MEMORANDUM OPINION AND ORDER

Robert D. Berger, United States Bankruptcy Judge.

The debtors in these jointly-administered Chapter 11 cases are The Revocable Trust of John Q. Hammons dated December 28, 1989, as Amended and Restated (the "Trust") and a number of its subsidiaries and affiliates. In 2016, the Trust employed UBS Securities LLC as Debtors' financial advisor pursuant to 11 U.S.C. § 328. This matter now comes before the Court on UBS's application for fees and expenses.1 Creditor JD Holdings, L.L.C., which is obligated under Debtors' confirmed joint Chapter 11 plans to pay those fees and expenses to the extent awarded by the Court,2 opposes UBS's application and moves for a scheduling order, arguing that the application cannot be resolved without discovery and/or summary judgment. For the reasons set forth in this order, UBS's fee application will be granted in part and denied in part, and JD Holdings' motion for scheduling order will be denied.

A. Procedure

As an initial matter, this order must address a procedural issue raised by JD Holdings. JD Holdings is correct that its objection to UBS's fee application creates a contested matter governed by Fed. R. Bankr. P. 9014.3 However, JD Holdings continues:

JD Holdings' argument fails because contested matters are raised by motion, see Fed. R. Bankr. P. 9014(a), and a motion is not a "pleading" as that term is used in the federal rules. See Sunlight Saunas, Inc. v. Sundance Sauna, Inc., 427 F.Supp.2d 1022, 1029 (D. Kan. 2006). Compare Fed. R. Bankr. P. 7007(a) ("Pleadings") with Fed. R. Bankr. P. 7007(b) ("Motions and Other Papers"). Thus, the rule for judgment on the pleadings does not apply to this motion because that rule, by definition of a "pleading," does not apply to any motion. Under JD Holdings' interpretation of Rule 9014, every motion to which a party in interest has objected would require up to four months of discovery and a separate motion for summary judgment in order for the bankruptcy court to rule—an absurd result.

The better interpretation is this: Rule 9014(a) mandates "reasonable notice and an opportunity for hearing" in a contested matter, both of which have occurred here. Because application of the rules listed in Rule 9014(c), including Rule 7056, is discretionary, no more is necessarily required. See Fed. R. Bankr. P. 9014(c) ("Except as otherwise provided in this rule, and unless the court directs otherwise, the following rules shall apply....") (emphasis added). If this Court can permissibly rule on UBS's fee application now, it will do so. Alternatively, if the fee application and objection thereto should be considered "pleadings," this Court has the discretion to direct that Rule 7012 shall apply to this matter. See Fed. R. Bankr. P. 9014(c) ("The court may at any stage in a particular matter direct that one or more of the other rules in Part VII shall apply."). Either way, a separate motion for summary judgment is unnecessary.

B. Factual Background

John Q. Hammons, a hotel developer, created the Trust in 1989. In 2005, Mr. Hammons and the Trust entered into an agreement with JD Holdings that granted JD Holdings a right of first refusal on the sale of Debtors' hotels (the "ROFR"). JD Holdings subsequently sued the Trust and other Debtors for breach of the ROFR in the Delaware Court of Chancery.

Debtors filed their Chapter 11 petitions on June 26, 2016. JD Holdings moved to dismiss the petitions or, in the alternative, for stay relief to pursue the Delaware litigation. This Court denied the motion, and JD Holdings appealed the order with the Tenth Circuit BAP. Meanwhile, Debtors rejected the ROFR and set out to sell their assets, including 35 hotels, under 11 U.S.C. § 363. JD Holdings appealed the order allowing rejection of the ROFR as well.

