In re That's Entertainment Marketing Group

15 Citing cases

  1. Surrey Investment Services, Inc. v. Smith

    418 B.R. 140 (M.D.N.C. 2009)   Cited 6 times

    "Professional persons" is a term of art, however, and in some cases professionals, including those specifically listed in section 327, may not be required to be approved by the court, particularly when hired to serve as an expert witness. E.g.,Elstead v. Nolden ( In re That's Entertainment Mktg. Group, Inc.), 168 B.R. 226, 230 (N.D. Cal. 1994) (accountants, while commonly considered professionals under section 327, are not subject to section 327 when retained by trustee's special counsel, are testifying in collateral litigation, and are not assuming a "central role in the bankruptcy"); accord In re Action Video, Inc., No. 02-52402, 2003 WL 21350081, at *3 (Bankr. M.D.N.C. June 9, 2003) (citing That's Entertainment); In re First Am. Health Care of Ga., Inc., 208 B.R. 996, 998 (Bankr. S.D. Ga. 1996) (accountant retained solely as expert witness to collateral litigation). Thus, to the extent the expert was intended to testify in the Cause of Action, he might not, unlike Smith's attorney, necessarily be subject to court approval under section 327. The inquiry does not end here, however.

  2. In re Ponce Marine Farm, Inc.

    259 B.R. 484 (D.P.R. 2001)   Cited 13 times

    A professional person is one who plays a central role in the administration of the bankruptcy estate and in the bankruptcy proceedings. In re That's Entertainment Marketing Group, Inc., 168 B.R. 226, 230 (N.D.Cal. 1994) (citing Matter of D'Lites of America, Inc., 108 B.R. 352 (Bankr.N.D.Ga. 1989)). "A person's status as a `professional' is not determinative; the inquiry focuses on that person's duties. If the duties involved are central to the administration of the estate such duties are professional in nature."

  3. In re Partnership

    CASE NO: 05-39857 (Bankr. S.D. Tex. Jul. 31, 2008)   Cited 4 times

    Regardless, cases addressing the characterization of an expert witness as a "professional person" have looked to the "central to the administration of the estate" standard. Elstead v. Nolden (In re That's Entm't Mktg. Group, Inc.), 168 B.R. 226, 230 (N.D. Cal. 1994) (holding that accountants retained by the Trustee's special counsel to testify in "collateral litigation" did "not assume a `central role in the administration of the bankruptcy'" and were not therefore, subject to § 327); In re First Am. Health Care of Georgia, Inc., 208 B.R. 996 (Bankr. S.D. Ga. 1996) (finding § 327 inapplicable in retention by Debtor's criminal defense counsel of accounting firm for expert testimony in collateral criminal proceeding); In re Babcock Dairy Co. of Ohio, Inc., 70 B.R. 691 (Bankr. N.D. Ohio 1987) (finding that expert witness testifying in non-core district court adversary proceeding was not a professional under § 327). In Elstead, the Court explained:

  4. In re Bradley

    Case No. 02-12741 FRM (Bankr. W.D. Tex. Feb. 22, 2006)

    Case law supports this view. In re Artra Group, Inc., 308 B.R. 858 (Bankr. N.D.Ill. 2003); Elstead v. Nolden (In re That's Entm't Mktg. Group, Inc.), 168 B.R. 226 (Bankr. N.D. Cal. 1994). Whether employment of a "professional person" must be approved under 11 U.S.C. § 327 turns on the role the professional played in the administration of the estate.

  5. In re Artra Group, Inc.

    308 B.R. 858 (Bankr. N.D. Ill. 2003)   Cited 5 times

    "Courts have recognized various duties to be central to the administration of the estate, including assisting in the negotiation of the debtor's plan, assisting in the adjustment of the debtor/creditor relationship, disposing of the assets of the estate and acquiring assets on behalf of the estate." Elstead v. Nolden (In re That's Entertainment Mktg. Group, Inc.), 168 B.R. 226, 230 (N.D. Cal. 1994) (citations omitted). InThat's Entertainment, an accountant was retained solely to testify as an expert witness in intellectual property litigation.

