brief:
the defense of “any actual objections preserved in a
Final Report of the Fee Examiner will be treated as
not compensable unless the Retained Professional
substantially prevails in such defense, as determined
by the Court.” Jd.

In both AMR and General Motors, the court
applied the “substantially prevailed” standard in the
context of interim compensation applications,
usually filed every four months and involving, at
times, a series of discrete disagreements over fees for
time spent on discrete projects. The time spent (and
the associated fees) on a summary judgment motion,
for example, might be challenged on the ground that
the motion was improvident in light of
obviously-contested material facts. In response, the
court might find that some of the time spent was
warranted but not time spent beyond the initial
research and evaluation. Some of the professional
fees, in that event, might be compensable as both
necessary and reasonable, but the fees charged for
seeking compensation would not because _ the
professional would not have “substantially
prevailed” on the fee defense issue.

22

The standard advanced here does not depend on
a quantitative determination—though that is a
factor. If 100 hours were expended on the project, a
determination that 51 of those hours were necessary
and reasonable would not yield an award of all of the
fees for the entire project, nor would it yield an
award of even 51 percent of the time spent defending
the fee application. Similarly, in an application for
interim compensation, if the fees for five discrete
projects were subject to challenge and_ the
professional prevailed on three of them, that too
would not necessarily satisfy the “substantially
prevailed” standard for an award of defense fees.

A departure from the American Rule for
“substantially prevailing” or “prevailing” parties has
obvious precedent. Fee shifting is most prominent in
actions to enforce federal civil rights laws, including
the Civil Rights Act of 1964 and the Individuals with
Disabilities Education Act. Congress has extended
fee shifting provisions through “[a]t least 34 statutes
in 10 different titles of the U. S. Code....”. West
Virginia Univ. Hosp., Inc. v. Casey, 499 U.S. 83,
88-89 (1991) (superseded by statute on other
grounds). “These statutes encompass diverse
categories of legislation, including tax,
administrative procedure, environmental protection,
consumer protection, admiralty and navigation,
utilities regulation, and, significantly, civil rights....”
Id.

Although the rationale underlying fee shifting—
providing an impetus for private litigants to enforce
Congressional policies—is distinct from that
proposed here, both the concept of allowing courts to
shift fees and the definition of “success” are familiar.

23

For example, a prevailing party for purposes of
fee-shifting under section 1988 is one that has
“succeed[ed] on any significant issue in litigation
which achieves some of the benefit the parties
sought in bringing suit.” Hensley v. Eckerhart, 461
U.S. 424, 433 (1983) (citing Nadeau v. Helgemoe,
581 F.2d 275, 278-79 (1st Cir. 1978)). “Accordingly,
the outer boundary of the term ‘prevailing or
substantially prevailing party’ is that a party must
receive at least some relief on the merits of its claim
before being considered a prevailing or substantially
prevailing party.” Painewebber Income Properties
Three Ltd. P’ship v. Mobile Oil Corp., 916 F. Supp.
1239, 1242 (M.D. Fla. 1996) (citing Hewitt v. Helms,
482 U.S. 755, 759-60 (1987)).

In Texas State Teachers Ass'n v. Garland
Independent School Dist., this Court explained that
“Congress clearly contemplated that interim fee
awards would be available ‘where a party has
prevailed on an important matter in the course of
litigation, even when he ultimately does not prevail
on all issues.” 489 U.S. 782, 790 (citing S. Rep.,
No. 94-1011, at 5 (1976)). The “door” through which
a “plaintiff has crossed the threshold to a fee award
of some kind” is that “a plaintiff receive at least
some relief on the merits of his claim before he can
be said to prevail.” Jd. at 791-92 (citing Hewitt, 482
U.S. at 760).

However, while success on a significant issue
“brings the plaintiff {) across the statutory threshold
... it remains for the district court to determine what
fee is ‘reasonable.” Hensley, 461 U.S. at 433. In
addition to an analysis of whether the fees requested
were “reasonably expended” and at a “reasonable

24

rate,” the Court emphasized that the “results
obtained” are critical to the analysis. Jd. at 434.

This factor is particularly crucial where a
plaintiff is deemed “prevailing” even though
he succeeded on only some of his claims for
relief.... In these circumstances the fee award
should not be reduced simply because the
plaintiff failed to prevail on every contention
raised in the lawsuit....

If, on the other hand, a plaintiff has
achieved only partial or limited success, the
product of hours reasonably expended on the
litigation as a whole times a reasonable hourly
rate may be an excessive amount....

Id. at 435-36.

Petitioners cite Commissioner, I.N.S. v. Jean, 496
U.S. 154 (1990), in support of their position that the
bankruptcy court has broad discretion to award
defense fees. The holding in Jean is not inconsistent
with the standard proposed here. There, this Court
held that once a litigant had met the threshold for
eligibility as a prevailing party under the Equal
Access to Justice Act, after a finding that the
government’s position was not “substantially
justified,” the district court then properly applied a
reasonableness determination without yet another
“substantially justified” test for the fee issue. /d.
at 160-163. The standard suggested here is that the
professional defending a fee application must
“substantially prevail” in the defense of its
application to meet the eligibility threshold for
compensation for that defense. Once met, the
bankruptcy court would then determine a fee award,

25

applying the reasonable and necessary standards in
the Bankruptcy Code.

