Vyaire - COC re McDermott Retention Application
- Date
- 2024-07-26
Summary
Doc. 324-1, filed July 26, 2024 in the jointly administered Chapter 11 cases of Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS), in the U.S. Bankruptcy Court for the District of Delaware, is Exhibit A, a revised proposed order. The order would authorize the Official Committee of Unsecured Creditors to retain and employ McDermott Will & Emery LLP as counsel, effective June 28, 2024, under Bankruptcy Code section 1103(a), with terms approved under section 328(a). It requires McDermott to give 10 days' notice before raising hourly rates, preserves the U.S. Trustee's right to object, and bars payment from the estates for defending objections to its fees. It also sets conditions for any use of contract attorneys and subcontractors, including pass-through of cost and Bankruptcy Rule 2014 disclosures. The filing is five pages and relates to Docket Nos. 215, 230, 321, 322, 323.
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Case 24-11217-BLS Doc 324-1 Filed 07/26/24 Page 1 of 5
EXHIBIT A
Revised Order
Case 24-11217-BLS Doc 324-1 Filed 07/26/24 Page 2 of 5
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. )
) Related to Docket Nos. 215, 230, 321, 322, 323
ORDER AUTHORIZING 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
Upon the application (the “Application”)2 of 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”) for the approval of 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; and upon consideration of the declaration of Darren Azman (the “Azman
Declaration”), which is attached to the Application as Exhibit B, the supplemental declaration of
Darren Azman in support of the Application [Docket Nos. 322, 323], and the declaration of
Sasha L. Azar in support of the Application [Docket No. 321]; and the Court having jurisdiction
over this matter 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,
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.
2
Capitalized terms that are used but not defined herein shall have the meanings ascribed to such terms in the
Application.
Case 24-11217-BLS Doc 324-1 Filed 07/26/24 Page 3 of 5
2012; and the matter being a core proceeding within the meaning of 28 U.S.C. § 157(b)(2); and
venue of this proceeding and the Application in this District being proper pursuant to 28 U.S.C.
§§ 1408 and 1409; and the Court being able to issue a final order consistent with Article III of
the United States Constitution; and due and sufficient notice of the Application having been
given under the particular circumstances; and it appearing that no other or further notice is
necessary; and it appearing that the relief requested in the Application is in the best interests of
the Debtors, their estates, their creditors, and other parties in interest; and after due deliberation
thereon; and good and sufficient cause appearing therefor; it is hereby,
ORDERED, ADJUDGED, AND DECREED that:
1. The Application is GRANTED to the extent set forth herein.
2. The Committee’s retention and employment of McDermott as counsel in
connection with the Chapter 11 Cases, including to represent the Committee in the Chapter 11
Cases and any matter or proceeding arising in or relating to the Chapter 11 Cases, on the terms
and conditions that are set forth in the Application and the Azman Declaration, effective June 28,
2024, is approved under Bankruptcy Code section 1103(a).
3. The terms and conditions of McDermott’s retention and employment as the
Committee’s counsel in connection with the Chapter 11 Cases, which are set forth in the
Application and the Azman Declaration, are reasonable and approved as such under Bankruptcy
Code section 328(a).
4. McDermott shall be compensated in accordance with the procedures set forth in
Bankruptcy Code sections 330(a) and 331, Bankruptcy Rule 2016, the Local Rules, and any
order establishing procedures for professionals’ interim compensation and reimbursement of
expenses.
2
Case 24-11217-BLS Doc 324-1 Filed 07/26/24 Page 4 of 5
5. McDermott shall provide 10 days’ notice to the Debtors, the U.S. Trustee, and the
Committee before implementing any increases in its hourly rates. The U.S. Trustee retains all
rights to object to any rate increase on all grounds, including the reasonableness standard set
forth in Bankruptcy Code section 330(a), and nothing in this Order shall prevent the Court from
reviewing any rate increase under Bankruptcy Code section 330(a).
6. McDermott shall make a reasonable effort to comply with the U.S. Trustee’s
requests for information and additional disclosures as set forth in 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.
7. McDermott shall neither apply nor receive payment from the Debtors’ estates for
any fees or expenses arising from the defense of an objection to a request for the award,
allowance, or payment of McDermott’s fees and expenses.
8. Notwithstanding anything in the Application to the contrary, McDermott shall
(i) to the extent that McDermott uses the services of contract attorneys, independent contractors,
or subcontractors (collectively, the “Contractors”) in these cases, pass through the cost of such
Contractors at the same rate that McDermott pays the Contractors; (ii) seek reimbursement for
actual costs only; (iii) ensure that the Contractors are subject to the same conflicts checks as
required for McDermott; and (iv) file with this Court such disclosures required by Bankruptcy
Rule 2014.
9. To the extent that the Application is inconsistent with this Order, this Order shall
govern.
3
Case 24-11217-BLS Doc 324-1 Filed 07/26/24 Page 5 of 5
10. The Committee is authorized to take any action that is necessary or appropriate to
effectuate the relief granted in this Order.
11. Notwithstanding any procedural rule to the contrary, this Order shall become
effective and enforceable immediately on its entry.
12. The Court retains jurisdiction of any matter arising from or relating to this Order
or its interpretation, implementation, or enforcement.
4
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- gov.uscourts.deb.193283.324.1.pdf
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