In September 2016, the Trust hired UBS to provide financial advisory services to Debtors in connection with their Chapter 11 bankruptcy. The letter agreement between the Trust and UBS (the "Agreement") entitles UBS to (inter alia ):

By order dated October 19, 2016 ("Approval Order"), this Court granted Debtors' application to employ UBS under § 328. The Approval Order provides, in relevant part:

Following entry of the Approval Order, UBS conducted "extensive and robust marketing efforts"5 on Debtors' behalf. However, Debtors' planned asset sale under § 363 stalled when they could not find a company willing to provide title insurance to a buyer pending resolution of JD Holdings' appeals. Although Debtors identified a possible supplemental insurance product from Concord Specialty Risk that might have solved the title insurance issue for potential buyers other than JD Holdings (whom Concord refused to insure because its appeals caused the need for supplemental insurance in the first place), Debtors had not reached an agreement with Concord when their exclusive period in which to file a plan of reorganization began to run out. Consequently, on December 20, 2017, Debtors filed a disclosure statement and proposed plan under which Debtors' assets would not be sold—and creditors would not be paid—until 270 days after JD Holdings' appeals had concluded, which Debtors predicted would take place sometime in the year 2020.

On January 30, 2018, this Court denied approval of Debtors' disclosure statement as not containing the "adequate information" required by 11 U.S.C. § 1125(b). The Court reasoned that Debtors' disclosure statement lacked adequate information because it (1) listed "as-improved" hotel values without accounting for the significant capital expenditures necessary to reach those values and (2) relied on overly-optimistic financial projections rather than Debtors' actual financial performance. The Court also denied approval of Debtors' disclosure statement because their proposed plan was patently unconfirmable under 11 U.S.C. § 1129. The Court reasoned that the plan was unconfirmable because it (1) was not feasible, as its success hinged on the outcome of Debtors' litigation with JD Holdings over the allowance of JD Holdings' claims; and (2) denied impaired creditors a vote in violation of § 1129(a)(8). The next day, the Court terminated Debtors' exclusivity period (which would otherwise have ended on February 26, 2018) and ordered Debtors and JD Holdings to return to mediation. Five days later, JD Holdings filed its own plans of reorganization, under which it would pay all "Allowed Claims" in exchange for all of Debtors' "Assets."

Following a successful mediation, Debtors and JD Holdings entered into a Plan Support Agreement ("PSA") under which, inter alia, Debtors agreed to support confirmation of JD Holdings' proposed plans. The PSA included a Settlement Agreement between Debtors and JD Holdings. This Court approved the PSA under Rule 9019 on February 28, 2018, approved JD Holdings' amended disclosure statement on March 23, 2018, and confirmed the Joint Plans on May 11, 2018. Debtors' counsel argued in favor of the PSA, the disclosure statement, and the Joint Plans at each relevant hearing.6 JD Holdings' counsel acknowledged Debtors' contributions at the March 23, 2018 disclosure statement hearing:

and again at the April 27, 2018 plan confirmation hearing:

The Tenth Circuit BAP described the Joint Plans' progress as of August 2018:

Although Debtors and JD Holdings have not yet closed on eight hotels subject to commercial mortgage-backed securities loans, JD Holdings is currently managing those hotels and making payments on the loans. All economic benefits from those hotels, and from all other assets whose transfer under the Joint Plans has been delayed by litigation (such as Debtors' interest in W & H Realty, LLC), are now flowing to JD Holdings.

JD Holdings' objection to UBS's fee application presents three issues. First, is UBS entitled to the fees and expenses it requests under the terms and conditions of the Agreement? Second, have those terms and conditions proved improvident under § 328? Third, does JD Holdings' objection merit discovery?

C. Entitlement to Fees and Expenses Under the Agreement

UBS requests payment of the following fees and expenses under the Agreement: (1) "Transaction Fees," consisting of a Restructuring Transaction Fee and a Sale Transaction Fee; (2) unpaid Monthly Advisory Fees, if any; and (3) unpaid expenses (including legal fees). JD Holdings argues that UBS should not be awarded the fees and expenses it requests because (1) UBS breached the Agreement's implied covenant of good faith and fair dealing and (2) UBS is not entitled to the fees and expenses under the language of the Agreement and Approval Order.

