IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50075

In the Matter of: CLIFFORD J. WOERNER; GAIL S. WOERNER, 

 Debtors

BARRON & NEWBURGER, P.C.,

Appellant

v.

TEXAS SKYLINE, LIMITED; PECOS & 15TH, LIMITED; UNITED STATES 

TRUSTEE; SKYLINE INTERESTS, L.L.C.,

Appellees

Appeals from the United States District Court

for the Western District of Texas

Before STEWART, Chief Judge, REAVLEY, JOLLY, DAVIS, JONES, 

SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, 

HAYNES, GRAVES, HIGGINSON and COSTA, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

This case concerns a bankruptcy court’s order reducing the fees a 

debtor’s counsel received under 11 U.S.C. § 330. On May 13, 2010, on the eve 

United States Court of Appeals

Fifth Circuit

FILED

April 9, 2015

Lyle W. Cayce

Clerk

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of a major state-court judgment against him, Debtor Clifford Woerner1 filed a 

voluntary petition under Chapter 11 of the Bankruptcy Code. Appellant 

Barron & Newburger (“B & N”), a law firm, represented Woerner in his 

Chapter 11 bankruptcy. On April 20, 2011, the bankruptcy court converted 

the case to Chapter 7. 

Its services terminated, B & N filed an application for fees in excess of 

$130,000. The bankruptcy court allowed approximately $20,000 and disallowed 

the remainder, finding that the additional fees were unreasonable. The district 

court affirmed. B & N appealed, contending that the bankruptcy court 

misapplied Fifth Circuit precedent and 11 U.S.C. § 330 in reducing the fees 

awarded to it. In an opinion issued on July 15, 2014, a panel of this Court 

affirmed the district court’s judgment. In re Woerner, 758 F.3d 693, 702 (5th 

Cir. 2014). However, all three members of the panel specially concurred to call

for en banc reconsideration of In re Pro–Snax Distributors, Inc., 157 F.3d 414 

(5th Cir. 1998), the opinion interpreting § 330 that controlled the appeal. In re 

Woerner, 758 F.3d at 702–06 (Prado, J., specially concurring).

We granted rehearing en banc to reexamine our decision in Pro–Snax. 

In re Woerner, 771 F.3d 820 (5th Cir. 2014) (per curiam). We now recognize 

that the retrospective, “material benefit” standard enunciated in Pro–Snax

conflicts with the language and legislative history of § 330, diverges from the 

decisions of other circuits, and has sown confusion in our circuit. 

Correspondingly, we overturn Pro–Snax’s attorney’s-fee rule2 and adopt the 

prospective, “reasonably likely to benefit the estate” standard endorsed by our 

sister circuits. 

1 Woerner filed a joint petition with his wife Gail Woerner. Because Gail Woerner was 

subsequently dismissed from the case, we refer to Woerner as the only debtor.

2 We leave undisturbed the remainder of that opinion.

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I. FACTUAL AND PROCEDURAL BACKGROUND

A. Events Before Woerner Filed for Bankruptcy

In 2006, Woerner and Texas Skyline, Ltd. formed a limited partnership 

for the purpose of undertaking a real estate venture. Within the partnership, 

DPRS—a company Woerner owned—was the sole general partner, Woerner 

was a limited partner with a 49.99% interest in the partnership, and Texas 

Skyline was the sole investor and a limited partner in the project. Over the 

course of the next three years, Woerner misappropriated funds from the 

partnership for personal use. When Texas Skyline discovered Woerner’s 

activities, it sued him in state court for breach of the partnership agreement 

and breach of fiduciary duties. The case proceeded to a bench trial on April 27, 

2010. After the parties rested, the state court announced an oral ruling in 

favor of Texas Skyline and set a remedies hearing for May 14, 2010.

Woerner and his state-court trial counsel met with B & N on May 4, 2010 

to discuss filing for bankruptcy. B & N agreed to the representation and filed 

Woerner’s voluntary petition for Chapter 11 bankruptcy relief on May 13—the 

night before the state-court remedies hearing. That filing triggered the 

Bankruptcy Code’s automatic stay provision, which brought the state-court 

proceeding to a halt. See 11 U.S.C. § 362(a).

B. B & N Litigates Woerner’s Chapter 11 Case

In the ensuing eleven months, B & N provided services that it claimed 

were worth $134,800 in legal fees. On May 18, 2010, with B & N’s assistance, 

Woerner filed mandatory disclosure documents with the bankruptcy court—

namely, schedules and a statement of financial affairs.

