Vyaire - McDermott Retention Application (Redacted Version)
- Date
- 2024-07-23
Summary
An application by the Official Committee of Unsecured Creditors of Vyaire Medical, Inc., et al. to retain and employ McDermott Will & Emery LLP as its counsel effective June 28, 2024, filed July 9, 2024 as Doc 230 in Case No. 24-11217 (BLS) in the U.S. Bankruptcy Court for the District of Delaware. It cites sections 328(a) and 1103(a) of the Bankruptcy Code and lists the services McDermott would provide, from advising the Committee to investigating claims belonging to the estates. The application sets out 2024 standard hourly rates of $1,325 - $2,150 for partners and names the attorneys and paralegal expected to work on the matter, with a 15% discount on monthly invoices. It sets an objection deadline of 7/23/24 and a hearing on 7/31/24, and attaches a proposed order as Exhibit A and a partner's declaration as Exhibit B.
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Case 24-11217-BLS Doc 230 Filed 07/09/24 Page 1 of 8
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
) Chapter 11
In re: )
) Case No. 24-11217 (BLS)
VYAIRE MEDICAL, INC., et al.,1 )
) (Jointly Administered)
Debtors. )
) Obj. Deadline: 7/23/24 at 4:00 p.m. (ET)
Hrg. Date: 7/31/24 at 2:00 p.m. (ET)
)
) Related to Docket Nos. 215, 217
APPLICATION OF THE OFFICIAL COMMITTEE OF
UNSECURED CREDITORS OF VYAIRE MEDICAL, INC., ET AL.,
TO RETAIN AND EMPLOY MCDERMOTT WILL & EMERY LLP
AS COUNSEL, EFFECTIVE JUNE 28, 2024
The Official Committee of Unsecured Creditors (the “Committee”) in the above-
captioned chapter 11 cases (the “Chapter 11 Cases”) of Vyaire Medical, Inc. and its affiliated
debtors and debtors in possession (collectively, the “Debtors”) hereby applies (the
“Application”) for the entry of an order, substantially in the form attached hereto as Exhibit A
(the “Proposed Order”), approving the Committee’s retention and employment of McDermott
Will & Emery LLP (“McDermott”) as counsel in connection with the Chapter 11 Cases,
effective June 28, 2024. In support of the Application, the Committee submits the declaration of
Darren Azman, one of McDermott’s partners (the “Azman Declaration”), which is attached
hereto as Exhibit B, and respectfully represents as follows:
1
The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495. A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may
be obtained on the website of the Debtors’ claims and noticing agent at https://omniagentsolutions.com/Vyaire.
The location of Debtor Vyaire Medical, Inc.’s principal place of business and the Debtors’ service address in
these chapter 11 cases is 26125 North Riverwoods Boulevard, Mettawa, Illinois, USA 60045.
Case 24-11217-BLS Doc 230 Filed 07/09/24 Page 2 of 8
JURISDICTION AND VENUE
1. The Court has jurisdiction to consider the Application pursuant to 28 U.S.C.
§§ 157 and 1334 and the Amended Standing Order of Reference from the United States District
Court for the District of Delaware, dated February 29, 2012. This is a core proceeding under
28 U.S.C. § 157(b). Venue of these cases and the Application in this District is proper under
28 U.S.C. §§ 1408 and 1409.
2. The legal predicates for the relief requested herein are sections 328(a) and 1103(a)
of title 11 of the United States Code (the “Bankruptcy Code”), rule 2014 of the Federal Rules of
Bankruptcy Procedure (the “Bankruptcy Rules”), and rule 2014-1 of the Local Rules of
Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of
Delaware (the “Local Rules”).
3. The Committee confirms its consent, pursuant to Local Rule 9013-1(f), to the
entry of a final order by the Court in connection with the Application in the event that it is later
determined that the Court, absent consent of the parties, cannot enter final orders or judgments in
connection herewith consistent with Article III of the United States Constitution.
BACKGROUND
4. On June 9, 2024 (the “Petition Date”), the Debtors commenced the Chapter 11
Cases by filing petitions for relief under chapter 11 of the Bankruptcy Code with the Court. The
Debtors continue to operate their businesses and manage their properties as debtors in possession
under sections 1107(a) and 1108 of the Bankruptcy Code.
5. On June 26, 2024, the Office of the United States Trustee for the District of
Delaware (the “U.S. Trustee”) appointed the Committee under section 1102(a)(1) of the
Bankruptcy Code. See Docket No. 121.