Of course, unlike the Equa! Access to Justice Act
or the Civil Rights Act or other statutes, the
Bankruptcy Code contains no express fee-shifting
provision.'! In the absence of any such provision,
the standard for achieving the “threshold”—to be
even eligible to recover defense fees—is necessarily
more stringent, consistent with both the bankruptcy
court’s statutory obligations and its discretion.
Rather than merely prevailing on “any significant
issue in litigation,” the standard advanced here
would require that a professional “substantially
prevail” on the compensation issues in order to be
eligible to be paid by the estate for that fee defense.
Only with success on a significant range of issues
would a court then turn to the second step of the
analysis: whether the fees requested are reasonable.

Here, without examining the professionals’ time
records, it is not possible to apply a heightened

11 Federal antitrust law, 15 U.S.C. § 4304, provides that courts
shall award fees to a “substantially prevailing claimant” in a
claim based on the conduct of a joint venture. So, too, the
Freedom of Information Act provides that a district court “may
assess against the United States reasonable attorney fees and
other litigation costs reasonably incurred in any [FOIA] case ...
in which the complainant has substantially prevailed.”
5 U.S.C. § 552(a)(4)(E)G). “For purposes of [FOIA], a
complainant has substantially prevailed if the complainant has
obtained relief through ... a voluntary or unilateral change in
position by the agency, if the complainant's claim is not
insubstantial.” 5 U.S.C. § 552(a)(4)(E)Gii); see Zarcon, Inc. v.
N.L.R.B., 578 F.3d 892, 894 (8th Cir. 2009); Judicial Watch,
Inc. v. F_B.I., 522 F.3d 364, 370 (D.C. Cir. 2008).

26

standard. Yet the bankruptcy court, on remand, did
reduce the amount awarded for defending the fee
objection to the core fees (not the enhancement) to
$5 million. On a_ subsequent remand, the
bankruptcy court will have the opportunity to
reconsider its evaluation, looking at discrete
objections to discrete blocks of time, under the new
standard—f it has not already done so.

There is wide room for bankruptcy court
discretion, as there is for every evaluation of
professional fees, but it cannot be the unfettered
discretion advocated by the law firms here.
Consistent with the standards in_ statutory
fee-shifting cases, integrating the demands of the
Bankruptcy Code and the American Rule, the
bankruptcy courts should be permitted to award fees
for the defense of fee applications for those
professionals that substantially prevail on that
defense.

A flexible rule also encourages professionals to
provide information to the bankruptcy court, to the
U.S. Trustee, and to interested parties and to work
toward a consensual resolution of fee issues, secure
in the knowledge that such compensation will not be
automatically diluted (by automatically denying
compensation). Denying al/ defense compensation
necessarily does result in a dilution of an otherwise
allowed award of reasonable and necessary fees.
And the virtually automatic denial of defense fees
contravenes a precept of the Bankruptcy Code: that
bankruptcy professionals be compensated at the
same level and on the same terms. as
non-bankruptcy professionals. Sometimes, defense

27

fees, in whole or in part, are warranted; sometimes
not.

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
perse rule would discourage that resolution. A
system without restraint on the award of defense
fees could encourage meritless fee requests and a
license to defend them beyond reason or necessity. A
system that made defense (fees virtually
unobtainable could encourage meritless objections.

Baker Botts concludes its brief by stating that the
Court “need not further define the circumstances
when defense fees may or may not be awarded.” Pet.
Brief at 57. As much as the amici may agree with
other dimensions of the petitioners’ argument, they
disagree with this suggestion. Like Baker Botts, the
amici contend that the bankruptcy courts do have
the authority to award professional compensation for
defending fee applications, but the amici contend as
well that the bankruptcy courts’ discretion requires
some boundary. The “substantially prevailed”
standard provides that boundary.

The “broad grant” of discretion to the bankruptcy
court sought here—to award compensation for
defending fee applications—is not inherently limited
to the successful defense of all or even a significant

28

part of a fee application. To be sure, Baker Botts
argues that the “ldjiscretion to compensate
successful fee-application defenses properly aligns
the incentives of both fee applicants and potential
objectors.” Pet. Brief at 51 (emphasis added). In the
context of fee applications generally and the fee
review process in bankruptcy in particular, however,
“success” and “successful” are relative and often
serial or piecemeal concepts.

Here, Baker Botts may well have prevailed on
every itemized challenge brought by ASARCO, and
that would make a determination on remand under
a new standard both brief and relatively painless. It
then would be readily apparent that Baker Botts
“substantially prevailed.” However, for those myriad
bankruptcy proceedings yet to be filed and for the fee
applications yet to be reviewed, a decision by this
Court only affirming—or, for that matter, only
reversing—the Court of Appeals’ decision without a
remand and an articulated standard will provide
insufficient guidance.

29

CONCLUSION

For the reasons stated above, the Court should
vacate the opinion of the U.S. Court of Appeals for
the Fifth Circuit, recognizing the compensability of
defense fees under limited circumstances and
remanding the fee dispute for reconsideration and
resolution consistent with this Court’s opinion.

Respectfully submitted,
Counsel for Amici:

Brady C. Williamson*
bwilham@gklaw.com
Patricia L. Wheeler
Godfrey & Kahn, S.C.

One East Main Street, Suite 500
Madison, WI 53703
608-257-3911

Dated: December 10, 2014
*Counsel of Record

30

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0337%3A18. Public record. Not legal advice.