B & N also defended Woerner in adversary proceedings that were 

brought to prevent Woerner from discharging liabilities. On August 4, 2010, 

Texas Skyline initiated an adversary proceeding with the bankruptcy court 

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under 11 U.S.C. § 523(a)(4) for breach of fiduciary duty. Texas Skyline then 

fought to lift the stay of the state-court judgment. Woerner contested and lost, 

and the stay of state-court proceedings was lifted. Woerner also contested 

adversary proceedings brought by John Baker II, one of the other active 

creditors in this case. On November 2, 2010, Woerner filed Amended 

Schedules (b) and (c) and also amended his Statement of Financial Affairs.

B & N helped Woerner negotiate with his creditors. Woerner and the 

adversarial creditors agreed to mediation with a bankruptcy judge. Talks with 

Texas Skyline broke down, but on December 17, 2010, B & N filed a Joint 

Motion to Compromise with the bankruptcy court, which B & N maintained 

would have resolved this case. Yet Baker insisted that the settlement was 

merely a proposal, objected to it, and refused to execute it. For these 

negotiation services, B & N sought over $6,000. 

B & N also investigated the concealment of some of Woerner’s assets and 

subsequently amended Woerner’s financial disclosures to include 

approximately $9,000 of additional personal assets, including investments, 

jewelry, firearms, and fur coats that were not originally disclosed. This 

concealment prompted Baker to move to convert Woerner’s case from a 

Chapter 11 reorganization to a Chapter 7 trustee-administered liquidation. 

See 11 U.S.C. § 1112(b)(1) (requiring the bankruptcy court to convert or dismiss 

a Chapter 11 case upon finding “cause”). Texas Skyline moved to intervene in 

the motion to convert. B & N litigated Woerner’s attempts to press for a motion 

to approve the settlement and oppose the motion to convert. The billing records 

show that the firm (1) prepared a motion to sell some of Woerner’s personal 

property for the purpose of funding an appeal from the state-court judgment; 

(2) started investigating potential causes of action against Texas Skyline and 

Baker; (3) drafted a disclosure statement and reorganization plan; and 

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(4) deposed a representative from Texas Skyline about potential 

mismanagement of partnership assets. 

C. Woerner’s Case Is Converted to Chapter 7, Ending B & N’s 

Representation

The bankruptcy court conducted a hearing on the pending motions, 

denying the motion to approve the settlement and granting the motion to 

convert on April 20, 2011. As the bankruptcy court summarized in its oral 

ruling on the fee application, “the Court found that it was appropriate to 

convert this case to Chapter 7 because the Court was of the opinion . . . that 

[Woerner] w[as] not forthright as [a] Debtor[] under the Bankruptcy Code in 

terms of listing [his] assets and giving proper evaluations.” On September 3, 

2011, B & N filed an application for approximately $134,000 in fees under 

§ 330. Following the U.S. Trustee’s objection, B & N amended its fee 

application. B & N ultimately sought $130,656.50 in fees, and $5,793.37 in 

expenses. The Trustee renewed its objection to the fees. Texas Skyline also 

objected, arguing that all of the fees were unreasonable because (1) Woerner 

never had the means to fund a Chapter 11 reorganization and (2) B & N’s 

actions were dilatory and required creditors to incur unnecessary attorney’s 

fees.

D. The Bankruptcy Court Disallows Most of B & N’s Requested Fees

The bankruptcy court then conducted a hearing on the fee request. 

B & N offered testimony from Woerner’s nonbankruptcy counsel and two 

attorneys from B & N to prove that (1) Woerner brought the case for a 

legitimate purpose and (2) the litigation costs were driven up by Texas 

Skyline’s alleged intransigence. 

The bankruptcy court took the fee application under advisement and 

entered an oral ruling on April 11, 2012. Citing Pro–Snax, the bankruptcy 

court explained that, for a service to be compensable under § 330, fee 

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applicants must prove that the service resulted in an “identifiable, tangible, 

and material benefit to the bankruptcy estate,” Pro–Snax, 157 F.3d at 426.

Applying that standard, the bankruptcy court awarded the expenses in full but 

only $19,409.00 in fees—an 85% reduction. The bankruptcy court arrived at 

$19,409.00 by considering separately each category of fees (such as case 

administration, resisting a motion to lift the stay, preparing bankruptcy 

schedules, and similar categories), granting some in whole and some in part, 

and denying others. Most of the disallowed fees were denied due to B & N’s 

lack of success. Specifically, the bankruptcy court found much of B & N’s billed 

time was not of identifiable benefit to the estate. The district court entered its 

final order affirming the bankruptcy court on January 17, 2013. It ruled that 

the record supported finding that B & N’s fees were unreasonable under § 330 

and Pro–Snax. The district court observed that the bankruptcy court 

“specifically invoked Pro–Snax at the hearing on fees, and appears to have 

relied upon it in determining to reduce [B & N]’s fees based on the limited 

success and lack of benefit to the estate.” It declined to entertain B & N’s 

argument that Pro–Snax was wrongly decided and rejected B & N’s contention 

that the opinion’s operative language was dicta, concluding that Pro–Snax 

supplied the governing standard for attorney compensation under Chapter 11 

in the Fifth Circuit. Correspondingly, the district court found no error in the 

bankruptcy court’s application of Pro–Snax to B & N’s fee application. 