1. Implied Covenant of Good Faith and Fair Dealing

The Agreement is governed by New York law. "[T]here exists under New York law an implied covenant of good faith and fair dealing, pursuant to which neither party to a contract shall do anything which has the effect of destroying or injuring the right of the other party to receive the fruits of the contract." M/A-COM Sec. Corp. v. Galesi, 904 F.2d 134, 136 (2d Cir. 1990) (citing Kirke La Shelle Co. v. Paul Armstrong Co., 263 N.Y. 79, 188 N.E. 163, 167 (1933) ); see also EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 799 N.Y.S.2d 170, 832 N.E.2d 26, 33 (2005) (holding that plaintiff had failed to plead cause of action for breach of implied covenant where plaintiff had not adequately alleged that defendant injured plaintiff's "right to receive the benefits of their agreement") (citations omitted). This implied covenant "can only impose an obligation consistent with other mutually agreed upon terms in the contract. It does not add to the contract a substantive provision not included by the parties." George Town Assocs. S.A. v. Abakan, Inc., No. 15cv3435 (DLC), 2015 WL 4923040, at *9 (S.D.N.Y. Aug. 18, 2015). Where the contract in question was executed by sophisticated parties on both sides, "the courts should be extremely reluctant to interpret an agreement as impliedly stating something which the parties have neglected to specifically include." Rowe v. Great Atl. & Pac. Tea Co., 46 N.Y.2d 62, 412 N.Y.S.2d 827, 385 N.E.2d 566, 571-72 (1978) (observing that one party was "an experienced attorney and businessman knowledgeable in real estate transactions," and the other was "a national firm presumably represented by capable agents").

Breach of the implied covenant also requires "substantially more" than negligence or inept action. See Security Plans Inc. v. CUNA Mut. Ins. Soc'y, 769 F.3d 807, 817 (2d Cir. 2014) (citations omitted). Thus, "a party who asserts the existence of an implied-in-fact covenant bears a heavy burden," Rowe, 385 N.E.2d at 570, for "[t]he covenant will be breached only in a narrow range of cases," Security Plans, 769 F.3d at 817.

George Town Assocs., 2015 WL 4923040, at *9 (quoting M/A-COM, 904 F.2d at 136).

JD Holdings argues that UBS breached the implied covenant of good faith and fair dealing through its "apparent failure" to "address or avoid" the title insurance issue pending the resolution of JD Holdings' own appeals. This argument is unavailing for a number of reasons. First, it fails to allege that UBS injured Debtors' right to receive the benefits of the Agreement. Specifically, JD Holdings fails to identify any benefit of the Agreement that Debtors didn't receive;10 in fact, JD Holdings fails to allege that Debtors suffered any damages at all as a result of UBS's alleged breach.11 Cf. EBC I, 799 N.Y.S.2d 170, 832 N.E.2d at 33; see also Canzona v. Atanasio, 118 A.D.3d 841, 988 N.Y.S.2d 637, 639 (2014) (stating that damages are an essential element of a cause of action for breach of contract). Second, it adds to the Agreement a substantive provision —title insurance research and consulting —neither included by the parties nor required to effectuate the purposes of the Agreement. Cf. George Town Assocs., 2015 WL 4923040, at *9. Because UBS and the Trust are sophisticated parties represented by highly competent counsel, this Court is particularly reluctant to interpret the Agreement as impliedly stating a requirement that the parties did not specifically include. Cf. Rowe, 412 N.Y.S.2d 827, 385 N.E.2d at 571-72. Third, it alleges (at most) negligence or inept action on the part of UBS, which does not state a claim for breach of the implied covenant as a matter of New York law. Cf. Security Plans, 769 F.3d at 817. In short, the implied covenant of good faith and fair dealing that exists in the Agreement under New York law cannot prevent an award of fees and expenses to UBS here.

2. Transaction Fees

UBS requests payment of a Restructuring Transaction Fee and a Sale Transaction Fee. Under the terms of the Agreement, those fees are due upon "consummation" of a Restructuring Transaction and a Sale Transaction, respectively. The Agreement defines "Restructuring Transaction" and "Sale Transaction":

JD Holdings opposes both fees. First, JD Holdings argues that no Restructuring Transaction has occurred because the restructuring of Debtors' liabilities under the Joint Plans was not "effected directly or indirectly" by the Trust. This argument fails because the Trust did effect a restructuring of Debtors' liabilities through its execution of the Settlement Agreement and PSA, its cooperation with JD Holdings, and its support of the Joint Plans, as previously acknowledged by counsel for JD Holdings.12

