Robert J. Keach

Selected Fiduciary and Fee Examiner Engagements

Bob is currently the fee examiner for Exactech in Delaware. Bob is currently the fee examiner for a post-confirmation trust in a mass tort Chapter 11 Case.  Bob is also currently the fee examiner as to professionals retained by the Financial Oversight and Management Board for Puerto Rico in connection with non-Title III and post-effective date services. Mr. Keach served as the court-appointed fee examiner in the chapter 11 case of LTL Management, LLC pending in the District of New Jersey.  Bob also served as the court-appointed fee examiner in the following chapter 11 cases: AMR Corporation (the chapter 11 cases of American Airlines and its parent and certain affiliates, filed in the SDNY), Exide Technologies (D. Del.), Mineral Park (D. Del.), Relativity Media (SDNY), Intelsat S.A. et al. (E.D. Va.), and Murray Energy Holdings, et al (S.D. Ohio).  Among other private engagements, Bob was retained by a litigation trust formed pursuant to a plan of arrangement sanctioned under Canada’s Companies Creditors Arrangement Act to review, and advise the trust’s board with respect to, the conduct of the trustee and its counsel in prosecuting multi-billion dollar cross border fraud and fraudulent transfer litigation.

Selected National Engagements

Bob currently represents an ad hoc committee of deferred compensation claimants of Steward Health in the Southern District of Texas, In re Steward Health Care System, LLC (S.D. Texas). Bob represented the creditors committee in EYP Group Holdings, Inc. pending in the District of Delaware, and the secured lender and purchaser in Gold Standard Baking, also pending in Delaware.  Bob was co-counsel for the victorious petitioner in a case before the Supreme Court of the United States, Mission Product Holdings, Inc. v. Tempnology LLC, 139 S.Ct. 1652 (2019).  Bob is the estate representative (and formerly, the chapter 11 trustee) in the cross-border railroad reorganization of Montreal Maine & Atlantic Railway, Ltd.  Bob has, inter alia, represented ad hoc committees in the Homebanc Mortgage, New Century TRS Holdings, and Nortel Networks cases in Delaware, as well as a public utilities commission in the FairPoint Communications case in the Southern District of New York, and parties in In re Sports Authority Holdings, Inc. (Delaware), In re Verso Corporation (Delaware), In re Heritage Home Group (Delaware), In re The Bon-Ton Stores, Inc. (Delaware), and In re Toys R Us, Inc. (E.D. Va.).  Bob represents international private equity funds in distressed company acquisitions throughout the U.S. both in and outside of chapter 11 cases.

Selected Appointments and Appearances as an Expert Witness on Fee and Fee-Related Matters

• In his capacity as a court-appointed fee examiner (detailed below), Bob regularly files reports with the courts that appoint him, and addresses those courts as an expert on fee review.
• Bob was named as an expert, and deposed as an expert, in Houston Casualty Co., WSFS Financial Corp. and Wilmington Savings Fund Society, FSB v. Truist Financial Corp., No. 1:18-cv-01472-SB (D. Del.). He was retained by counsel to the defendant. The expert report and deposition testimony covered (a) whether the attorneys’ fees incurred by WSFS in various litigations were reasonable; and (b) whether the settlement entered into by WSFS of certain litigation was reasonable.
• Bob was named as an expert in PES Holdings LLC, et al. v. Allianz Global Risks U.S. Insurance Co. (In re PES Holdings LLC), No. 20-50454 (Bankr. D. Del.). The subject matter of the report and the proposed testimony was the interface of business interruption insurance and bankruptcy law and whether certain administrative expenses in a chapter 11 case, including professional fees, could be recovered under the policies in question, among other issues.
• Bob was named as an expert in In re SC SJ Holdings LLC, Case No. 21-10549 (JTD) (Bank. D. Del.). The expert report covered whether attorneys’ fees incurred by debtors’ counsel during the chapter 11 case were reasonable.
• Bob was named as an expert, and deposed as an expert, in Rochester MSA Building Co., et al v. UMB Bank N.A. as Trustee, Case No. 21-cv-2559 (ECT/ECW)(D. Minn.). The expert report and testimony covered whether attorneys fees and other professional fees incurred by a secured lender were allowable under the applicable loan documents and were otherwise reasonable under applicable law.

