Vyaire - Fourth Monthly Fee Application (October 2024)
- Date
- 2024-12-12
Summary
The fourth monthly fee application of McDermott Will & Emery LLP, counsel to the Official Committee of Unsecured Creditors, filed November 21, 2024 as Doc 759 in In re Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS), in the U.S. Bankruptcy Court for the District of Delaware. It covers October 1, 2024 through October 31, 2024 and seeks $263,284.78, equal to 80% of $329,105.98 in fees, plus $986.58 in expenses. Summary tables list prior monthly applications, billing by professional totaling 269.3 hours and $387,183.50 before a 15% client accommodation of $58,077.53, fees by project category, and expenses. The narrative describes work on contested and litigation-related matters ($118,442.00), asset disposition ($97,320.00), the plan and disclosure statement ($81,087.00) and communications with creditors ($43,126.00). The objection deadline is 12/12/24 at 4:00 p.m. (ET).
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Case 24-11217-BLS Doc 759 Filed 11/21/24 Page 1 of 15
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: 12/12/24 at 4:00 p.m. (ET)
) Hrg. Date: Only if an objection is filed
SUMMARY OF FOURTH MONTHLY FEE APPLICATION OF
MCDERMOTT WILL & EMERY LLP, COUNSEL TO THE OFFICIAL
COMMITTEE OF UNSECURED CREDITORS, FOR ALLOWANCE OF
COMPENSATION AND REIMBURSEMENT OF EXPENSES FOR THE
PERIOD FROM OCTOBER 1, 2024 THROUGH OCTOBER 31, 2024
Name of Applicant: MCDERMOTT WILL & EMERY LLP
Authorized to provide professional Official Committee of Unsecured
services to: Creditors of Vyaire Medical, Inc., et al.
Date of retention: July 30, 2024, effective June 28, 2024
Period for which compensation and
reimbursement are sought: October 1, 2024 through October 31, 2024
Amount of compensation sought as actual,
reasonable, and necessary: $263,284.78 (80% of $329,105.98)
Amount of reimbursement sought as actual,
reasonable, and necessary: $986.58
This is a: Monthly Fee Application
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 759 Filed 11/21/24 Page 2 of 15
Prior Monthly Applications:
MONTHLY FEE REQUESTED FEES APPROVED FEES HOLDBACK
APPLICATION AND EXPENSES AND EXPENSES
Application CNO Period Requested Requested Approved Approved Fees
Docket No. Date Covered Fees Expenses Fees Expenses Holdback
Date Filed Filed (80%) (100%) (20%)
Docket
No.
First 9/16/24 6/28/24- $738,990.00 $3,295.01 $591,192.00 $3,295.01 $147,798.00
Monthly D.I. 525 7/31/24
D.I. 402
8/21/24
Second 10/25/24 8/1/24- $536,880.40 $1,664.69 $429,504.32 $1,664.69 $107,376.08
Monthly D.I. 679 8/31/24
D.I. 592
10/1/24
Third N/A 9/1/30- $480,715.38 $2,222.21 Pending Pending $96,143.08
Monthly 9/30/24
D.I. 696
10/31/24
Total $1,756,585.78 $7,181.91 $1,020,696.32 $4,959.70 $351,317.16
ii
Case 24-11217-BLS Doc 759 Filed 11/21/24 Page 3 of 15
OFFICIAL COMMITTEE OF UNSECURED
CREDITORS OF VYAIRE MEDICAL, INC., ET AL.
