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Debtor v. UST: The Battleground Over Retention of a Chief Restructuring Officer
Nearly two decades ago, a dispute between J. Alix & Associates and the Executive Office of the United States Trustee (EOUST) over J. Alix's proposed role in two turn-of-the-century restructuring cases (Harnischfeger Industries, Inc. and Safety-Kleen Corp.) led to détente, and a procedure that has generally governed the employment of chief restructuring officers (CRO) in bankruptcy cases since that time.
The "J. Alix Protocol," as it is known, does not have the force of law; rather, it is a set of guidelines by which the UST will not object to retention of a CRO under 11 U.S.C. §363(b), which allows the debtor to enter into transactions "outside the ordinary course of business" with court approval. The compromise struck in the Protocol is the incorporation of certain of the Bankruptcy Code's conflicts of interest, disclosure, and compensation guidelines applicable to case professionals (e.g., attorneys and financial advisors). See, 11 U.S.C. §Section 327(a).
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