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Case 24-11217-BLS Doc 230 Filed 07/09/24 Page 3 of 8
RELIEF REQUESTED
6. By the Application, the Committee requests the approval of its retention and
employment of McDermott as counsel in connection with the Chapter 11 Cases, effective
June 28, 2024.
MCDERMOTT’S EMPLOYMENT
7. It is necessary and appropriate for the Committee to employ McDermott to,
among other things:
(a) advise the Committee regarding its rights, powers, and duties in the
Chapter 11 Cases;
(b) assist and advise the Committee in its consultations and negotiations with
the Debtors and other parties in interest in connection with the
administration of the Chapter 11 Cases;
(c) solicit information from and provide information to the Debtors’
unsecured creditors as a group;
(d) assist the Committee in analyzing the claims of the Debtors’ creditors and
the Debtors’ capital structure and negotiating with holders of claims
against and interests in the Debtors;
(e) assist the Committee in its investigation of the acts, conduct, assets,
liabilities, and financial condition of the Debtors and their insiders and of
the operation of the Debtors’ businesses;
(f) assist the Committee in its analysis of, and negotiations with the Debtors
and other parties concerning, matters related to, among other things, the
assumption or rejection of executory contracts and unexpired leases, the
sale or other disposition of property of the Debtors’ estates, the financing
of other transactions, and the terms of one or more plans of reorganization
or liquidation for the Debtors and accompanying disclosure statements and
related plan documents;
(g) assist and advise the Committee on its communications with the Debtors’
unsecured creditors as a group regarding significant matters in the Chapter
11 Cases;
(h) monitor international proceedings involving the Debtors and property of
the Debtors’ estates;
3
Case 24-11217-BLS Doc 230 Filed 07/09/24 Page 4 of 8
(i) represent the Committee at all hearings and other proceedings before the
Court;
(j) review and analyze applications, orders, statements of operations, and
schedules filed with the Court and advise the Committee as to their
propriety and, to the extent deemed appropriate by the Committee,
support, join, or object thereto;
(k) advise and assist the Committee with respect to any legislative, regulatory,
or governmental activities;
(l) assist the Committee in its review and analysis of the Debtors’ various
agreements;
(m) prepare, on behalf of the Committee, any pleadings, including, without
limitation, motions, memoranda, complaints, objections, or comments in
connection with any matter related to the Debtors or the Chapter 11 Cases;
(n) investigate and analyze any claims belonging to the Debtors’ estates; and
(o) perform such other legal services as may be required or are otherwise
deemed to be in the interests of the Committee in accordance with the
Committee’s rights, powers, and duties, as set forth in the Bankruptcy
Code, the Bankruptcy Rules, the Local Rules, and other applicable law.
8. The Committee believes that it is necessary to employ counsel to render the
above-described professional services to the Committee so that the Committee may properly
fulfill its duties under the Bankruptcy Code. The Committee understands that McDermott
intends to work closely with the Committee’s other professionals, including its proposed
financial advisor, Berkeley Research Group, LLC, to ensure that there is no unnecessary
duplication of services.
9. The Committee selected McDermott because of its extensive experience in and
knowledge of complex chapter 11 matters. McDermott has represented official and unofficial
committees, debtors, and other primary case parties in numerous complex and prominent
chapter 11 bankruptcy cases in recent years, including cases in this jurisdiction. For these
reasons, the Committee believes McDermott possesses the requisite knowledge and expertise in
4
Case 24-11217-BLS Doc 230 Filed 07/09/24 Page 5 of 8
the areas of law relevant to the Chapter 11 Cases and is well qualified to represent the
Committee.