Next, JD Holdings argues that no Sale Transaction has occurred because there was no connection between the marketing conducted by UBS and the disposition of Debtors' assets under the Joint Plans. This argument fails because a plain reading of the Agreement's definition of "Sale Transaction" does not require any causal connection between marketing and disposition; rather, it requires simply marketing and disposition, both of which have occurred. UBS and the Trust, both sophisticated parties represented by highly competent counsel, could have defined "Sale Transaction" to require a causal connection between the two. They did not. This Court will not do so after the fact. Cf. In re River Road Hotel Partners, LLC, 520 B.R. 691, 703 (Bankr. N.D. Ill. 2014) ("If [attorneys] wanted the Restructuring Fee to be expressly contingent on the results of [financial advisor's] efforts or on the confirmation of a debtor-sponsored plan, there are ways they could have drafted the Retention Order to accomplish that goal."); In re Borders Group, Inc., No. 11-10614 (MG), 2011 WL 6026158, at *5 (Bankr. S.D.N.Y. Dec. 5, 2011) ("[I]f [debtors' financial advisor] was only to receive a restructuring or liquidation fee following a sale resulting from [the financial advisor's] successful efforts, it could have and should have been clearly stated in the Engagement Letter and any retention order.").

The Court also rejects JD Holdings' argument that the Approval Order's use of the term "success fee" introduces a causal-connection requirement into the term "Sale Transaction." The Approval Order states: "The Debtors are authorized to pay all fees and expenses of UBS on the terms and conditions of [the Agreement], including but not limited to payment of any success fee from the proceeds of asset sales, restructuring or any financing transaction, as applicable" (emphasis added). That language entitles UBS to all fees and expenses under the terms and conditions of the Agreement regardless of what a "success fee" might be.13 Because UBS is entitled to all fees and expenses under the Agreement regardless of what "success fee" means, the Approval Order's use of the ambiguous term "success fee" does not limit, or introduce any ambiguity into, the term "Sale Transaction."14

JD Holdings argues that "Sale Transaction" must be interpreted in light of parol evidence showing what the parties intended that term to mean. However, since JD Holdings concedes that the term is itself unambiguous,15 it is unnecessary and, in fact, impermissible, to consult parol evidence —such as court transcripts and earlier drafts of the Agreement—as to whether that term contains a causal-connection requirement. See Schron v. Troutman Sanders LLP, 20 N.Y.3d 430, 963 N.Y.S.2d 613, 986 N.E.2d 430, 436 (2013) ("Parol evidence —evidence outside the four corners of the document—is admissible only if a court finds an ambiguity in the contract."); Hoeg Corp. v. Peebles Corp., 153 A.D.3d 607, 60 N.Y.S.3d 259, 261 (2017) ("[T]he court should determine the intent of the parties from within the four corners of the contract without looking to extrinsic evidence to create ambiguities.") (citations omitted). The plain meaning of "Sale Transaction" as defined in the Agreement contains no such requirement. This Court's inquiry ends there.

Finally, JD Holdings argues that neither a Restructuring Transaction nor a Sale Transaction will be "consummated" until the Joint Plans are "fully executed." However, the Joint Plans extinguish Debtors' liabilities and transfer liability for all Allowed Claims to JD Holdings. A Restructuring Transaction was thus consummated on May 17, 2018, when the Joint Plans became effective. Furthermore, the Joint Plans transferred an immediate equitable interest in all of Debtors' assets16 to JD Holdings; the economic benefits from all assets, even those to which JD Holdings does not yet have legal title, are flowing to JD Holdings under the Joint Plans. In consideration for those assets, JD Holdings has assumed liability for all Allowed Claims. Whether JD Holdings has yet to pay some creditors is beside the point; the transfer of consideration from JD Holdings to Debtors, in the form of assumption of liability, is complete. Under these circumstances, a Sale Transaction was also consummated on May 17, 2018.