SUMMARY OF BILLING BY PROFESSIONAL
OCTOBER 1, 2024 THROUGH OCTOBER 31, 2024
Position with
Name of Date of Total
the Applicant Hourly Total
Professional Bar Billed
and Practice Billing Rate2 Compensation
Person Admission Hours
Area
Partner;
Joel C. Haims 1994 $1,830 3.7 $6,771.00
Trial
Partner;
Kristin K. Going 2002 Corporate $1,750 58.9 $103,075.00
Advisory
Partner;
David R. Hurst 1998 Corporate $1,750 22.1 $38,675.00
Advisory
Partner;
Maris J. Kandestin 2004 Corporate $1,650 51.3 $84,645.00
Advisory
Partner;
Kelly D. Newsome 2015 White Collar $1,525 32.7 $49,867.50
& Securities
Associate;
Daniel A. Thomson 2019 Corporate $1,290 5.0 $6,450.00
Advisory
Associate;
Carole Wurzelbacher 2015 Corporate $1,245 31.2 $38,844.00
Advisory
Associate;
Kristin E. Schwam 2020 White Collar $1,200 29.6 $35,520.00
& Securities
Associate;
Rebecca E. Trickey 2022 Corporate $925 11.2 $10,360.00
Advisory
Law Clerk;
Matthew G. Gibson N/A $805 5.0 $4,025.00
Trial
Technology
Edward Y. Kwon N/A Project $570 1.3 $741.00
Manager
2
Except as set forth below, the rate represents the current standard hourly rate of each McDermott attorney and
paralegal who rendered legal services.
iii
Case 24-11217-BLS Doc 759 Filed 11/21/24 Page 4 of 15
Position with
Name of Date of Total
the Applicant Hourly Total
Professional Bar Billed
and Practice Billing Rate2 Compensation
Person Admission Hours
Area
Paralegal;
Nolley M. Rainey N/A Corporate $500 15.3 $7,650.00
Advisory
Litigation
Andy Garcia N/A Technology $280 1.0 $280.00
Data Analyst
Litigation
Daniel Valentino N/A Technology $280 1.0 $280.00
Data Analyst
Total 269.3 $387,183.50
Less 15% Client Accommodation3 $58,077.53
ADJUSTED TOTAL $329,105.98
Blended Rate: $1,222.084
3
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.
4
The blended rate was calculated by dividing the adjusted total fees sought by the aggregate number of hours
worked by McDermott Professionals.
iv
Case 24-11217-BLS Doc 759 Filed 11/21/24 Page 5 of 15
OFFICIAL COMMITTEE OF UNSECURED
CREDITORS OF VYAIRE MEDICAL, INC., ET AL.
SUMMARY OF FEES BY PROJECT CATEGORY
OCTOBER 1, 2024 THROUGH OCTOBER 31, 2024
Project Category Total Hours Total Fees
Case Administration 5.5 $3,710.00
Asset Disposition 64.2 $97,320.00
Meetings and Communications with Creditors 30.3 $43,126.00
Fee and Employment Applications 30.2 $42,673.50
Contested and Litigation-Related Matters 86.9 $118,442.00
Court Hearings 0.5 $825.00
Plan/Disclosure Statement 51.7 $81,087.00
Total 269.3 $387,183.50
Less 15% Client Accommodation5 $58,077.53
ADJUSTED TOTAL $329,105.98
5
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.
v
Case 24-11217-BLS Doc 759 Filed 11/21/24 Page 6 of 15
OFFICIAL COMMITTEE OF UNSECURED
CREDITORS OF VYAIRE MEDICAL, INC., ET AL.
