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Case 1:20-bk-12043 Doc 108 Filed 07/27/20 Entered 07/27/20 15,09:40 Desc Main <br /> Document Page 11 of 13 <br /> H. In addition, the Debtors seek approval of the Engagement Letter pursuant to <br /> section 328(a) of the Bankruptcy Code, which provides, in relevant part, that the Debtors "with <br /> the court's approval, may employ or authorize the employment of a professional person under <br /> section 327. . . on any reasonable terms and conditions of employment, including on a retainer, on <br /> an hourly basis, on a fixed or percentage fee basis, or on a contingent fee basis." Section 328 of <br /> the Bankruptcy Code permits the compensation of professionals, including sale and financial <br /> advisors, on more flexible terms that reflect the nature of their services and market conditions. As <br /> the United States Court of Appeals for the Fifth Circuit recognized in Donaldson Lain&Jenrette <br /> Sec. Corp. v. Nat'l Gypsum Co. (In re Nat'l Gypsum Co.), 123 F.3d 861 (5th Cir. 1997): <br /> Prior to 1978 the most able professionals were often unwilling to work for <br /> bankruptcy estates where their compensation would be subject to the uncertainties <br /> of what a judge thought the work was worth after it had been done. That uncertainty <br /> continues under the present § 330 of the Bankruptcy Code, which provides that the <br /> court award to professional consultants "reasonable compensation" based on <br /> relevant factors of time and comparable costs, etc. Under present § 328 the <br /> professional may avoid that uncertainty by obtaining court approval of <br /> compensation agreed to with the trustee (or debtor or committee). <br /> Id. at 862 (citations omitted), cited in Riker, Danzig, Scherer, Hyland& Perretti LLP v. Official <br /> Comm. of Unsecured Creditors (In re Stuart World Techs. LLC), 383 B.R. 869, 874 (S.D.N.Y. <br /> 2008). Owing to this inherent uncertainty, courts have approved similar arrangements that contain <br /> reasonable terms and conditions under section 328 of the Bankruptcy Code. See, e.g., In re <br /> Chaparral Energy, Inc., No. 16-11144 (Bankr. D. Del. June 10, 2016); In re Energy & Exp. <br /> Partners, Inc., No. 15-44931 (Bankr. N.D. Tex. Feb. 8, 2016). Furthermore, the Bankruptcy <br /> Abuse Prevention and Consumer Protection Act of 2005 amended section 328(a) of the <br /> Bankruptcy Code by inserting "on a fixed or percentage fee basis," after "hourly basis," as cited <br /> above. This change makes clear that the Debtors are able to retain a professional on a fixed or <br /> percentage fee basis, such as the Fee and Expense Structure, with bankruptcy court approval. <br /> 11 <br />