Because the Agreement provides that UBS is entitled to a Restructuring Transaction Fee of $ 7,000,000 upon consummation of a Restructuring Transaction, UBS will be awarded $ 7,000,000 as a Restructuring Transaction Fee. Calculation of the Sale Transaction Fee, which employs a sliding, percentage-based schedule, is not so simple:

Neither party has used Annex A of the Agreement to calculate a Sale Transaction Value. UBS argues that its Sale Transaction Fee should be calculated using an "implied" Sale Transaction Value of $ 1.2 billion. The Court declines to adopt this value for two reasons: (a) the $ 1.2 billion figure, which includes over $ 150 million in disputed claims, estimated amounts, and general reserve, is obviously inaccurate; and (b) Annex A states precisely how the Sale Transaction Value is to be calculated.17 Therefore, although UBS will be awarded a Sale Transaction Fee, this portion of UBS's fee application will remain under advisement. The parties must first come to an agreement as to (a) a Sale Transaction Value, calculated pursuant to Annex A as of March 8, 2019; and (b) a Sale Transaction Fee based on that amount, with any disputes to be resolved by this Court. These amounts may be recalculated after Debtors' remaining assets are sold, bearing in mind that all transactions shall be considered part of a single Sale Transaction18 in calculating the Sale Transaction Fee. Per the Agreement, this Fee shall be offset dollar-for-dollar by the Restructuring Transaction Fee and by 50% of any Monthly Advisory Fees paid to UBS in excess of $ 1,050,000.

3. Monthly Advisory Fees

The Agreement provides for a "Monthly Advisory Fee" of $ 175,000 to UBS. In its objection, JD Holdings alleges that UBS has performed no services for months. However, at oral argument, UBS's attorney represented that UBS did perform work for Debtors under the Agreement each month through confirmation of the Joint Plans. The Agreement, which excuses UBS from timekeeping, requires nothing more. To the extent unpaid, UBS is hereby awarded Monthly Advisory Fees of $ 175,000 per month through May 11, 2018.

4. Expenses (Including Legal Fees)

a. Service Expenses

Section 2 of the Agreement provides that UBS shall be reimbursed "for all reasonable expenses incurred by UBS in entering into and performing services pursuant to this Agreement, including the reasonable fees, disbursements, and other charges of UBS's legal counsel" ("Service Expenses"). JD Holdings argues that UBS should not be awarded its claimed Service Expenses yet because UBS has not shown that those Service Expenses were reasonable. UBS responds that, as observed by this Court, approval of an agreement under § 328 is incompatible with a subsequent review for reasonableness under 11 U.S.C. § 330. This observation does not support UBS's position, however, because JD Holdings does not seek to review the Service Expenses for reasonableness under § 330. Rather, JD Holdings seeks to review the Service Expenses for reasonableness under the Agreement itself, which imposes a standard independent of § 330:

Thus, JD Holdings is correct that UBS must show that its Service Expenses are reasonable—not under § 330, but under the Agreement itself.19 While UBS will be awarded Service Expenses, UBS has not yet made such a showing. Therefore, this portion of UBS's fee application will remain under advisement pending a demonstration of reasonableness to JD Holdings, with any disputes to be resolved by this Court.

b. Fee Defense Expenses

Section 9 of the Agreement provides that UBS shall be entitled to "any costs and expenses incurred by UBS after the Termination Date to enforce its rights hereunder" ("Fee Defense Expenses"). UBS thus asks for an award of Fee Defense Expenses, arguing that (1) UBS is entitled to reimbursement of such expenses under the Agreement, and (2) the Court approved the Agreement as "reasonable" under § 328, such that (3) those expenses may not now be reviewed for reasonableness under § 330.

However, § 330—the mechanism by which this Court may award compensation to UBS—requires more than a determination that a professional's compensation is "reasonable"; it also limits reasonable compensation to that which is for "actual, necessary services rendered" by the professional. As used in § 330, "services rendered" does not include "[t]ime spent litigating a fee application against the administrator of a bankruptcy estate." See Baker Botts L.L.P. v. ASARCO LLC, ___ U.S. ___, 135 S.Ct. 2158, 2165, 192 L.Ed.2d 208 (2015). This limitation means that § 330 "does not authorize the award of fees for defending a fee application." Id. at 2169.

