Issue link: https://mbozikis.ufcontent.com/i/1422521
145 number of reported decisions where courts have denied the appointment of an examiner notwithstanding that the requirements of Section 1104(c)(2) have, or appear to have, been met (relying on the "as is appropriate" language of 1104(c)). See, e.g., U.S. Bank Nat'l Ass'n v. Wilmington Trust Co. (In re Spansion, Inc.), 426 B.R. 114, 128 (Bankr. D. Del. 2010). In other instances, the courts found other reasons to deny the request for an examiner, including that the matter sought to be investigated by the examiner would cause delay, additional costs, and otherwise adversely affect the administration of the estate when confirmation of debtor's plan would be addressed in the near term, Id. that the moving party waived its right to seek an examiner by being tardy in seeking the relief, In re Bradlees Stores, Inc., 209 B.R. 36 (Bankr. S.D.N.Y. 1997), or as a result of such creditor being a party to prepetition subordination agreements, In re Erickson Ret. Communities, LLC, 425 B.R. 309 (Bankr. N.D. Tex. 2010). However, there are a number of cases where courts have ruled that the language of Section 1104(c) makes appointment of an examiner mandatory. This was the reasoning adopted by the Sixth Circuit in Morgenstern v. Revco D.S., Inc. (In re Revco D.S., Inc.), 898 F.2d 498 (6th Cir. 1990), the only circuit decision addressing the issue. Although appointment of an examiner is mandatory upon a showing of cause, "the bankruptcy court retains broad discretion to direct the examiner's investigation, including its nature, extent, and duration." In re Revco D.S., Inc., 898 F.2d at 501. The primary duties of an examiner are to conduct an appropriate investigation of the debtor and to prepare and file "as soon as practicable" a report setting forth the examiner's findings, including facts relating to fraud, mismanagement, or other impropriety or irregularity in the management of the affairs of the debtor and whether there exist any causes of action available to the debtor's estate. However, recently, courts have broadened the duties of examiners. 79 79 For example, the types of multi-faceted, wide-ranging investigations examiners have been directed to perform in the Chapter 11 cases of In re SemCrude, L.P., In re Enron Corp., In re Lehman Bros. Inc., In re Dynegy