  6. In re Argus Group 1700, Inc.

    199 B.R. 525 (Bankr. E.D. Pa. 1996)   Cited 8 times
    Declining to appoint special counsel to pursue specific litigation which was sine qua non of the bankruptcy case and which would leave very limited role for general bankruptcy counsel

    This Court should not and will not impose its judgment on the strategy and tactics to be employed to defend the Debtors in the State Court Action and prosecute the Federal Action. They are to be determined by counsel who has been approved by the Court as disinterested and free of conflict and whose compensation and cost reimbursements are tied to its proper exercise of discretion and responsibility in managing that litigation. If the Debtors should call Mr. LaRosa as an expert witness, Steinman's counsel would have the opportunity in cross examination to challenge his conclusions as they relate to the Debtors. Although the language of § 327 appears to suggest that accountants are professional persons as to whom court approval must be sought, the better view is that it is the person's duties, not his status, that is determinative. Elstead v. Nolden (In re That's Entertainment Marketing Group, Inc.), 168 B.R. 226, 230 n. 3 (N.D.Cal. 1994). In Elstead, the central issue to be resolved was whether an accounting firm hired by special counsel to the trustee to serve as an expert witness in litigation of an intellectual property action needed to be approved by the court to be awarded compensation by the trustee.

  7. In re Kurtzman

    220 B.R. 538 (S.D.N.Y. 1998)   Cited 14 times
    Finding that the bankruptcy court did not abuse its discretion when it denied the retention of counsel based on "prior problems involving time records, billing errors, professional conduct, and overall costs of legal services that had led to its conclusion of loss of confidence in the firm."

    While the test of the disinterestedness of the attorney is one consideration for the court in determining whether to approve a trustee's choice of attorney, nowhere in the statute is the court's discretion limited to determinations of disinterestedness. Indeed, the purpose of § 327 is: "to insure in advance both that the person's employment is necessary to the estate and that the person employed is disinterested and able to serve the best interests of the estate." In re That's Entertainment MarketingGroup, Inc., 168 B.R. 226, 229 (N.D.Cal. 1994) (emphasis added) (quoting In re Cormier, 35 B.R. 424 (D.Me. 1983)). Appellant cites In re Marvel Entertainment Group, Inc., supra, in support of his argument that the bankruptcy court's analysis is limited to determining questions of disinterestedness. Marvel, however, concerned an analysis of § 327(a) with respect to potential conflicts of counsel.

  8. Unsecured Creditors Committee v. Webb & Daniel

    204 B.R. 830 (M.D. Ga. 1997)   Cited 8 times
    Stating that to alter a fee agreement under § 328, a court must find that it was not possible to anticipate a certain development

    " This conclusion is consistent with the Court's reading of 11 U.S.C. §§ 327-330. See In re That's Entertainment Marketing Group, Inc., 168 B.R. 226 (N.D.Cal.1994); In re Argus Group 1700, Inc., 199 B.R. 525, 534 (Bankr.E.D.Pa.1996). The issue of court approval as a prerequisite for the employment of experts to assist in collateral litigation was not addressed by Judge Owens in the appeal of this case.

  9. In re Farwell Ventures Inc.

    659 B.R. 197 (Bankr. W.D. Wis. 2024)

    For example, an accountant retained as an expert witness in collateral intellectual property litigation had a "tangential relationship to the administration of the debtor's estate" and therefore was not required to be retained under § 327(a). In re That's Ent. Mktg. Grp., Inc., 168 B.R. 226, 230 (N.D. Cal. 1994). According to the debtor, even though True Tax provides accounting services and Ruef is a licensed accountant, court approval of their employment was not required because preparation and filing of pre-petition tax returns is something that the debtor would need to do regardless of the bankruptcy.

  10. In re Cal. Indep. Petroleum Ass'n

    No. 21-23169-B-11 (Bankr. E.D. Cal. Jan. 18, 2022)

    Inasmuch as the Consultants interact only with the Debtor, to the extent they are involved in this case their involvement is tangential and not central.See In re That's Entm't Mktg. Grp., Inc., 168 B.R. 226, 230 (N.D. Cal. 1994). The court notes that the Consultants' interaction with the Debtor in this case is significantly less than the interaction between the consultants and the respective debtors in Nine West and Brookstone.