Page:Baker Botts L.L.P. v. ASARCO LLC.pdf/19

Rh the reasonable-compensation statute, did not “displace the American Rule with respect to fee-defense litigation.” The American Rule normally requires “[e]ach litigant” to “pa[y] his own attorney’s fees, win or lose.” Hardt v. ''Reliance Standard Life Ins. Co.'', 560 U. S. 242, 253 (2010).

But the American Rule is a default rule that applies only where “a statute or contract” does not “provid[e] otherwise.” Ibid. And here, the statute “provides otherwise.” Ibid. Section 330(a)(1)(A) permits a “court [to] award … reasonable compensation for actual, necessary services rendered by the trustee, examiner, ombudsman, professional person, or attorney and by any paraprofessional person employed by any such person.” This Court has recognized that through §330(a), Congress “ma[d]e specific and explicit [its] provisio[n] for the allowance of attorneys’ fees,” and thus displaced the American Rule. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 260, and n. 33 (1975) (listing §330(a)’s predecessor among examples of provisions authorizing attorney’s fees).

The majority suggests that the American Rule is not displaced with respect to fee-defense work in bankruptcy because §330(a) does not specifically authorize fees for that particular type of work. See (“Congress did not expressly depart from the American Rule to permit compensation for fee-defense litigation by professionals hired to assist trustees in bankruptcy proceedings”). To the extent that the majority intends to impose a requirement that a statute must explicitly mention fee-defense in order to provide compensation for that work, this requirement is difficult to reconcile with the Court's decision in Jean. There, the Court held that the Equal Access to Justice Act authorizes compensation for fee-defense work. See 496 U. S., at 160–166. The fee provision of the Equal Access to Justice Act, as enacted at the time, permitted an “award to a prevailing party … [of] fees and other expenses … incurred by that