SUMMARY OF EXPENSES
OCTOBER 1, 2024 THROUGH OCTOBER 31, 2024
Service Provider
Expense Category Total Expenses
(if applicable)
Outside Service Reliable $846.98
Messenger/Courier Reliable $9.60
Other Court Fees PACER $130.00
TOTAL $986.58
vi
Case 24-11217-BLS Doc 759 Filed 11/21/24 Page 7 of 15
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: 12/12/24 at 4:00 p.m. (ET)
) Hrg. Date: Only if an objection is filed
FOURTH MONTHLY FEE APPLICATION OF MCDERMOTT
WILL & EMERY LLP, COUNSEL TO THE OFFICIAL COMMITTEE OF
UNSECURED CREDITORS, FOR ALLOWANCE OF COMPENSATION
AND REIMBURSEMENT OF EXPENSES FOR THE PERIOD FROM
OCTOBER 1, 2024 THROUGH OCTOBER 31, 2024
McDermott Will & Emery LLP (the “Applicant” or “McDermott”), counsel to the
Official Committee of Unsecured Creditors (the “Committee”) of Vyaire Medical, Inc., et al., the
debtors and debtors in possession (collectively, the “Debtors”) in the above-captioned chapter 11
cases (the “Chapter 11 Cases”), hereby applies (the “Application”), pursuant to sections 330 and
331 of title 11 of the United States Code, 11 U.S.C. §§ 101-1532 (the “Bankruptcy Code”), Rule
2016 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), and Rule 2016-2
of the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court
for the District of Delaware (the “Local Rules”), for allowance of compensation for services
rendered and expenses incurred for the period from October 1, 2024 through October 31, 2024
(the “Application Period”), 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 759 Filed 11/21/24 Page 8 of 15
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 Bankruptcy Code sections
330 and 331, Bankruptcy Rule 2016, and Local Rule 2016-2.
3. McDermott 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
A. The Chapter 11 Cases
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 business and manage their properties as debtors and debtors in
possession under sections 1107(a) and 1108 of the Bankruptcy Code. No trustee or examiner has
been appointed in the Chapter 11 Cases.
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.
2
Case 24-11217-BLS Doc 759 Filed 11/21/24 Page 9 of 15
B. The Committee’s Retention of McDermott
6. On July 9, 2024, the Committee applied [Docket No. 215] to the Court for an
order authorizing the Committee to retain and employ McDermott as its counsel, effective as of
June 28, 2024. On July 30, 2024, the Court entered an order [Docket No. 336] authorizing such
retention.
C. The Interim Compensation Order
7. On July 9, 2024, the Court entered the Order (I) Establishing Procedures for
Interim Compensation and Reimbursement of Expenses for Retained Professionals and
(II) Granting Related Relief [Docket No. 218] (the “Interim Compensation Order”),2 which sets
forth the procedures for interim compensation and reimbursement of expenses in the Chapter 11
Cases. Specifically, the Interim Compensation Order provides that a retained professional may
file and serve a Monthly Fee Statement on or after the twenty-first (21st) day of each month
following the month for which compensation is sought. Provided that there are no objections to
the Monthly Fee Statement filed within twenty-one (21) days after the service of a Monthly Fee
Statement, the professional may file a certificate of no objection with the Court, after which the
Debtors are authorized to pay such professional eighty percent (80%) of the fees and one-
hundred percent (100%) of the expenses requested in such Monthly Fee Statement.
RELIEF REQUESTED
8. By this Application, McDermott requests the allowance of $263,284.78, which is
equal to eighty percent (80%) of the $329,105.98 in fees for professional services rendered by
2
Capitalized terms used but not defined herein shall have the meanings ascribed to such items in the Interim
Compensation Order.
3
Case 24-11217-BLS Doc 759 Filed 11/21/24 Page 10 of 15
McDermott during the Application Period.3 McDermott also requests reimbursement of $986.58
in expenses incurred during the Application Period in connection with its engagement by the
Committee.
DESCRIPTION OF SERVICES RENDERED
9. During the Application Period, McDermott professionals, including attorneys and
paraprofessionals (collectively, the “McDermott Professionals”), devoted 269.3 hours to, among
other things, contested and litigation-related matters, sale matters, plan and disclosure statement
matters, communications with the Committee and other creditors, and preparation of professional
fee applications. McDermott Professionals’ most significant work in these matter categories is
summarized below, and all work performed by McDermott Professionals is described in detail in
Exhibit A hereto, which provides a detailed itemization, by project category, of all services
performed by McDermott Professionals with respect to the Chapter 11 Cases during the
Application Period. This detailed itemization complies with Local Rule 2016-2(d) in that each
time entry contains a separate time allotment, a description of the type of activity, and the subject
matter of the activity, all time is billed in increments of one-tenth of an hour, time entries are
presented chronologically in categories, and all meetings or hearings are individually identified.