II. JURISDICTION AND STANDARD OF REVIEW 

B & N timely filed a notice of appeal from the bankruptcy court’s order 

to the United States District Court for the Western District of Texas under 28 

U.S.C. § 158(a)(1) and Federal Rule of Bankruptcy Procedure 8002(a). The 

district court had jurisdiction over Woerner’s Chapter 11 bankruptcy case 

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under 28 U.S.C. §§ 157, 158, and 1334. We have jurisdiction over this timely 

appeal from the district court’s order under 28 U.S.C. §§ 158(d)(1) and 2107(b).

This Court reviews the district court’s decision “by applying the same 

standard of review to the bankruptcy court’s conclusions of law and findings of 

fact that the district court applied.” In re Cahill, 428 F.3d 536, 539 (5th Cir. 

2005) (per curiam). Moreover, this Court reviews the bankruptcy court’s award 

of attorney’s fees for abuse of discretion. Id. (citing In re Coho Energy, Inc.,

395 F.3d 198, 204 (5th Cir. 2004); In re Barron, 325 F.3d 690, 692 (5th Cir. 

2003)). “An abuse of discretion occurs where the bankruptcy court (1) applies 

an improper legal standard[, reviewed de novo,] or follows improper procedures 

in calculating the fee award, or (2) rests its decision on findings of fact that are 

clearly erroneous.” Id. (citing In re Evangeline Ref. Co., 890 F.2d 1312, 1325 

(5th Cir. 1989)). 

III. DISCUSSION

B & N argues that this Court’s interpretation of § 330 in Pro–Snax is 

erroneous, and that remand to the bankruptcy court is warranted in order for 

that court to assess B & N’s request for attorney’s fees under the correct legal 

standard. The U.S. Trustee agrees with B & N that Pro–Snax was wrongly 

decided but maintains that remand is unnecessary because B & N is not 

eligible for any fees beyond those awarded by the bankruptcy court even under 

the more lenient prospective standard that B & N and the U.S. Trustee 

advocate. Texas Skyline contends that this Court should affirm the district 

court’s ruling regardless of our disposition of Pro–Snax because B & N is not 

entitled to the fees it seeks under any standard. We address these issues—the 

viability of Pro–Snax and the need for remand—in turn. 

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A. The Proper Standard for Awarding Attorney’s Fees Under § 330

B & N and the U.S. Trustee contend that the “hindsight” or “material 

benefit” standard we enunciated in Pro–Snax conflicts with the text and 

legislative history of § 330 and unnecessarily places us at odds with our sister 

circuits. We agree.

1. Statutory Framework

a. Reorganization Under Chapter 11 of the Bankruptcy Code

When a debtor commences a bankruptcy case, a legal entity known as 

the “estate” is created. 11 U.S.C. § 541(a). The estate contains all of the 

debtor’s property, subject to exceptions not applicable here. Id. When a debtor 

files a case to reorganize under Chapter 11, the debtor becomes the debtor-inpossession of the estate and takes on the rights, powers, and fiduciary duties 

of a trustee. Id. §§ 1101, 1106–1108; see also CFTC v. Weintraub, 471 U.S. 343, 

355 (1985). The debtor-in-possession retains control over the property of the 

estate and must repay creditors according to the terms of a reorganization 

plan. 11 U.S.C. §§ 1115(b), 1123, 1142. The proponent of a reorganization 

plan—usually, but not necessarily, the debtor-in-possession—must provide a 

court-approved disclosure statement that contains “adequate information” 

about the assets, liabilities, and financial affairs of the debtor sufficient to 

enable creditors to make an “informed judgment” about the plan. Id. §§ 1121, 

1125. Creditors may accept or reject the reorganization plan in a special voting 

process governed by the Bankruptcy Code. Id. § 1126.

If the creditors accept the reorganization plan, it must then be confirmed 

by the bankruptcy court. Id. § 1129. The confirmation of the reorganization 

plan typically brings the bankruptcy case to an end. Id. § 1141.

