In re Kabbage, Inc. d/b/a KServicing — Loiseau Declaration re Jones Day Retention
- Date
- 2022-10-14
Summary
The Declaration of Holly Loiseau, General Counsel and Secretary of Kabbage, Inc. d/b/a KServicing, dated October 14, 2022, filed as Doc 108-3 (Exhibit B, Debtors' Declaration) in In re Kabbage, Inc. d/b/a KServicing, et al., Case No. 22-10951 (CTG), in the U.S. Bankruptcy Court for the District of Delaware. It supports the debtors' application to employ and retain Jones Day as special counsel effective as of the petition date under section 327(e) of the Bankruptcy Code. The declaration states that Jones Day has represented the debtors in connection with the Federal Investigations since March 2022 and that its investigation and white collar practice group has more than 160 attorneys. It states that Jones Day's rates are within the range charged by similar firms and describes budget, staffing and fee supervision. The declaration is six pages.
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Case 22-10951-CTG Doc 108-3 Filed 10/14/22 Page 1 of 6
Exhibit B
Debtors’ Declaration
Case 22-10951-CTG Doc 108-3 Filed 10/14/22 Page 2 of 6
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
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:
In re : Chapter 11
:
KABBAGE, INC. d/b/a KSERVICING, et al., : Case No. 22-10951 (CTG)
:
:
Debtors.1 : (Jointly Administered)
:
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DECLARATION OF HOLLY LOISEAU IN SUPPORT
OF DEBTORS’ APPLICATION FOR AUTHORITY TO
EMPLOY AND RETAIN JONES DAY AS SPECIAL COUNSEL
TO THE DEBTORS EFFECTIVE AS OF THE PETITION DATE
Pursuant to Section D of the Guidelines for Reviewing Applications for
Compensation and Reimbursement of Expenses Filed Under 11 U.S.C. § 330 by Attorneys in
Larger Chapter 11 Cases, effective November 1, 2013 (the “U.S. Trustee Guidelines”), I,
Holly Loiseau, hereby declare, under penalty of perjury, as follows:
13. I am older than 21 years of age and suffer no legal disability. I am
competent to make this declaration (the “Declaration”). My testimony herein is based upon my
personal knowledge, unless stated otherwise. If called to testify, I could and would competently
testify to the matters stated herein.
14. I make this Declaration under 28 U.S.C. § 1746 for all permissible purposes
under applicable rules of evidence and procedure in support of the application (the “Application”)
1
The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, as applicable are: Kabbage, Inc. d/b/a KServicing (3937); Kabbage Canada Holdings, LLC (N/A); Kabbage
Asset Securitization LLC (N/A); Kabbage Asset Funding 2017-A LLC (4803); Kabbage Asset Funding 2019-A LLC
(8973); and Kabbage Diameter, LLC (N/A). Kabbage is a trademark of American Express used under license;
Kabbage, Inc. d/b/a KServicing is not affiliated with American Express. The Debtors’ mailing and service address is
925B Peachtree Street NE, Suite 383, Atlanta, GA 30309.
Case 22-10951-CTG Doc 108-3 Filed 10/14/22 Page 3 of 6
of the above-captioned debtors and debtors in possession pursuant to section 327(e) of title 11 of
the United States Code (the “Bankruptcy Code”), Rules 2014(a) and 2016 of the Federal Rules
of Bankruptcy Procedure (the “Bankruptcy Rules”), Rules 2014-1 and 2016-1 of the Local Rules
of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of
Delaware (the “Local Rules”), and consistent with the U.S. Trustee Guidelines, requesting entry
of an order (i) authorizing the Debtors to employ and retain Jones Day as special counsel to the
Debtors effective as of the Petition Date and (ii) granting certain related relief.2
15. I am the General Counsel and Secretary of Kabbage, Inc. d/b/a KServicing
(“KServicing” or the “Company”). In my current role, I am responsible for supervising outside
counsel and monitoring and managing legal fees and expenses.
Retention of Jones Day
16. Since March 2022, Jones Day has represented the Debtors in connection
with the Federal Investigations. Over the course of the engagement, Jones Day attorneys have
worked closely with the Debtors’ management and, as a result, have acquired extensive knowledge
of the Debtors’ history, investigation needs, and related matters.
17. Jones Day is one of the largest law firms in the world, with a national and
international practice, and has substantial experience serving as defense and investigative counsel.
Its investigation and white collar practice group consists of more than 160 attorneys who handle
complex, high stakes, large-scale, and multi-jurisdictional investigation matters for clients in
various industries. Many of these lawyers have previously served in high-ranking legal and
enforcement government positions, leading prosecution teams investigating an array of
allegations, and thus regularly play a leading role in significant investigations. Accordingly, Jones
2
Capitalized terms not otherwise defined herein shall have the meanings given to them in the Application.
2
Case 22-10951-CTG Doc 108-3 Filed 10/14/22 Page 4 of 6
Day is well qualified to serve as the Debtors’ special counsel in connection with the Federal
Investigations.
Rate Structure
18. Jones Day has informed the Debtors that their hourly rates to be charged in
these Chapter 11 Cases are comparable to those charged by attorneys of similar experience and
expertise for engagements of the scope and complexity similar to the investigation matters handled
by Jones Day. Further, Jones Day professionals are subject to the same client-driven market forces,
scrutiny, and accountability as its professionals in non-bankruptcy engagements. Having
substantial experience with law firms, and having previously reviewed invoices from other
similarly-sized firms, I can verify that the rates being charged by Jones Day in connection with
this representation are within the range typically charged by similar firms in similarly complex
matters.
Cost Supervision
19. The Debtors and Jones Day expect to develop a prospective budget and
staffing plan for the services Jones Day will perform as special counsel with respect to these
Chapter 11 Cases recognizing that, during the course of these Chapter 11 Cases, it is possible that
there may be issues or disputes that create the need for additional fees and expenses charged by
Jones Day. The Debtors further recognize that it is their responsibility to monitor closely the
billing practices of their counsel to ensure the fees and expenses paid by the estates remain
consistent with the Debtors’ expectations and the exigencies of these Chapter 11 Cases.
The Debtors will continue to review the invoices that Jones Day regularly submits, and, together
with Jones Day, periodically amend the budget and staffing plans as these Chapter 11 Cases
develop.
3
Case 22-10951-CTG Doc 108-3 Filed 10/14/22 Page 5 of 6
20. As they did prepetition, the Debtors will continue to closely supervise the
fees and expenses reimbursement process. Jones Day’s fees and expenses will be subject to
review, comment, and objection (if warranted), and Court approval pursuant to interim
compensation procedures that provide for the interim allowance and payment of fees and expenses
during the course of these Chapter 11 Cases. Jones Day’s fees and expenses will be subject to
periodic review on a monthly, interim, and final basis during the course of these Chapter 11 Cases
by the U.S. Trustee, any statutory committee of creditors appointed in these Chapter 11 Cases, as
well as by the Debtors.
4
Case 22-10951-CTG Doc 108-3 Filed 10/14/22 Page 6 of 6
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing
is true and correct.
Dated: October 14, 2022
Atlanta, Georgia
KABBAGE, INC. d/b/a KSERVICING, et al.
(on behalf of itself and each of its affiliated
Debtors)
/s/ Holly Loiseau
Name: Holly Loiseau
Title: General Counsel and Secretary
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