A. Contested and Litigation-Related Matters
Amount Sought: $118,442.00
10. During the Application Period, McDermott Professionals continued their
investigation into potential claims and causes of action. Among other things, McDermott
Professionals (i) prepared summaries and presentation materials for the Committee regarding the
investigation; (ii) reviewed materials produced in connection with discovery requests;
3
These figures reflect a 15% voluntary fee reduction provided by McDermott to the Committee as a client
accommodation.
4
Case 24-11217-BLS Doc 759 Filed 11/21/24 Page 11 of 15
(iii) conducted research regarding discovery matters, including issues relating to privilege;
(iv) met and conferred with the discovery parties as appropriate to better coordinate production
of discovery; and (iv) coordinated with the Committee’s other professionals regarding the on-
going investigation and strategy related to the same.
11. McDermott Professionals devoted a total of 86.9 hours to contested and litigation-
related matters during the Application Period, for which compensation in the amount of
$118,442.00 is sought.
B. Asset Disposition
Amount Sought: $97,320.00
12. During the Application Period, McDermott Professionals devoted time to, among
other things, reviewing asset purchase agreements, amendments thereto, and other documents
related to the sale of the Debtors’ assets. In addition, McDermott Professionals conferred with
the Committee’s financial advisor, the Debtors’ counsel, and the Committee regarding closing of
sales, the status thereof, and issues related thereto.
13. McDermott Professionals devoted a total of 64.2 hours to sale matters during the
Application Period, for which compensation in the amount of $97,320.00 is sought.
C. Plan/Disclosure Statement
Amount Sought: $81,087.00
14. During the Application Period, McDermott Professionals devoted substantial time
to matters relating to the Debtors’ proposed chapter 11 plan [Docket No. 518]. Among other
things, McDermott Professionals (i) conducted research relating to, among other things, the
releases in the proposed plan; (ii) coordinated with the Committee’s other professionals and
the Debtors’ advisors regarding a settlement of various issues relating to confirmation of the
plan; and (iii) drafted and revised a settlement proposal and counterproposal.
5
Case 24-11217-BLS Doc 759 Filed 11/21/24 Page 12 of 15
15. McDermott Professionals devoted a total of 51.7 hours to plan and disclosure
statement matters during the Application Period, for which compensation in the amount of
$81,087.00 is sought.
D. Meetings and Communications with Creditors
Amount Sought: $43,126.00
16. During the Application Period, McDermott Professionals prepared for and
conducted regular Committee meetings and communicated with the Committee members and
their counsel both as a group and on an individual basis. Among other things, McDermott
Professionals provided recommendations to the Committee regarding various requests of the
Debtors and other parties in interest, counseled the Committee in connection with the sale of the
Debtors’ assets, and delivered email updates regarding case status and various outstanding
matters. McDermott Professionals also coordinated with the Committee’s financial advisor to
prepare for weekly Committee calls by preparing, discussing, and reviewing Committee
presentations on topics such as the Debtors’ operations and finances and case strategy.
17. McDermott Professionals devoted a total of 30.3 hours to communications with
the Committee and other creditors (and related tasks) during the Application Period, for which
compensation in the amount of $43,126.00 is sought.
E. Fee and Employment Applications
Amount Sought: $42,673.50
18. During the Application Period, McDermott Professionals drafted and filed
McDermott’s September monthly fee application [Docket No. 696] and first interim fee
application [Docket No. 619]. McDermott Professionals also spent time assisting
the Committee’s financial advisor with the finalization and filing of its August monthly fee
application [Docket No. 612] and first interim fee application [Docket No. 633]. Finally,
6
Case 24-11217-BLS Doc 759 Filed 11/21/24 Page 13 of 15
McDermott Professionals reviewed the draft order appointing a fee examiner and coordinated
with the fee examiner and the U.S. Trustee regarding the same.