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b. Compensation to Professionals Under Chapter 11

The debtor-in-possession may ask the bankruptcy court for permission 

to employ professionals, including attorneys, to assist the debtor-in-possession 

with the reorganization of the bankruptcy estate. Id. § 327. 

Congress has enacted a uniform scheme for retaining and compensating 

such attorneys under 11 U.S.C. §§ 327–330. First, under § 327(a), the debtor 

must obtain the bankruptcy court’s approval to employ the attorney. Then, 

under § 330(a)(1)(A), an attorney who has been employed under § 327(a) may 

request “reasonable compensation for actual, necessary services rendered.” 

The bankruptcy court may exercise its discretion, upon motion or sua sponte, 

to “award compensation that is less than the amount . . . requested.” Id.

§ 330(a)(2). Section 330(a)(3) further directs courts to “consider the nature, the 

extent, and the value of” the legal services provided when determining the 

amount of reasonable compensation to award, “taking into account all relevant 

factors, including”:

(A) the time spent on such services;

(B) the rates charged for such services;

(C) whether the services were necessary to the administration of, 

or beneficial at the time at which the service was rendered

toward the completion of, a case under this title;

(D) whether the services were performed within a reasonable 

amount of time commensurate with the complexity, 

importance, and nature of the problem, issue, or task 

addressed;

(E) with respect to a professional person, whether the person is 

board certified or otherwise has demonstrated skill and 

experience in the bankruptcy field; and 

(F) whether the compensation is reasonable based on the 

customary compensation charged by comparably skilled 

practitioners in cases other than cases under this title.

Id. § 330(a)(3) (emphasis added).

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Section 330(a)(4) further lists those services for which a court may not

approve compensation:

(A) Except as provided in subparagraph (B), the court shall not allow 

compensation for—

(i) unnecessary duplication of services; or

(ii) services that were not—

(I) reasonably likely to benefit the debtor’s estate; or

(II) necessary to the administration of the case.

Id. § 330(a)(4) (emphasis added).

2. The Pro–Snax Retrospective, “Material Benefit” Standard

The underlying bankruptcy case at issue in Pro–Snax was initiated when 

creditors filed an involuntary Chapter 7 bankruptcy petition against the 

debtor. Pro–Snax, 157 F.3d at 416. The bankruptcy court later converted the 

case to Chapter 11 upon the debtor’s consent and appointed a Chapter 11 

trustee soon thereafter. Id. The debtor proposed a plan of reorganization, but 

the bankruptcy court denied confirmation of the plan based largely on the 

creditors’ objections. Id. at 416–17. The court then converted the case back to 

a Chapter 7 proceeding. Id. at 417.

The law firm Andrews & Kurth (“A & K”) provided legal services to the 

debtor both before and after the case had been converted to Chapter 11. Id. at 

416–17. Upon A & K’s fee application, the bankruptcy court awarded A & K 

$30,000 in fees and $7,500 in expenses. Id. at 417 n.4. The district court 

reversed the award on the ground that § 330 precluded A & K from being 

compensated from the assets of the estate for work performed after the Chapter 

11 trustee had been appointed. Id. at 419. The district court remanded the 

case to the bankruptcy court, however, for a recalculation of fees in light of the 

creditors’ concession that A & K was entitled to compensation for the work it 

performed before the Chapter 11 trustee was appointed. Id. at 419. In so 

doing, the district court instructed the bankruptcy court to consider the 

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“backdrop of the American Rule, any statutory exceptions to that rule 

applicable in this case, and the usual standards for the award of fees to be paid 

by other parties to the litigation.” Family Snacks, Inc. v. Andrews & Kurth, 

L.L.P. (In re Pro–Snax Distribs., Inc.), 212 B.R. 834, 839 (N.D. Tex. 1997). 

On appeal, our Court divided its discussion of the merits into two parts. 

We first took up the issue of “whether a Chapter 11 debtor’s attorney may be 

compensated for work done after the appointment of a trustee under § 330(a) 

of the Bankruptcy Code.” Pro–Snax, 157 F.3d at 416. After considering the 

statutory language of § 330, congressional intent, and public policy, this Court 

ultimately concluded that § 330, on its face, precludes any award of fees to a 

debtor’s attorney for that attorney’s work performed after a Chapter 11 trustee 

has been appointed. Id. at 425–26. The Supreme Court later vindicated this 

holding in Lamie v. U.S. Trustee, 540 U.S. 526 (2004), and our opinion today 

has no effect on this holding.

