The Examiner's Authority

¶On January 16, 2009, the United States Bankruptcy Court for the Southern District of New York entered an order directing the U.S. Trustee to nominate an Examiner, and outlining the subject matter of the Examiner's investigation (the "Examiner Order").100 The Examiner Order lists ten bulleted topics that the Examiner was to investigate and, further, mandates that the "Examiner shall perform the duties specified in sections 1106(a)(3) and (4) of the Bankruptcy Code [unless otherwise ordered.]"101 Under 11 U.S.C. § 1106(a)(3), the Examiner is to "investigate the acts, conduct, assets, liabilities, and financial condition of the debtor, the operation of the debtor's business and the desirability of the continuance of such business, and any other matter relevant to the case or to the formulation of a plan [unless ordered otherwise.]" Under 11 U.S.C. § 1106(a)(4), the Examiner must, inter alia, "file a statement of any investigation conducted . . . including any fact ascertained pertaining to fraud, dishonesty, incompetence, misconduct, mismanagement, or irregularity in the management of the affairs of the debtor, or to a cause of action available to the estate[.]"

¶On January 19, 2009, the U.S. Trustee appointed Anton R. Valukas as Examiner.¹⁰²¹⁰² Notice of Appointment of Examiner, Docket No. 2570, In re Lehman Brothers Holdings Inc.,Case No. 08‐ 13555 (Bankr. S.D.N.Y. Jan. 19, 2009). The Court approved the appointment on January 20, 2009.¹⁰³¹⁰³ Order Approving Appointment of Examiner, Docket No. 2583, In re Lehman Brothers Holdings Inc., Case No. 08‐13555 (Bankr. S.D.N.Y. Jan. 20, 2009). On February 11, 2009, the Court approved the Examiner's request to employ Jenner & Block LLP as counsel and provided the Examiner with authority to issue subpoenas under Fed. R. Bankr. P. 2004.¹⁰⁴¹⁰⁴ Order Authorizing the Examiner to Retain and Employ Jenner & Block LLP as His Counsel Nunc Pro Tunc as of January 19, 2009, Docket No. 2803, In re Lehman Brothers Holdings Inc., Case No. 08‐13555 (Bankr. S.D.N.Y. Feb. 11, 2009); and Order Granting Examiner's Motion Directing the Production of Documents and Authorizing the Examinations of the Debtors' Current and Former Officers, Directors and Employees, and Other Persons and Entities, Docket No. 2804, In re Lehman Brothers Holdings Inc., Case No. 08‐13555 (Bankr. S.D.N.Y. Feb. 11, 2009).Show full note On February 17, 2009, the Court approved the Examiner's Preliminary Work Plan.¹⁰⁵¹⁰⁵ Order Approving the Preliminary Work Plan of Anton R. Valukas, Examiner, Docket No. 2855, In re Lehman Brothers Holdings Inc., Case No. 08‐13555 (Bankr. S.D.N.Y. Feb. 17, 2009). On February 25, 2009, the Court authorized the Examiner to employ Duff & Phelps, LLC as his financial advisors.¹⁰⁶¹⁰⁶ Order Authorizing the Examiner to Retain and Employ Duff & Phelps LLC as His Financial Advisors Nunc Pro Tunc as of February 6, 2009, Docket No. 2924, In re Lehman Brothers Holdings Inc., Case No. 08‐ 13555 (Bankr. S.D.N.Y. Feb. 17, 2009).

¶Despite the complexity of Lehman's bankruptcy and the broad scope of the Examiner's investigation, the time available for the examination was limited by the practical needs of the bankruptcy proceeding. The Examiner initially targeted the week of February 1, 2010 to submit his report to the Court in order to assure that the report would be available prior to the March 15, 2010 deadline of the Debtors' exclusivity period to propose a plan of reorganization.¹⁰⁷¹⁰⁷ Order Granting Debtors' Motion, Pursuant to Section 1121(d) of the Bankruptcy Code, Requesting Second Extension of Exclusive Periods for the Filing of and Solicitation of Acceptances for Chapter 11 Plans, Docket No. 4449, In re Lehman Brothers Holdings Inc., Case No. 08‐13555 (Bankr. S.D.N.Y. July 20, 2009). Even though the Debtors have suggested that they may not file a plan by that date, the Examiner determined that all parties would be better served if he adhered to his self‐imposed February 2010 schedule.