10. The Committee requests that all fees and related costs and expenses incurred by
the Committee on account of services rendered by McDermott in connection with the Chapter 11
Cases be allowed and paid as administrative expenses of the Debtors’ estates under sections
328(a), 330(a), 331, 503(b)(2), and 507(a)(2) of the Bankruptcy Code. Subject to the Court’s
approval, McDermott will charge for its legal services on an hourly basis in accordance with its
ordinary and customary hourly rates in effect on the date such services are rendered, subject to
sections 328(a), 330(a), and 331 of the Bankruptcy Code. McDermott’s hourly rates are subject
to periodic adjustments (typically effective as of January of each year) to reflect economic and
other conditions. The current standard hourly rates that McDermott charges for the services of
professionals and paraprofessionals employed in its U.S. offices that may be involved in
bankruptcy and restructuring matters are:
Title 2024 Standard Rates
Partners $1,325 - $2,150
Associates $645 - $1,335
Non-Lawyer Professionals $250 - $1,275
11. The names, positions, and applicable hourly rates of McDermott’s attorneys and
paralegals that are expected to have primary responsibility for providing services to the
Committee are as follows:
Attorney or Paralegal Position | Department Hourly Rate
Kristin K. Going Partner | Corporate Advisory $1,750
5
Case 24-11217-BLS Doc 230 Filed 07/09/24 Page 6 of 8
David R. Hurst Partner | Corporate Advisory $1,750
Darren Azman Partner | Corporate Advisory $1,650
Maris Kandestin Partner | Corporate Advisory $1,650
Carole Wurzelbacher Associate | Corporate Advisory $1,245
Rebecca Trickey Associate | Corporate Advisory $925
Nolley Rainey Paralegal | Corporate Advisory $500
As an accommodation to the Committee, McDermott has agreed to discount the amount of its
monthly invoices by an amount equal to 15% of the aggregate fees requested in each such
invoice.
12. In addition to the attorneys and paralegals named above, the Committee
understands that it may be necessary during the Chapter 11 Cases for other McDermott
professionals, including those in other legal disciplines, to provide services to the Committee.
13. McDermott has informed the Committee that McDermott’s policy is to charge its
clients in all areas of practice for expenses incurred in connection with its representation of its
clients. McDermott will charge for expenses in a manner and at rates consistent with charges
made generally to its other clients in accordance with the Bankruptcy Code, the Bankruptcy
Rules, the Local Rules, and any applicable orders of the Court. Such expenses include, among
other things, mail and express mail charges, special or hand delivery charges, travel expenses,
expenses for computerized research, and transcription costs. McDermott will maintain detailed
records of actual and necessary costs and expenses incurred in connection with the legal services
provided to the Committee.
14. McDermott has informed the Committee that it will apply for compensation for
all professional services performed and reimbursement of all expenses incurred in accordance
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Case 24-11217-BLS Doc 230 Filed 07/09/24 Page 7 of 8
with sections 330(a) and 331 of the Bankruptcy Code, Bankruptcy Rule 2016, Local Rule 2016-
2, and any applicable orders of the Court.
15. In addition, McDermott intends to make a reasonable effort to comply with the
U.S. Trustee’s requests for information and additional disclosures as set forth in the United
States Trustees’ Appendix B – Guidelines for Reviewing Applications for Compensation and
Reimbursement of Expenses Filed Under 11 U.S.C. § 330 by Attorneys in Larger Chapter 11
Cases, which became effective on November 1, 2013, in connection with both the Application
and any interim or final fee applications that McDermott files in the Chapter 11 Cases.
16. Upon information and belief, McDermott does not represent and does not hold
any interest adverse to the Debtors’ estates or creditors in the matters upon which McDermott is
to be engaged, except to the extent set forth in the Azman Declaration. McDermott is, however,
a large firm with a national and international practice and may represent or may have represented
certain of the Debtors’ creditors, equity holders, related parties, or other parties in interest in
matters unrelated to the Chapter 11 Cases.
NO PRIOR REQUEST
17. No prior request for the relief sought herein has been made to the Court or any
other court.
NOTICE
18. Notice of the Application will be provided to: (a) the U.S. Trustee; (b) counsel to
the Debtors; and (c) all parties entitled to notice under Local Rule 2002-1(b). The Committee
respectfully submits that no other or further notice is required.
[Remainder of Page Intentionally Left Blank]
7
Case 24-11217-BLS Doc 230 Filed 07/09/24 Page 8 of 8
CONCLUSION
WHEREFORE, the Committee respectfully requests that the Court: (a) enter an order,
substantially in the form of the Proposed Order, approving the retention and employment of
McDermott as the Committee’s counsel in connection with the Chapter 11 Cases, effective
June 28, 2024; and (b) grant such other and further relief as may be just and proper.
Dated: July 9, 2024 THE OFFICIAL COMMITTEE OF
UNSECURED CREDITORS
By: /s/ Sasha L. Azar
Sasha L. Azar, solely in my capacity as an
authorized signatory of Zensar
Technologies, Inc., the Chair of the Official
Committee of Unsecured Creditors of
Vyaire Medical, Inc., et al.
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