In the second, briefer part of the opinion, of relevance here, we discussed 

the applicable standard to evaluate A & K’s fee application for the services it 

rendered to the debtor before the trustee was appointed. This Court considered 

two possible tests advocated by the parties. A & K urged the use of a 

“reasonableness” test—“whether the services were objectively beneficial 

toward the completion of the case at the time they were performed.” Id. at 426 

(emphasis added). The creditors, on the other hand, advanced a hindsight 

approach—whether the services “resulted in an identifiable, tangible, and 

material benefit to the bankruptcy estate.” Id. (emphasis added). Citing only 

In re Melp, Ltd., 179 B.R. 636 (E.D. Mo. 1995), we adopted the stricter 

“hindsight” or “material benefit” measure, expressing our reluctance “to hold 

that any service performed at any time need only be reasonable to be 

compensable.” Id. It is this standard that we reconsider today.

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3. The Text, History, and Application of § 330

a. The Text of § 330

Section 330 gives a bankruptcy court discretion to determine the amount 

of reasonable compensation. But the statute also constrains that discretion by 

requiring the court to “tak[e] into account” a set of listed factors, including 

“whether the services were necessary to the administration of, or beneficial at 

the time at which the service was rendered toward the completion of, a case 

under this title.” 11 U.S.C. § 330(a)(3)(C) (emphasis added). 

The statute reinforces this point in an accompanying section: a court 

must disallow any compensation when the services “were not reasonably likely 

to benefit the debtor’s estate or necessary to the administration of the case.” 

Id. § 330(a)(4)(A)(ii) (punctuation omitted); see In re ASARCO, L.L.C., 751 F.3d 

291, 299 (5th Cir.), cert. granted, 135 S. Ct. 44 (2014) (“Section 330 states twice, 

in both positive and negative terms[,] that professional services are 

compensable only if they are likely to benefit a debtor’s estate or are necessary 

to case administration.” (citation omitted)); In re Ames Dep’t Stores, Inc., 76 

F.3d 66, 71 (2d Cir. 1996) (referring to “reasonably likely to benefit the debtor’s 

estate” as an “inverse construction” of § 330(a)(3)(C)), abrogated on other 

grounds by Lamie, 540 U.S. 526. Read together, a court may compensate an 

attorney for services that are “reasonably likely to benefit” the estate and 

adjudge that reasonableness “at the time at which the service was rendered.”

Section 330, then, explicitly contemplates compensation for attorneys 

whose services were reasonable when rendered but which ultimately may fail to 

produce an actual, material benefit. “Litigation is a gamble, and a failed gamble 

can often produce a large net loss even if it was a good gamble when it was 

made.” In re Taxman Clothing Co., 49 F.3d 310, 313 (7th Cir. 1995). The statute 

permits a court to compensate an attorney not only for activities that were 

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“necessary,” but also for good gambles—that is, services that were objectively 

reasonable at the time they were made—even when those gambles do not 

produce an “identifiable, tangible, and material benefit.” What matters is that, 

prospectively, the choice to pursue a course of action was reasonable.3 

b. The Legislative History of § 330

The legislative history of § 330 provides additional support for this 

reading. When Congress enacted § 330 in 1978, it relaxed the previously 

stringent standard that bankruptcy courts applied in reviewing professional 

fee awards. 3 Collier on Bankruptcy ¶ 330.LH[4] (16th ed. 2015). Under the 

old regime, our Court enforced a “strong policy . . . that estates be administered 

as efficiently as possible.” In re First Colonial Corp. of Am., 544 F.2d 1291, 

1299 (5th Cir. 1977) (citations omitted), superseded by statute, 11 U.S.C. § 330. 

This policy originated in the idea that “[s]ince attorneys assisting the trustee 

in the administration of a bankruptcy estate are acting not as private persons 

but as officers of the court, they should not expect to be compensated as 

generously for their services as they might be were they privately employed.” 

Id. (citation omitted); see also Mass. Mut. Life Ins. Co. v. Brock, 405 F.2d 429, 

432–33 (5th Cir. 1968) (holding that the interest of the public—especially the 

debtor and creditors—could limit compensation to a debtor’s counsel), 

superseded by statute, 11 U.S.C. § 330. 

3 In re Taxman Clothing Co. provides a concrete example:

Suppose that [debtor’s attorney] had been seeking to recover . . . $330,000 and 

that he had had a 90 percent chance of winning a judgment for that amount 

and successfully defending the judgment in this court. An expenditure of 

$85,000 in attorney’s fees would not be unreasonable when the expected 

benefit was $297,000 ($330,000 x .9), so if the attorney performed competently 

but simply was unlucky and lost he would have a good claim for his fees . . . .

