In re Cook Inlet Energy, LLC
In re Cook Inlet Energy, LLC
Opinion of the Court
MEMORANDUM ON APPLICATION OF SCOTT M. BORUFF FOR ADMINISTRATIVE EXPENSE CLAIM (ECF No. 591)
Scott M. Boruff has filed an Application for Administrative Expense Claim (“Application”)(ECF No, 591), in which he seeks to recover the sum of $252,657.53, representing the prorated portion of his contractual salary as executive chairman for Miller Energy Resources, Inc. (“MER”) for the four month period between the filing of MER’s chapter 11 petition and plan confirmation. Having considered the testimony of the witnesses and the documentary evidence presented at the evidentiary hearing held May 17, 2017, and for the reasons stated below, the court shall award Boruff the sum of $15,000.00 as an administrative expense under 11 U.S.C. § 503(b)(1)(A). The court finds that Boruff has not proven the reasonable value of his post-petition services in excess of what other directors on the MER board were paid for their post-petition services.
I. Procedural History.
An involuntary chapter 11 petition was filed against Cook Inlet Energy, LLC (“CIE”), a subsidiary of MER, on August 6, 2015. CIE filed an answer and consent to entry of an order for relief under chapter 11 on. October 1, 2015, the same day that MER and several of its other subsidiaries filed their own chapter 11 petitions.
. MER’s history, and the events that lead it and its subsidiaries to seek chapter 11 relief, are detailed in the Disclosure Statement to Accompany Joint Plan of Reorganization of [MER] and its Debtor Subsidiaries Under Chapter 11 of the Bankruptcy Code.
Boruff was part of MER’s senior management group.
Four days after entering bankruptcy, the Debtors filed their Notice of Debtors’ Plan Term Sheet detailing the terms on which they would propose their joint plan of reorganization funded by the Lenders.
The hearing on plan confirmation was held on January 27, 2016. The Order Confirming Joint Plan of Reorganization of [MER] and Certain of its Subsidiaries Under Chapter 11 of the Bankruptcy Code was entered the same day.
II. Boruffs History with MER.
Boruff was hired by MER in August 2008 as its chief executive officer.
Contemporaneously with Giesler’s hiring, Boruff entered into a new employment agreement with MER, under which he would serve as its executive chairman.
(i) to oversee, manage and direct the Company’s future development of its current business plan and model and to develop potential future-areas of business, (ii) to oversee, manage and direct the Company’s mergers and acquisitions of new areas of the company’s business, and (iii) subject to terms of this Agreement, any other duties as may reasonably be assigned or delegated to him from time to time by the Board of Directors.
Notwithstanding the foregoing, [Bo-ruff] shall be principally responsible for and shall have full power and authority to perform all duties incidental to the general management and oversight of the Company’s future development plans, and mergers and acquisitions.28
Boruff described his role as a working chairman and member of management.
Before MER’s bankruptcy was filed, Bo-ruff was receiving an annual salary of $795,000, or $66,250 per month,
After the precipitous drop in oil prices in late 2014, Boruff said MER spent the next six months trying to “lean up.”
At the September 23, 2015, special meeting of MER’s board of directors, over which Mr. Boruff presided, the board discussed the establishment 'of a Restructuring Committee to solicit offers to purchase MER or its assets, even post-bankruptcy or while pursuing the Lender’s plan to purchase the company.
authorization to file the Chapter 11 case, the approval of the DIP loan, the approval of the plan term sheet and the approval of the formation of a Restructuring Committee. It was noted for the record that [SGS] worked hard to find alternatives, but potential interested parties believe the value runs out before the Second Lien Debt is even repaid. It was also noted that [SGS] will continue their efforts to find other alternatives and will report weekly to the Restructuring Committee on their efforts.46
The Restructuring Committee initially excluded Boruff and was comprised solely of Giesler, as MER’s CEO, and the independent members of the MER Board.
III. Boruffs Post-petition Services.
Boruff received his salary and benefits up to MER’s bankruptcy petition, but did not receive any post-petition compensation.
Boruff believes that he first learned that MER would not-pay his salary from one of MER’s investors.
Boruff points out that no one ever instructed him to stop working.