In response, UBS cites In re Hungry Horse, LLC, 574 B.R. 740 (Bankr. D.N.M. 2017), which held that that Baker Botts does not prevent a court from approving a fee-defense provision as "reasonable" under § 328. Hungry Horse, 574 B.R. at 747. Hungry Horse reasoned that Baker Botts "was not focused on whether the fee charged was `reasonable,' but instead on whether the fee was for `services' rendered to the estate." Id. at 744. The court continued: "If employment terms and conditions are approved by a bankruptcy court under § 328(a), then the professional's compensation is governed by those terms and conditions, rather than the general `reasonable compensation for services rendered' language of § 330(a)(1)(A)." Id. at 746.

This Court agrees that Baker Botts is about "services rendered" under § 330 rather than what is "reasonable" under § 328.20 The Court also agrees that once terms and conditions of employment are approved as reasonable pursuant to § 328, a party cannot later challenge those terms and conditions as unreasonable under § 330. However, the Court respectfully disagrees with the Hungry Horse position that approval of a professional's terms and conditions of employment as "reasonable" under § 328 governs whether the professional "rendered services" to the estate under § 330.21

Section 328 provides a mechanism by which parties and the court may decide ex ante what is "reasonable" for purposes of § 330. However, whether "services" were "rendered" for purposes of § 330 is one that must necessarily be made ex post. Both logic and language dictate this conclusion. Logically, if the determination were not made ex post, then a professional employed under § 328 could be entitled to payment under § 330 for doing nothing at all, or despite a material breach of the underlying employment agreement. Put differently, while § 328 examines the substance of a professional's terms and conditions of employment, it says nothing about whether the professional complied with those terms and conditions. Linguistically, because "rendered" is in the past tense, one can—by definition—only determine whether that condition is met after the fact.22 For these reasons, the Court concludes that a determination that the terms and conditions of an agreement are "reasonable" under § 328 does not determine whether services were rendered pursuant to that agreement under § 330. Because Baker Botts holds that fee-defense work is not "services rendered" under § 330, UBS will not be awarded its Fee Defense Expenses incurred in defending its fee application against JD Holdings' objection.23

D. "Improvidence" under § 328

Section 328(a) authorizes employment of a professional person on any "reasonable" terms and conditions. If a court approves terms and conditions as reasonable, though, § 328(a) provides that

This language "creates a `high hurdle' for a movant seeking to revise the terms governing a professional's compensation ex post facto." ASARCO, L.L.C. v. Barclays Capital, Inc. (In re ASARCO), 702 F.3d 250, 258 (5th Cir. 2012). It means that the developments must have been "incapable of anticipation, not merely unanticipated." See id. (quoting In re Barron, 325 F.3d 690, 693 (5th Cir. 2003)); see also 3 Collier on Bankruptcy ¶ 328.01 (Richard Levin & Henry J. Sommer eds., 16th ed.) ("After the approval of the professional's employment and terms and conditions thereunder, the only way to modify an approved employment is for the bankruptcy court to determine that what developed in the case could not have been anticipated at the time of approval."). "Fee arrangements approved under § 328(a) may not be cast aside merely because the fee appears excessive in hindsight at the end of the case." ASARCO, 702 F.3d at 259. "There is wide agreement that unanticipated events are not grounds for revisiting a pre-approved fee award." In re Smart World Techs., 383 B.R. 869, 877 (S.D.N.Y. 2008), aff'd, 552 F.3d 228 (2d Cir. 2009).

Here, JD Holdings argues that the terms and conditions of the Agreement are improvident under § 328 in light of three developments: (1) the title insurance issue; (2) UBS's alleged breach of its professional duties; and (3) an alleged lack of causal connection between the work performed by UBS and the disposition of Debtors' assets and liabilities under the Joint Plans.

First, JD Holdings argues that the title insurance issue was not capable of anticipation when UBS and the Trust entered into the Agreement. However, as UBS correctly points out, the title insurance issue is a red herring. That issue did not cause UBS to earn fees without a § 363 sale. Rather, UBS earned fees without a § 363 sale because of Debtors' settlement with JD Holdings and the sale of Debtors' assets under the Joint Plans.

