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

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