The parties admitted into evidence cell phone records Boruff produced in discovery in an effort to detail his post-petition efforts. The records reflect that post-petition, 38 minutes of his time was expended on phone calls with Brooks Range, 2 hours and 7 minutes of phone time to John Nix, and no phone time was logged for calls to Great Bear or Hilcorp.
Boruff was added to MER’s Restructuring Committee on October 29, 2015 by the MER board.
A review of the January 26, 2016 score card reflects that SGS was working with Hilcorp, Brooks Range, and Great Bear— three of the four entities Boruff specifically identified as interested parties.
Boruff did preside over three post-petition special meetings of the MER board, held on October 29, 2015, November 16, 2015, and January 26, 2015,
Boruff contends he is entitled to recover $252,657.53, which is the pro-rated amount of salary he would have received under his employment contract post-petition through the date of plan confirmation, as an administrative expense.
Analysis
Boruff has established that he is due $252,667.53 under his employment contract with MER for four post-petition months’ salary that remain unpaid. MER does not deny the salary is owed to Boruff but contends that because it rejected Boruffs employment contract the postpetition salary is part of his general, unsecured claim entitled to pro-rata distribution with the other allowed unsecured claims,
Section 503(b)(1)(A) defines administrative expenses to include, “the actual, necessary costs and expenses of preserving the estate including.. .wages, salaries, and commissions for services rendered after the commencement of the case.”
Boruff, as the party seeking administrative priority, bears the burden of proving his claim by a preponderance of the evidence.
Section 503(b)(1)(A) expressly includes post-petition wages and salary as actual and necessary costs of the estate. Given the plain language of the statute, therefore, Boruffs postpetition salary constitutes an actual and necessary expense of the bankruptcy estate for purposes of establishing an administrative expense. The more problematic question concerns the fairness and reasonableness of the claim.
Boruff contends he has met his burden of proving the reasonable value of his services simply by virtue of his employment contract. He maintains that his employment contract presumptively establishes the reasonable value of his services. Courts have long looked to contracts as evidence of reasonable value for purposes of determining administrative expenses.
Boruff asserts his situation is substantially similar to that of the administrative claimant in In re Bryant Universal Roofing, Inc.
If the debtor-in-possession elects to continue to receive benefits from the other party to an executory contract pending [a] decision! ] to reject or assume the contract, the debtor-in-possession is obligated to pay for the reasonable value of those services, ... which, depending on the circumstances of a particular contract, may be what is specified in the contract.116
The Mullís court opted to use the salary-set by the prepetition employment contract rate as a “persuasive but not binding guide to a determination of the appropriate amount of [his] claim.”
MER asserts this case presents a situation more similar to the one found in In re Health Diagnostic Laboratory, Inc.
Both Bryant Roofing and Health Diagnostic Laboratory stand for the unremarkable proposition that determination of the reasonable value of an executive’s post-petition services to the estate for purposes of establishing an administrative expense claim remains a question of fact. Both Bryant Roofing and Health Diagnostic’ Laboratory establish that calculation of an administrative expense claim based on a rejected employment contract requires a comprehensive evaluation of the post-petition services provided by the claimant within the context of establishing a reasonable value for the services actually performed, where the contract remains a persuasive starting point.
Turning to the facts presented, Boruff seeks to use his pre-petition employment contract as the basis for his administrative expense claim. Boruff served as CEO of MER from 2008 until 2014 when he resigned to become executive chairman. While it is unclear exactly what the change from CEO to executive chairman meant substantively, Boruff s compensation remained the same. No evidence was presented to explain or justify compensation of the executive chairman at the same salary he received as CEO—and only $5,000 less than what was being paid to the incoming CEO.
Approximately one year later, MER filed for bankruptcy. As executive chairman of MER, Boruff appears to have had no administrative, managerial, or operational responsibilities, either pre-petition or while in bankruptcy. Rather, he was responsible for future development. Upon filing its bankruptcy, MER had already authorized a plan term sheet with the Lenders detailing the terms under which the Lenders would purchase the Debtor.
