In Re the Circle K Corporation, Debtor. The Circle K Corporation v. Houlihan, Lokey, Howard & Zukin, Inc.

ORDER AND AMENDED OPINION

ORDER

The opinion filed December 5, 2001, is amended as follows:

With this amendment, the panel has voted to deny appellee’s petition for rehearing and petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear, the matter en banc. Fed. R.App. P. 35.

The petition for rehearing and petition for rehearing en banc, filed December 19, 2001, is DENIED.

OPINION

Overview

This appeal presents the question of how a professional employed in the course of a Chapter 11 bankruptcy proceeding can be assured that its fees will be reviewed under the standards of 11 U.S.C. § 328 , rather than § 330. Section 328(a) permits a professional to have the terms and conditions of its employment pre-approved by the bankruptcy court, such that the bankruptcy court may alter the agreed-upon compensation only “if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions.” In the absence of preapproval under § 328, fees are reviewed at the conclusion of the…