49 F.3d at 313.

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But “[i]n enacting section 330, Congress intended to move away from 

doctrines that strictly limited fee awards” and instead provide compensation 

“commensurate with the fees awarded for comparable services in nonbankruptcy cases.” In re UNR Indus., Inc., 986 F.2d 207, 208–09 (7th Cir. 

1993) (citing, inter alia, H.R. Rep. No. 95–595, at 329–30 (1978), reprinted in 

1978 U.S.C.C.A.N. 5963, 6286). To that end, § 330 instructs courts to award 

“reasonable compensation” for “actual, necessary services” based on “the 

nature, the extent, and the value of such services.” 11 U.S.C. § 330(a). 

Congress took a further step in 1994 when it “codif[ied] many of the factors 

previously considered by courts in awarding compensation and reimbursing 

expenses.” 3 Collier on Bankruptcy ¶ 330.LH[5]; see Bankruptcy Reform Act 

of 1994, Pub. L. No. 103-394, § 224, 108 Stat. 4106, 4130–31 (1994).4 In 

particular, Congress added the language at issue here: §§ 330(a)(3)(C) 

and 330(a)(4)(A). 

The drafting history of those provisions suggests that Congress 

considered and specifically rejected an actual-benefit test. The Senate version 

of the Bankruptcy Reform Act of 1994 contained the seed of the eventual 

guidelines for reasonable compensation contained in § 330. See S. 540, 103d 

Cong. § 309 (as reported by S. Comm. on the Judiciary, Oct. 28, 1993). The Bill 

reported out of the Senate Judiciary Committee differed in at least one 

important respect from the eventual Act, however. That Senate draft 

instructed courts only to consider “whether the services were necessary in the 

administration of or beneficial toward the completion of a case under [the 

4 For example, our circuit was among the first to conclude that the factors developed 

for determining reasonable attorney’s fees in the non-bankruptcy context were “equally 

useful” in assessing bankruptcy attorney’s fees. First Colonial, 544 F.2d at 1299 (applying 

factors from Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974), 

to a bankruptcy fee determination). Those same factors formed the foundation for the 1994 

revision. See 3 Collier on Bankruptcy ¶ 330.LH[5] n.12. 

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Bankruptcy Code].” Id. After adopting a floor amendment, however, the 

Senate added the words “at the time at which the service was rendered” after 

the word “beneficial.” See 140 Cong. Rec. 8383 (1994) (setting out amendment 

1645 to S. 540); S. 540, 103d Cong. § 310 (as passed by Senate, Apr. 26, 1994); 

see also Lamie, 540 U.S. at 539–40 (discussing amendment 1645). The House 

version of the legislation did not include any guidelines for determining the 

reasonableness of attorney compensation. See generally H.R. 5116, 103d Cong. 

(as reported by H. Comm. on the Judiciary, October 4, 1994). The legislative 

process therefore strongly suggests that Congress could not have intended the 

language in § 330 to impose an actual-benefit requirement determinable by a 

court only at the completion of the case. 

c. The Application of § 330 in Other Circuits

In light of the plain language of § 330(a)(4)(A) after the 1994 

amendments, the Second, Third, and Ninth Circuits have rejected the actualbenefit test in favor of a prospective standard. In In re Ames Department

Stores, Inc., the Second Circuit expressly rejected an approach that would 

make fee awards “contingent upon a showing of actual benefit to the estate,” 

opting instead to give effect to the statute’s “reasonably likely to benefit the 

debtor’s estate” standard. 76 F.3d at 71–72. The Third Circuit similarly

rejected the actual-material-benefit standard, concluding that it departed from 

the statute by imposing a “heightened standard” and requiring evaluation “by 

hindsight.” In re Top Grade Sausage, Inc., 227 F.3d 123, 131–32 (3d Cir. 2000),

abrogated on other grounds by Lamie, 540 U.S. 526. Finally, the Ninth Circuit 

held that § 330(a)(4)(A) superseded that court’s past precedent, which had 

“requir[ed] that the services actually provide an ‘identifiable, tangible and 

material benefit to the [debtor’s] estate.’” In re Smith, 317 F.3d 918, 926–27

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(9th Cir. 2002) (quoting In re Xebec, 147 B.R. 518, 523 (B.A.P. 9th Cir. 1992)), 

abrogated on other grounds by Lamie, 540 U.S. 526.5 

Pro–Snax’s only citation in support of the actual-benefit test was In re 

Melp, a case that interpreted the pre-1994 version of § 330. See 179 B.R. at 

639 (quoting pre-1994 language). Indeed, the only other circuit precedents to 

apply an actual-benefit requirement either were decided before 1994 or relied 

entirely on pre-1994 precedent for determining “reasonable compensation.”6 

As discussed above, though, whereas the pre-1994 statutory language did not 

provide guidance on whether to consider the reasonable likelihood a service 

would benefit the estate, the post-1994 language foreclosed an actual-benefit 

test by requiring that the court evaluate the likelihood of benefit to the estate 