Boruff argues that after the bankruptcy filing he continued the same work he had undertaken pre-petition. He testified that he worked “day in, day out trying to get somebody to buy [MER] assets.” Yet, it is unclear how much time Boruff actually spent on such efforts postpetition. The court accepts that Boruff spent more time than the roughly 3.5 hours reflected in MER Exhibit 23. However, there was no other evidence to establish how much time he actually spent on the post-petition efforts to find new financing or a buyer for MER or its assets. The court finds Bo-ruffs statement that he worked “day in, day out” on such efforts to be neither credible nor helpful.
Although the court is troubled by the inability to ascertain exactly what work Boruff provided post-petition, it is left with the firm conviction such services did not provide $252,657.53 in reasonable value to the estate. Rather, the court concludes that MER has rebutted any presumption that the pre-petition employment contract states the reasonable value of Boruffs post-petition services. Boruff argues that his efforts to find financing or a new buyer justify payment of his post-petition salary. Even prior to MER’s bankruptcy filing, the company had charged SGS with finding new financing or a buyer. This was a material development as MER excluded Boruff from the Restructuring Committee created upon the bankruptcy filing. He was excluded from the committee for the first month of the bankruptcy, further evidencing that MER did not require Boruff to locate financing or a new buyer. Although Boruff joined the Restructuring Committee in November 2015, by this time he was aware that MER was no longer paying his salary. More importantly, the prospective buyers Boruff says he dealt with postpetition were already known to MER and SGS. The weekly reports prepared by SGS indicated that it, rather than Boruff, was the one having detailed and significant discussions with these prospective purchasers.
Despite these efforts, even SGS was unable to procure a post-petition offer. This is not to suggest that either Boruff or SGS had to bring binding offers to the table to receive an administrative expense claim. But, the failure to procure a binding post-petition offer further exacerbates the court’s inability to determine what Boruff did post-petition or evaluate the reasonable value of such services. Instead, the only evidence presented establishes that he spent minimal time duplicating the investment banker’s attempts to procure bids that were never forthcoming from the same potential suitors that refused to enter into purchase agreements prepetition.
The court does not agree with MER that Boruffs post-petition efforts to find a buyer provided no benefit to the estate. MER maintains that it did not ask, or expect, Boruff to continue to seek potential purchasers post-petition, but it never terminated his services or even directly instructed him to cease his efforts. MER effectively sidelined Boruff by retaining SGS and excluding him from the Restructuring Committee. Yet, MER continued to employ Boruff as its executive chairman post-petition. Those services provided some value to the estate. MER cannot complain that Boruff attempted to do his job as he saw it and without instruction.
The problem remains, however, that while those services provided some actual benefit to the estate, Boruffs salary has no relation to that benefit, and Boruff has not provided the court with any other evidence to define or value his post-petition services. MER has presented Giesler’s testimony that post-petition the company treated Boruff as a director rather than an active member of management. Such a view aligns with the reality of Boruffs relationship with MER post-petition which centered upon his participation in the board of directors meetings and ultimately the Restructuring Committee meetings. Although Boruff asks the court to credit and value his communications with potential purchasers and investors, such services were never detailed or valued sufficiently for the court to determine any reasonable value. The evidence demonstrates that three other directors attending similar post-petition meetings were compensated between $14,000-$15,000. The court will award Boruff $15,000 for his postpetition services as a director of MER.
Conclusion
Boruff seeks allowance of an administrative expense claim, under § 503(b)(1)(A), in the sum of $252,657.53, for postpetition services he provided to MER. He calculated this claim by simply prorating his contractual annual salary rate of $795,000 from the date the petition was filed to the date of plan confirmation, a period of roughly four months. The court finds that MER has rebutted any presumption that the contract establishes the reasonable value of Boruffs post-petition services. Boruff has failed to establish that the services he provided post-petition had a reasonable value of $252,657.53. His efforts to find potential buyers for MER’s assets were ill-defined, not productive, and duplicated those of SGS, who had been retained by MER to perform the same function, but on a much broader scale. Boruff will be awarded an administrative expense claim of $15,000,00 for his post-petition services as a member of MER’s board of directors and its Restructuring Committee.
. ECF No. 51.
. ECF No. 101.
. ECFNo. 365.
. Id. at 22.
