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Court Issues General Order Governing Protocol for the Employment of Claims and Noticing Agents Under 28 U.S.C. § 156(c).

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On February 1, 2012, the Clerk of the United States Bankruptcy Court for the District of Delaware issued a general order governing the Protocol for the Employment of Claims and Noticing Agents Under 28 U.S.C. § 156(c) (the “Order”). The Order states in relevant part:

Scope of 28 U.S.C. § 156(c) Application (“156 Application”)

  • A 156 Application seeking to retain a claims and noticing agent (as retained, the “Agent”) should include only those duties that would be performed by a Clerk of the Court (“Clerk”) regarding notice and processing claims.
  • A 156 Application should exclude duties that would not be performed by the Clerk (e.g. schedules preparation, balloting agent, asset distributor pursuant to confirmed plan); the excluded services should be included in a separate application to the Court.

Agent Selection Process

  • The fee structure must be included in the engagement agreement and the engagement agreement must be annexed to the 156 Application.
  • The Agent shall:
    • Comply with all relevant statutory provisions and rules of procedure, including local rules of procedure, general orders, and applicable guidelines.
    • Agree to maintain all service records which show dates, categories of services, fees charged, and incurred expenses.
    • Be a disinterested person as defined in 11 U.S.C. § 101(14).
    • File and serve monthly invoices on the Debtor, the U.S. Trustee, any Committee monitoring the Debtor’s expenses, and any party-in-interest who requests service of the invoices.
    • Upon termination, archive the claims with the Federal Archives Record Administration, if applicable.
    • Agent’s failure to comply with its duties above may result in removal of Agent’s name from the list of approved agents.
  • The Debtor or Trustee shall:
    • Review proposals from at least three Court-approved claims agents and include in the 156 Application an affirmative statement, under penalty of perjury and Fed. R. Bankr. P. 9011, that the applicant chose the Agent after comparing at least three proposals.
    • Confer with Agent if any disputes arise regarding the engagement agreement or monthly invoices. If the parties cannot resolve the dispute, they may seek Court resolution.
    • Notify the Clerk’s office and Agent within seven days of an order dismissing or converting the case.
    • Obtain a termination order to terminate Agent’s services at the end of a case or upon termination of Agent’s services.
  • The Debtor or Trustee may:
    • Upon agent’s request, pay a retainer to cover expenses (postage, printing, publication, etc).

A copy of the Order is available here.

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