at the time the service was rendered. All other circuits that have construed 

the post-1994 version of § 330 have recognized this distinction. Pro–Snax’s 

reliance on Melp is misplaced and puts us out of step with our sister circuits.7

4. The Prospective, “Reasonable at the Time” Standard

We conclude that § 330 embraces the “reasonable at the time” standard 

for attorney compensation endorsed by our colleagues in the Second, Third, 

5 The Seventh Circuit has applied a similar rule without specifically relying on the 

post-1994 guidelines. See In re Taxman Clothing Co., 49 F.3d at 314–16 (holding that the 

bankruptcy court abused its discretion in granting a fee award to an attorney whose 

preference action did not have a reasonable likelihood of benefiting the estate).

6 See In re Kohl, 95 F.3d 713, 714 (8th Cir. 1996) (“[A]n attorney fee application in 

bankruptcy will be denied to the extent the services rendered were for the benefit of the 

debtor and did not benefit the estate.” (quoting In re Reed, 890 F.2d 104, 106 (8th Cir. 1989)); 

In re Lederman Enters., Inc., 997 F.2d 1321, 1323 (10th Cir. 1993) (“An element of whether 

the services were ‘necessary’ is whether they benefited the bankruptcy estate.”); Grant v. 

George Schumann Tire & Battery Co., 908 F.2d 874, 882–83 (11th Cir. 1990) (interpreting 

pre-1994 § 330 as requiring that attorney’s appeal bring a benefit to the estate).

7 We note that courts within our own Circuit have applied Pro–Snax unevenly. See, 

e.g., In re Broughton Ltd. P’ship, 474 B.R. 206, 209 n.5 (Bankr. N.D. Tex. 2012) (collecting 

cases and observing that “[l]ower courts have adopted differing views of what type of 

retrospective analysis should be employed and have disagreed whether a prospective analysis 

may be considered in determining whether Pro–Snax is satisfied”).

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and Ninth Circuits. As explained above, the text and legislative history of

§ 330 contemplate a prospective standard for the award of attorney’s fees 

relating to bankruptcy proceedings—one that looks to the necessity or 

reasonableness of legal services at the time they were rendered. Under this 

framework, if a fee applicant establishes that its services were “necessary to 

the administration” of a bankruptcy case or “reasonably likely to benefit” the 

bankruptcy estate “at the time at which [they were] rendered,” see 11 U.S.C. 

§ 330(a)(3)(C), (4)(A), then the services are compensable. 

In assessing the likelihood that legal services would benefit the estate, 

courts adhering to a prospective standard ordinarily consider, among other 

factors, the probability of success at the time the services were rendered, the 

reasonable costs of pursuing the action, what services a reasonable lawyer or 

legal firm would have performed in the same circumstances, whether the 

attorney’s services could have been rendered by the Trustee and his or her 

staff, and any potential benefits to the estate (rather than to the individual 

debtor). See, e.g., In re Strand, 375 F.3d 854, 860–61 (9th Cir. 2004); In re Top 

Grade Sausage, Inc., 227 F.3d at 132; In re Ames Dep’t Stores, Inc., 76 F.3d at 

72; In re Taxman Clothing Co., 49 F.3d at 313–15. Whether the services were 

ultimately successful is relevant to, but not dispositive of, attorney 

compensation. See 11 U.S.C. § 330(a)(3) (“[T]he court shall consider the nature, 

the extent and the value of such services, taking into account all relevant 

factors . . . .” (emphasis added)); In re Smith, 317 F.3d at 926; In re Top Grade 

Sausage, Inc., 227 F.3d at 132; In re Ames Dep’t Stores, Inc., 76 F.3d at 71; cf.

Johnson, 488 F.2d at 718 (instructing courts to consider “the results obtained” 

by an attorney seeking compensation); see also In re Pilgrim’s Pride Corp., 690

F.3d 650, 656 (5th Cir. 2012) (affirming the continued relevance of the Johnson

factors).

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Insofar as Pro–Snax precludes resort to this prospective analysis, we 

overrule those portions of the opinion. We recognize, however, that Pro–Snax’s

principal holding remains valid, and we observe that our ruling today is not 

intended to limit courts’ broad discretion to award or curtail attorney’s fees 

under § 330, “taking into account all relevant factors,” 11 U.S.C. § 330(a)(3). 