. Id.
. Id. at 30.
. Discl. Statement, ECF No. 365 at 27, 30. MER had both payment and non-payment defaults. It failed to make a $5.8 million quarterly interest payment due under the credit agreement. Non-payment defaults included a breach of a covenant in the credit agreement, in that MER’s accounts payable more than 90 days past due exceeded $5 million. Another event of default occurred on August 6, 2015, when the SEC issued an order instituting an administrative proceeding against MER and certain of its officers. Id. at 30. The filing of the involuntary petition against CIE, without dismissal, was yet another event of default under the credit agreement. Id. at 31.
. Id. at 31.
. id.
. ECFNo. 271.
. Discl. Statement, ECF No. 365 at 31.
. MER Ex. 24 (Oral Deposition of Scott M. Boruff), at 5:12-22; 12:17-15:10.
. ECF No. 1427 at 146:2-3.
. Id. at 59:23-60:1.
. See Notice of Intent to Take Compensation Pursuant to AK LBR 2016-2, filed Oct. 1, 2015 (ECF No. 60); Am. Notice of Intent to Take Compensation Pursuant to AK LBR 2016-2, filed Oct. 4, 2015 (ECF No. 71). These notices reflect that MER’s chief executive officer and director, Carl Giesler, would continue to receive monthly salary of $66,667, and four other officers in MER would receive monthly salaries ranging from $25,000 to $35,833.
. Boruff Ex. 34.
. ECFNo. 364.
. ECFNo. 469.
. See ECF No. 469-1 at 15.
. ECF No. 502.
. ECF No. 1427 at 8:9-11.
. Id. at 8:14-15.
. Id. at 10:17-20.
. Id. at 10:11-20.
. Id. at 10:20-25.
. Amendment and Restatement of Employment Agreement, Boruff Ex. 1 at 1.
. Amendment and Restatement of Employment Agreement, Boruff Ex. 1 at 2-3; MER Ex. 15 at 3.
. ECF No. 1427 at 11:22-23.
. Id. at 11:23-25.
. Id. at 110:1-17.
. MER Ex. 25 (Oral Deposition of Carl F. Giesler, Jr.), at 9:12-10:6.
. Id. at 9:19-10:1.
. Boruff Ex. 2 at 1.
. ECF No. 1427 at 129:20-130:1,
. Boruff Ex. 2 at 4-5.
. MER Ex, 25 (Oral Deposition of Carl F. Giesler, Jr,), at 103:9-20. Giesler noted that he traveled much more frequently than Bo-ruff, and typically traveled to Alaska at least once a month. Id. at 104:3-6.
. Id. at 104:7-18.
. Id.
. ECF No. 1427 at 13:3-24.
. Id. at 13:3-14:8.
. Id. at 14:16-18,
. Id. at 14:7-18,
. Id. at 14:21-25.
. Boruff Ex. 9 at Boruff00031.
. Boruff Ex. 10 at Boruff00034,
. ECF No. 1427 at 124:16-125:5,
. See MER Ex, 25 (Oral Deposition of Carl F, Giesler, Jr.), at 61:10-63:6. The evidence, including Boruffs testimony, reflects that management was concerned with the shareholders’ reaction to the bankruptcy and Bo-ruff’s potential involvement. Boruff testified that much of his post-petition efforts were directed towards managing investor relations. ECF No. 1427 at 51:10-13.
. • See MER Ex. 25 (Oral Deposition of Carl F. Giesler, Jr.), at 60:11-63:6,
. MER Ex. 24 (Oral Deposition of Scott M. Boruff), at 87:15-18.
. MER Ex. 25 (Oral Deposition of Carl F. Giesler, Jr.), at 96:19-27:7.
. Id. at 99:20-100:6.
. Id.
. MER Ex. 24 (Oral Deposition of Scott M. Boruff), at 82:14-25.
. MER Ex. 22.
. MER Ex. 2 at 17.
. MER Ex. 24 (Oral Deposition of Scott M. Boruff), at 82:14-25.
. ECF 1427 at 25:22-25.
. Id. at 27:2-19.
. Id. at 27:16-19.
. Id. at 99:16-21.
. MER Ex. 37.
