Litigators Beware! Judge Gorsuch is a Stickler on Procedural Matters (Except When He Isn't)

This continues a series on the bankruptcy opinions of Neil Gorsuch, President Trump's nominee for the Supreme Court seat vacated by the death of Antonin Scalia.   One point which is clear is that Judge Gorsuch strongly believes that rules should be followed and is not sympathetic to arguments that procedural failures may be excused.

Did Gorsuch Expand Bankruptcy Court Referral Power?

Newly minted Supreme Court nominee Neil Gorsuch sat on the Tenth Circuit for ten years.  During that time, he signed on to eleven opinions regarding bankruptcy, which means that he wrote about bankruptcy around once a year.    None of his opinions are particularly well-known.  (In contrast, fellow finalist Thomas Hardiman authored the opinion in Official Committee of Unsecured Creditors vs. CIT Group/Business Credit, Inc. (In re Jevic Holding Corp.), 787 F.3d 173 (3rd Cir. 2015) which is currently before the Supreme Court).    However, these opinions demonstrate his crisp writing style and offer some insights into his judicial thinking.   I am going to look at one of his opinions in depth and follow up with a separate post on his remaining decisions.

Circuit Split Emerging on Dischargeability of Late Returns

There is an emerging circuit split as to whether late filed tax returns can ever be considered to be “returns.”   The issue arises because BAPCPA included a paragraph stating that a return “means a return that satisfies the requirements of applicable nonbankruptcy law (including applicable filing requirements.”    This is known as the hanging paragraph of section 523(a) because it appears following section 523(a)(19) without any other designation.

10th Circuit Affirms Denial of Employment of Attorneys Who Were Too Expensive

In these days of exponentially increasing hourly rates, a bankruptcy court told a creditors' committee that its proposed counsel was too expensive when there were local firms competent to do the work for half the cost. That decision was recently affirmed by the 10th Circuit Court of Appeals. In re Southwest Food Distributors, No. 08-5160 (10th Cir. 3/31/09).

The Debtor filed a chapter 11 petition in Tulsa, Oklahoma. The Unsecured Creditors Committee sought to employ Bell, Boyd & Lloyd, a Chicago firm, and to also employ Gable & Gotwals of Tulsa as its local counsel. Bell Boyd sought to charge rates ranging from $250 to $505 per hour. A large unsecured creditor objected on the basis that there was no need to bring in a national firm when there were local firms available at half the cost. The Bankruptcy Court agreed and approved employment of the local counsel only.

On appeal to the 10th Circuit, the Court of Appeals ruled that the Bankruptcy Court is not required to rubberstamp a party's choice of counsel even when that counsel meets the requirements of 11 U.S.C. Sec. 1103 and Fed.R.Bankr.P. 2014. The court noted that close scrutiny is required when more than one attorney is sought to be employed.

Several thoughts come to mind after reading this opinion. Many, if not most, courts require that out of district firms retain local counsel. If retaining both primary counsel and local counsel is looked upon with disfavor, this is almost a de facto rule that outside attorneys need not apply. Was the bankruptcy court engaging in protectionism here or was this simply a case which could not afford the extra attorneys? The bankruptcy court's decision to promote the committee's local counsel to lead counsel raises an interesting issue. If local counsel was chosen purely to satisfy the requirement to have a local attorney and not because they had the expertise to represent the committee, should the committee be saddled with counsel who was not their first choice? Of course, in this case, the court found that local counsel was perfectly competent and that no one had objected to their qualifications. Perhaps the committee should have selected less qualified local counsel in order to obtain their choice of lead counsel. Finally, the objection stated that qualified local attorneys could be hired at half the cost of Bell Boyd's rates of $250-$505. Does this mean that the going rate for creditors' counsel in Tulsa is $125.00-$252.50 per hour? If that is the case, the Tulsa bankruptcy bar may find itself in demand elsewhere where the going rates are much higher.