Settlement was clearly contemplated by the Agreement, which includes "a comprehensive settlement arrangement, including with respect to any material litigation," as a method of effecting a Restructuring Transaction. Thus, settlement was not only capable of anticipation, it was actually anticipated. As for the sale of Debtors' assets through the Joint Plans, liquidating plans are contemplated by the Bankruptcy Code itself. See 11 U.S.C. § 1141(d)(3)(A) (addressing debtor discharge where "the plan provides for the liquidation of all or substantially all of the property of the estate"). And, while the Joint Plans are a creditor plan, JD Holdings' own objection—which argues that "[t]he submission and confirmation of a creditor plan in a Chapter 11 proceeding is uncommon "—implicitly acknowledges that creditor plans are sometimes confirmed. Under these circumstances, settlement and the sale of Debtors' assets through a creditor plan were clearly capable of anticipation. Even if UBS and the Trust did not actually anticipate those developments when they executed the Agreement, that lack of anticipation does not establish grounds for disturbing UBS's pre-approved fee award. See Smart World, 383 B.R. at 877.

Second, JD Holdings alleges that UBS had a professional duty to anticipate and address the title insurance issue, and that UBS's failure to satisfy that alleged duty was a development not capable of anticipation. However, the Agreement itself addresses UBS's liability to the Trust in the event UBS did not meet its professional obligations, providing that UBS would be liable only for "gross negligence or willful misconduct ... in performing the services that are the subject of the Agreement." Because the Agreement itself anticipates UBS's alleged failure to meet its professional obligations, JD Holdings' argument that UBS's alleged failure was incapable of anticipation at the time UBS and the Trust entered into the Agreement must fail.24

Third, JD Holdings argues that it could not be anticipated that UBS might be awarded fees under the Agreement absent a causal connection between the work performed by UBS and the disposition of Debtors' assets and liabilities. This argument fails because it conflates the relevant "developments" analyzed under § 328 (here, Debtors' settlement with JD Holdings and the sale of Debtors' assets through the Joint Plans) with the outcome of those developments (an award of fees to UBS). Because this argument does not identify any relevant "developments," it is—along with UBS's argument that a fee award would be "unfair and inequitable" under the circumstances—essentially an impermissible argument as to the reasonableness of UBS's fees. Cf. In re River Road Hotel Partners, LLC, 536 B.R. 228, 239 (Bankr. N.D. Ill. 2015) ("[Transferee's] claims that [financial advisor's] work did not benefit the Debtors' bankruptcy estates or contribute value to the success of the chapter 11 case are not appropriately considered in a prospective analysis under § 328(a).").

In short, JD Holdings has not presented a viable argument that any developments rendered the terms and conditions of the Agreement "improvident" for purposes of § 328(a). Thus, the Court will not disturb UBS's fee award.

E. Discovery

JD Holdings argues that this Court should not rule on UBS's fee application without discovery. However, Fed. R. Civ. P. 26(b)(1) limits discovery to that which is "relevant to any party's claim or defense and proportional to the needs of the case." Fed. R. Evid. 401(b), in turn, limits "relevant" evidence to facts that are "of consequence in determining the action." Here, because each of JD Holdings' theories fails as a matter of law, no facts JD Holdings might discover would be of consequence to its objection. JD Holdings is not entitled to search the records of Debtors and UBS in order to develop new avenues of objection to UBS's fee application. Cf. Cuomo v. Clearing House Ass'n, 557 U.S. 519, 531, 129 S.Ct. 2710, 174 L.Ed.2d 464 (2009) ("Judges are trusted to prevent `fishing expeditions' or an undirected rummaging through bank books and records for evidence of some unknown wrongdoing."). Under these circumstances, Fed. R. Civ. P. 26(b)(1) does not require discovery.

While JD Holdings argues that the terms of § 328 "necessarily entail[ ] a factual inquiry that cannot be conducted without discovery," the Court disagrees. All parties to this contested matter are aware of the relevant "developments" for purposes of § 328: Debtors' comprehensive settlement with JD Holdings and the confirmation of a creditor plan. Discovery could only ever answer the wrong question: whether anyone actually anticipated those developments. The right question— whether those developments were capable of anticipation—has already been answered in the affirmative here. No more is required.

F. Conclusion

JD Holdings' motion for scheduling order is hereby denied.

UBS's fee application is hereby granted in part and denied in part as follows:

IT IS SO ORDERED.