• Robert J. Keach and Adam R. Prescott, Confirming Nonconsensual Plans in Subchapter V: Exploring the “Projected Disposable Income” Requirement and What It Means (And Does Not Mean) For Small Business Debtors, 32 No. 2 J. Bankr. L. & Prac. NL Art. 1 (June 2023);
• Robert J. Keach and Adam R. Prescott, Balancing Act:  How the Small Business Reorganization Act Facilitates Successful Reorganizations (And How Judicial “Rebalancing” Could Affect That Success), 31 No. 6 J. Bankr. L. & Prac. NL Art. 1 (December 2022);
• Robert J. Keach and Lindsay Zahradka Milne, The Unconstitutional Confluence of Statutory Mootness Under Bankruptcy Code §363(m) and Bankruptcy Courts’ Discretion Under Rule 6004(h), 71 Syracuse Law Review 493 (2021);
• Robert J. Keach and Lindsay Zahradka Milne, Persuasive Authority: Compelled Third-Party Releases, 37 ABI Journal 12 (December 2018);
• Robert J. Keach and Andrew C. Helman, Life After Jevic: An End to Priority-Skipping Distributions?, 36 ABI Journal 9 (September 2017);
• Robert J. Keach and Brady C. Williamson, The Boomerang Effect:  Is There a Contract Exception to ASARCO?, 35 ABI Journal 14 (April 2016);
• Robert Keach and Al Togut, The ABI Commission to Study the Reform of Chapter 11 Enters Its Second Year, ABL Advisor (2013), Commission to Explore Overhauling Chapter 11, 30 ABI Journal 5, 36-37, 83 (June 2011);
• Chapter 11 as a Liquidation Tool: Legal, Tactical and Practical Considerations for Debtors, Lenders and Buyers, Collier Guide to Chapter 11:  Key Topics and Selected Industries, ¶ [4.01] (Alan N. Resnick and Henry J. Sommer eds.) (2015);
• Rule 2004 as a Pre-Litigation Tool in a Post-Twombly/Iqbal World: Part II, 29 ABI Journal 28 (Nov. 2010);
• Rule 2004 as a Pre-Litigation Tool in a Post-Twombly/Iqbal World: Part I, 29 ABI Journal 28 (Oct 2010);
• Declarations And Affidavits: Using And Defending Against Written “Nontestimonial” Evidence, 28 ABI Journal 1, 20, 68-69, (February 2009); 
• Selecting, Qualifying an Expert in Bankruptcy Proceedings: One Type Does Not Fit All, 27 ABI Journal 2, 26, 71-74 (March 2008);
• Selecting, Qualifying an Expert in Bankruptcy Proceedings: One Type Does Not Fit All: Part I, 27 ABI Journal 1, 26, 76-77 (Feb. 2008);
• BAPCPA and WARN Act ‘Back Pay’: Now, Timing Isn’t Everything, 24 ABI Journal 26 (Dec./Jan. 2006);
• Dead Man Filing Redux:  Is the New Individual Chapter Eleven Unconstitutional?, 13 AM. BANKR. INST. L. REV. 483 (Winter 2005);
• Afterlife, Reincarnation or Purgatory?  Post-confirmation Jurisdiction in the First Circuit, 24 ABI Journal 24 (Oct. 2005);
• Solvent Debtors and Myths of Good Faith and Fiduciary Duty, 23 ABI Journal 36 (Jan. 2005);
• Stalking –Horse Lenders and Good Faith: The Availability of Appellate Protection Under §§363(m) and 364 (e) For Asset Purchasers Extending DIP Financing, 23 ABI Journal 28 (June 2004);
• When the Committee is Not and When the Committee is No More, 22 ABI Journal 34 (Jan. 2004);
• A Hole in the Glove: Why ‘Negotiation’ Should Trump ‘Solicitation’, 22  ABI Journal 22 (June 2003);
• The Case Against KERPS, American Bankruptcy Institute (2003); 
• LaSalle, the “Market Test” and Competing Plans:  Still in the Fog, 21 ABI Journal 18 (December/January 2003);
• The Continued Unsettled State of Constructive Trusts in Bankruptcy:  Of Butner, Federal Interests and the Need for Uniformity, 103 COM. L. J. 411 (Winter 1998);
• “Free To Wander The Commercial Meadows”:  Controlling Debtor (and Creditor) Conduct in the Gap Period, American Bankruptcy Institute 1997;
• Partner and Partnership Bankruptcy: A Survey and Analysis of Case Law and Proposed Amendments to the Bankruptcy Code, American Bankruptcy Institute, 1996;
• Creditors Get “Gas”:  The Unsettled State Of Constructive Trusts in Bankruptcy After Columbia Gas and Omegas Group, American Bankruptcy Institute, 1995;
• Creditor Plans In Single-Asset Chapter 11 Cases:  Some Issues and Considerations.  Restructuring Real Estate Partnerships:  Is There Life After Greystone?, American Bar Association, 1992;
• Negative Amortization Plans, Feasibility, and the Fair and Equitable Test.  Current Developments, Restructuring Real Estate Partnerships:  Is There Life After Greystone?, American Bar Association, 1992;
• Allocating Tax Payments Made During a Bankruptcy Case First to Trust Fund Taxes After United States v. Energy Resources Co., Inc., 39th Annual Colby College Estate Planning and Tax Institute, 1992;
• Termination of Commercial Credit Relationships and the Implied Covenant of Good Faith and Fair Dealing, Business Torts Seminar, MSBA, 1990;
• Partner and Partnership Bankruptcy:  The Impact of the Filing of a Petition for Relief Under the Bankruptcy Code by a General Partner or a Partnership Upon the Partnership Assets, the Non-Filing Partners, and Partner and Partnership Creditors, Partnership Investments Seminar, MSBA, 1990;
• Miscellaneous articles for “Cracking the Code,” 1996-1997, at ABI World, www.abiworld.org