Having articulated a new standard, we now must decide whether remand is 

warranted in order for the bankruptcy court to assess B & N’s attorney’s-fee 

application under the appropriate standard.

B. The Need for Remand to Analyze B & N’s Attorney’s-Fee Request

We review a bankruptcy court’s fee determination for abuse of discretion, 

and remand is warranted when the bankruptcy court “(1) applies an improper 

legal standard or follows improper procedures in calculating the fee award, or 

(2) rests its decision on findings of fact that are clearly erroneous.” Cahill, 428 

F.3d at 539.

B & N asserts that remand is compulsory because the bankruptcy court 

premised its findings of fact and conclusions of law on Pro–Snax’s nowerroneous “material benefit” standard. Both Texas Skyline and the U.S. 

Trustee counter that remand is unnecessary because this Court can affirm the 

district court’s ruling on any ground supported by the record, e.g., Zuspann v. 

Brown, 60 F.3d 1156, 1160 (5th Cir. 1995), and because there is “no reasonable 

possibility that the outcome would be different” on remand, Sims v. ANR 

Freight Sys., Inc., 77 F.3d 846, 849 (5th Cir. 1996) (citing Joshi v. Fla. State 

Univ. Health Ctr., 763 F.2d 1227, 1236 (11th Cir. 1985)). The U.S. Trustee 

points out that when the bankruptcy court denied B & N’s motion to certify the 

matter for direct appeal, it indicated that the case was “not a good candidate”

because the disposition would be the same “whether you don’t or you do apply 

the results oriented component of Pro–Snax.” But although the bankruptcy 

court stated its impression that the outcome would be the same under either 

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standard, it did not conduct its analysis with an eye toward the prospective 

inquiry whether the services were “reasonable at the time” they were rendered.

Cf. In re Missionary Baptist Found. of Am., Inc., 712 F.2d 206, 211, 213 (5th 

Cir. 1983) (remanding where the bankruptcy court failed to set forth findings 

of fact and conclusions of law under each element of the relevant test). In the 

absence of findings of fact premised on a prospective rule, we cannot say with 

certainty that there is “no reasonable possibility that the outcome would be 

different” on remand, Sims, 77 F.3d at 849.

Because our opinion today announces a new legal rule, and out of an 

abundance of caution given the complex facts of the case before us, we remand 

this matter for the bankruptcy court to evaluate whether B & N is entitled to 

fees under the prospective, “reasonable at the time” standard. 

IV. CONCLUSION

For the foregoing reasons, we overrule Pro–Snax’s attorney’s-fee

standard and join our colleagues in the Second, Third, and Ninth Circuits in 

prescribing a prospective, “reasonable at the time” standard for the award of 

attorney’s fees in a Chapter 11 bankruptcy proceeding. We therefore VACATE 

the award of attorney’s fees and REMAND this matter to the district court. We 

further direct the district court to remand to the bankruptcy court to apply the 

newly announced standard to the facts of this case.8

8 In light of the extensive record and in the interest of judicial economy, we leave it in

the sound discretion of the bankruptcy court whether it can decide this question on the 

existing record or whether further factual development is warranted.

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E. GRADY JOLLY, Circuit Judge, specially concurring:

I concur in Judge Prado’s thorough and comprehensive writing and write 

separately only to synthesize the legal standard that we now adopt: 

A bankruptcy court’s analysis of attorney fee awards ordinarily 

should begin and end by applying the statutory language in 11 

U.S.C. § 330. This analysis usually can be reduced as follows: (1) 

a court is permitted, but not required, to award fees under § 330 

for services that could reasonably be expected to provide an 

identifiable, material benefit to the estate at the time those 

services were performed (or contributed to the administration of 

the estate); and (2) courts may consider all other relevant equitable 

factors, as stated in § 330(a)(3), including as one of those factors, 

when appropriate, whether a professional service contributes to a 

successful outcome. 

Our opinion today does not require a bankruptcy court to award fees for 

any service that can be characterized as reasonable as of the time it was 

performed, as the bankruptcy courts remain restricted by the terms of § 330, 

which require compensable services to be both “actual” and “necessary.” 11 

U.S.C. § 330(a)(1)(A). Thus, a bankruptcy court evaluating the prospective 

reasonableness of an attorney’s litigation strategy should consider whether the 

services were targeted to obtain an identifiable, material benefit. An 

identifiable benefit distinguishes an actual benefit from a speculative one, and 

a material benefit distinguishes a necessary benefit from an irrelevant one. 

Because I read Judge Prado’s writing to endorse these views, I am 

pleased to concur in his fine opinion.

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