19. McDermott Professionals devoted a total of 30.2 hours to the preparation of
professional fee and retention applications during the Application Period, for which
compensation in the amount of $42,673.50 is sought.
DESCRIPTION OF ACTUAL, REASONABLE,
AND NECESSARY EXPENSES INCURRED
20. During the Application Period, McDermott incurred actual, reasonable, and
necessary expenses in connection with its engagement by the Committee in the aggregate
amount of $986.58, for which McDermott seeks reimbursement. Attached hereto as Exhibit B
are descriptions of the expenses actually incurred by McDermott in the performance of services
rendered as counsel to the Committee. The expenses are broken down into categories of charges,
including, among other things, the following charges: travel expenses, business meals, service
and hearing binder expenses, and certain other non-ordinary expenses.4
VALUATION OF SERVICES
21. McDermott Professionals have expended a total of 269.3 hours in connection with
this matter during the Application Period. The amount of time spent by each of the McDermott
Professionals providing services to the Committee during the Application Period is set forth in
Exhibit A. The rates reflected in this Application are McDermott’s normal hourly rates of
compensation for work of this character. The reasonable value of the services rendered by
4
In accordance with Del. Bankr. L.R. 2016-2(e)(iii), McDermott does not charge more than $0.10 per page for
photocopies, does not charge for incoming facsimile transmissions, and does not charge more than $0.25 per
page for outgoing facsimiles.
7
Case 24-11217-BLS Doc 759 Filed 11/21/24 Page 14 of 15
McDermott during the Application Period as counsel for the Committee in the Chapter 11 Cases
is $329,105.98.5
22. In accordance with the factors enumerated in Bankruptcy Code section 330,
McDermott submits that the amount requested is fair and reasonable given (a) the complexity of
the Chapter 11 Cases, (b) the time expended, (c) the nature and extent of the services rendered,
(d) the value of such services, and (e) the costs of comparable services other than in a case under
the Bankruptcy Code.
NO PRIOR REQUEST
23. No prior request for the relief requested in this Application has been made to this
Court or any other court.
CERTIFICATE OF COMPLIANCE AND REQUEST FOR WAIVER
24. The undersigned representative of McDermott certifies that he has reviewed the
requirements of Local Rule 2016-2 and that the Application substantially complies with that
Local Rule. To the extent that the Application does not comply in all respects with the
requirements of Local Rule 2016-2, McDermott believes that such deviations are not material
and respectfully requests that any such requirement be waived.
[Remainder of Page Intentionally Left Blank]
5
This figure reflects a 15% voluntary fee reduction provided by McDermott to the Committee as a client
accommodation.
8
Case 24-11217-BLS Doc 759 Filed 11/21/24 Page 15 of 15
WHEREFORE, McDermott respectfully requests that it (a) be allowed (i) compensation
in the amount of $263,284.98 (80% of the $329,105.98) for necessary professional services
rendered to the Committee during the Application Period, and (ii) reimbursement of actual and
necessary expenses in the amount of $986.58 incurred during that period, and (b) be granted such
other and further relief as the Court deems just and proper.
Dated: Wilmington, Delaware MCDERMOTT WILL & EMERY LLP
November 21, 2024
/s/ David R. Hurst
David R. Hurst (I.D. No. 3743)
Maris J. Kandestin (I.D. No. 5294)
The Brandywine Building
1000 N. West Street, Suite 1400
Wilmington, Delaware 19801
(302) 485-3900
dhurst@mwe.com
mkandestin@mwe.com
- and -
Darren Azman
Kristin K. Going
One Vanderbilt Avenue
New York, New York 10017
(212) 547-5400
dazman@mwe.com
kgoing@mwe.com
Counsel for the Official Committee
of Unsecured Creditors
9
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