There are many barriers to the successful appeal of an order confirming a Chapter 11 plan.  Beyond the practical and legal considerations, bankruptcy doctrines like equitable mootness may prevent an appellate court from even considering an appeal, regardless of its merits.  You can now add one more impediment for an Official Committee – or at least its counsel.  In a recent Texas decision, the Bankruptcy Court held that the plan’s administrative expense bar date blocked the award of fees incurred post-confirmation and post-bar date in appealing the confirmation order.  See In re Age Refining, Inc., 2014 WL 318220 (Bankr. W.D. Tex. 01/29/14).

Sometimes you just can’t win.  In this case, the Committee objected to confirmation and lost.  On appeal to the District Court, the appeal was dismissed on – you guessed it – equitable mootness grounds.  On further appeal to the Fifth Circuit Court of Appeals, the Committee prevailed in its argument that equitable mootness did not apply.  The Circuit Court reversed the dismissal and remanded the appeal to the District Court.  Committee counsel’s fee application followed.  But after success at the Circuit Court, counsel ended up unpaid for its work because the confirmed plan, although providing for the continuation of the Committee so it could prosecute the appeal, contained a bar date for administrative expenses that had passed long before.

Since the terms of the confirmed plan and the confirmation order barred the late application and since those terms are binding under section 1141, the Court denied the application.  Maybe the Committee could have insisted on an exception to the bar date for its appeal fees, but it seems unlikely that would be well-received by the plan proponent.  By the way, only a few weeks before this order denying fees, the District Court affirmed the confirmation order.  As they say – “What happens in Bankruptcy Court stays in Bankruptcy Court.”