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| vol 15, num 2 | June, 2017 |
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| Ninth Circuit Clarifies Basis for “Fees on Fees” Award for Bringing a Frivolous Appeal |
| In Blixseth v. Yellowstone Mountain Club, LLC, Circuit Court of Appeals provided guidance on awards of attorneys’ fees. While a damages statute precludes any fee award (under the American Rule), and a punitive statute or sanction does not permit an award of fees in litigating the fee award itself, the court found that an attorney bringing a frivolous appeal (or other matter) can be liable not only for fees incurred in the proceeding itself, but for fees incurred in litigating the order to show cause why fees should not be awarded. |
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| The Supreme Court Sets the Limits of Fee-Shifting for Bad Faith Conduct in Goodyear Tire & Rubber Co. v. Haeger |
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In a recent unanimous decision delivered by Justice Kagan, the Supreme Court has made clear that federal courts, when awarding sanctions for bad faith conduct through the use of their inherent powers (not derived from rule or statute), must limit such sanctions to only compensatory damages that have a causal connection to the misconduct.
The underlying lawsuit involved a products liability action against Goodyear Tire & Rubber Co. (“Goodyear”) in which customers alleged a Goodyear G159 tire failed and caused their motor home to swerve off the road and flip over. The plaintiffs (the “Haegers”) theorized that the tire design could not withstand the level of heat generated by driving at highway speeds.
The Haegers repeatedly requested that Goodyear provide them with Goodyear’s internal test results regarding the tire. Goodyear’s responses to these requests were slow and less than forthcoming. Additional discovery battles ensued but the case eventually settled just before trial.
Months later, the plaintiff’s counsel became aware of a pertinent piece of information from an article in a newspaper on another lawsuit involving the exact same Goodyear tire. Apparently, Goodyear had supplied additional internal test results in the other matter that were not supplied to the Haegers despite the Haegers’ repeated requests.
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| Delaware Bankruptcy Court Provides Guidance on Determining the Reasonableness of Indenture Trustee’s Attorney Fees |
| In In re Nortel Networks, Inc., the Delaware Bankruptcy Court concluded that noteholder objections to the Indenture Trustee’s attorney fees must be made “on a timely, not hindsight basis.” The court’s decision serves as sound guidance to indenture trustees that, as long as any attorney’s fees charged were reasonable and prudent when incurred, they need not worry about a court reviewing their work with the clear perspective of hindsight. Nortel also offers clear advice to noteholders that if they intend to object to attorney’s fees during a complicated, lengthy bankruptcy case, then they need to
voice their objections and concerns throughout the case, and not attempt to do so relying on their skills as “Monday Morning Quarterbacks.” |
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| ABI Is Looking for Journal Associate and Coordinating Editors to Serve in 2018 |
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The ABI Journal Editorial Board is seeking qualified ABI members to serve in 2018 as coordinating editors and associate editors.
Coordinating editors are responsible for finding authors outside of their firm to cover assigned slots throughout the year. Associate editors review 1 – 3 completed articles per issue that are assigned to them prior to their publication.
For more information about the Journal’s guidelines (including column descriptions), check out the Submission Guidelines page at abi.org/abi-journal. If you are interested in one of these positions, send your resume, a brief letter of interest and, for coordinating editor applicants, a list of preferred columns to ABI Managing Editor Elizabeth A. Stoltz at estoltz@abiworld.org by June 30. |
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Annual Committee Awards Announced at ASM |
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At this year's Annual Spring Meeting, Paul Hage, immediate Co-chair of the Unsecured Trade Creditors Committee, was given the "Committee Leader of the Year" award for his continued efforts with the committee. With the help of his leadership team, Paul led the UTC to a successful year that included publishing 5 newsletters and a “Representing the Creditors' Committee: A Guide for Practitioners”, opening the first committee LinkedIn group, and hosting bi-monthly committee calls and two webinars. Paul will now join the Technology & Intellectual Property Committee as Education Director.
The Commercial Fraud Committee was recognized as "Committee of the Year" for all the work that was completed in 2016. During 2016, the Commercial Fraud Committee was able to publish a total of 8 newsletters, co-host a networking reception at the Winter Leadership Conference, host two
webinars, and hold several committee calls on a variety of topics.
In the photo above at left, Rick Rein (Education Director, Commercial Fraud) and Paul Hage (right - Co-chair, UTC) receive their leadership awards from Scott Williams (center), ABI's immediate Vice President of Membership. |
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| Ethical Issues Regarding the Use of the Media in High-Profile Cases |
The Ethics & Professional Compensation and Technology & Intellectual Property Committees recently held a session at this year's Annual Spring Meeting titled "Ethical Issues Regarding the Use of the Media in High-Profile Cases." This session focused on media in any bankruptcy case and how it can pose challenging ethical dilemmas that are only exacerbated in high-profile cases.
Speakers for this panel included:
- Elizabeth J. Austin - Pullman & Comley, LLC; Bridgeport, Conn.
- Gregg M. Galardi - Ropes & Gray LLP; New York
- Nellwyn Voorhies-Kantak - Donlin, Recano & Company, Inc.; del Mar, Calif.
- Hon. Mary F. Walrath - U.S. Bankruptcy Court, District of Delaware; Wilmington
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ABI to Name Industry's Top 40 Under 40 |
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ABI is looking for innovators, disruptors and risk-takers who are creating change in our industry. Candidates will be distinguished by professional achievements and service, and will be selected by a group of experienced professionals from ABI’s leadership. The person does not have to be an ABI member to apply or to be nominated. Submissions are due July 31.
Help us find the future leaders of our industry - nominate a rising star! |
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