In Re: United Artists Theatre Company, et al. v. Donald F. Walton, Acting United States Trustee for Region 3

IN RE: UNITED ARTISTS THEATRE COMPANY, et al.,
Debtors

v.

*DONALD F. WALTON, Acting United States Trustee
for Region 3

*Donald F. Walton,
Appellant
*(Substituted Pursuant to F.R.A.P. 43(c))

Appeal from the United States District Court for the District of Delaware
(Del. Bankr. No. 00-03514)
District Judge: Honorable Sue L. Robinson

Argued: December 4, 2001

Before: ALITO, RENDELL, and AMBRO, Circuit Judges

(Opinion Filed: January 9, 2003)

ALITO, Circuit Judge, Concurring:

I fully join the thoughtful and scholarly opinion of the court but add a few words in response to Judge Rendell's concurring opinion. With respect, I believe that Judge Rendell's opinion quarrels with an opinion other than the one that the court has issued. The opinion of the court, as I understand it, holds only that the "reasonableness" standard of 11 U.S.C. S 328(a) does not categorically prohibit indemnification of financial advisers, as the United States Trustee argues. If such a blanket prohibition is desirable, it should be enacted by Congress.

Contrary to the suggestion in Judge Rendell's concurrence, the court does not hold that Houlihan Lokey's indemnification agreement must be interpreted in accordance with the principles of Delaware corporate law that the opinion of the court discusses. Nor does the court issue an authoritative interpretation of that agreement. Rather, the court discusses principles of Delaware corporate law because they provide a sophisticated framework for evaluating the conduct of financial advisers and because this understanding of the circumstances in which in it sensible to hold financial advisers responsible for unsuccessful business decisions helps to explain why indemnification agreements such as the one in this case are not categorically "unreasonable."

http://caselaw.lp.findlaw.com/data2/circs/3rd/011351p.pdf