. Id.
. ECF No. 1427 at 28:15-29:1.
. MER Ex. 24 (Oral Deposition of Scott M. Boruff), at 103:1-8.
. Id. at 87:23-88:7.
. ECF 1427 at 57:13-21.
. Id. at 66:13-16.
. Id. at 66:17-67:1,
. ECF No. 1427 at 67:2-69:8. In fact, at the evidentiary hearing, Boruff confirmed that after the ‘‘Badami acquisition in late 2014” he wasn't involved in any other asset acquisitions on behalf of MER. ECF No. 1427 at 69:12-15. In the months before and after the petitions were filed, he never received a binding offer for any of the Debtors' assets that could be presented to MER and SGS.
. ECF No. 1427 at 68:7-14.
. MER Ex. 23.
. Id.
. ECF No. 1427 at 70:19-72:16; 75:24-76:3.
. Id. at 27:19-25.
. Boruff’s application for administrative expenses was filed more than a year ago, on April 28, 2016. The evidentiary hearing was initially scheduled for October 18, 2016, but was continued several times by stipulation of the parties hnd due to court scheduling conflicts. See ECF Nos. 1065, 1066, 1139, 1215, 1258, 1371. The hearing was ultimately held on May 17, 2017. The court finds that Boruff has had more than ample time to compile any records he might have that would substantiate his claim for an administrative expense.
.. MER Ex. 12 at 2.
. See Boruff Exs. 14-20, comprised of copies of emails from Benjamin Meisel at SGS to the Restructuring Committee, including Boruff, between November 20, 2015 and January 26, 2016.
. See Boruff Ex. 20.
. Id.
. Id.
. MER Ex. 25 (Oral Deposition of Carl F. Giesler, Jr.), at 36:4-39:1.
. Id. at 37:13-25.
. Id. at 102:10-15,
. Id. at 102:15-20.
. MER Ex. 25 (Oral Deposition of Carl F. Giesler, Jr.), at 102:21-23.
. MER Exs. 12, 13, and 14.
. Id.
. See Ex. A to the Reorganized Debtors’ Post-Hearing Brief, ECF No. 1431-1.
. ECF No, 1427 at 121:12-25.
. MER Ex. 25 (Oral Deposition of Carl F, Giesler, Jr,), at 110:9-17.
. Id. at 109:16-110:17.
. ECF No. 491 at 4; see also ECF No. 621.
. ECF No. 615.
. 11 U.S.C. § 365(g)(1). Boruff has filed a separate proof of claim in the total amount of $1,603,732,31 for amounts owing due to the rejection of .the employment contract. MER has filed a separate objection to the proof of claim which will be addressed separately. See ECF No, 747,
. 11 U.S.C. § 503(b)(1)(A)(i).
. Burlington N. R.R. Co. v. Dant & Russell, Inc. (In re Dant & Russell, Inc.), 853 F.2d 700, 706 (9th Cir. 1988), superceded by statute on other grounds, 11 U.S.C. § 365(d)(3).
. Microsoft Corp. v. DAK Indus., Inc. (In re DAK Indus., Inc.), 66 F.3d 1091, 1094 (9th Cir. 1995); see also In re Dant & Russell, Inc., 853 F.2d at 706.
. In re DAK Indus., Inc., 66 F.3d at 1094.
. In re Dant & Russell, Inc., 853 F.2d at 706.
. In re DAK Indus., Inc., 66 F.3d at 1094.
. In re Dant & Russell, Inc., 853 F.2d at 706 (quoting Broadcast Corp. of Georgia v. Broadfoot, 54 B.R. 606, 611 (N.D. Ga. 1985)).
. In re Dant & Russell, Inc., 853 F.2d at 707.
. Siller v. Big Hill Logging and Road Bldg. Co. (In re CWS Enters., Inc.), 2015 WL 3651541, at *4 (9th Cir. BAP June 12, 2015)(citing Gull Indus. v. John Mitchell, Inc. (In re Hanna), 168 B.R. 386, 388 (9th Cir. BAP 1994)); see also In re DAK Indus., Inc., 66 F.3d at 1094.
. United States v. Arnold and Baker Farms (In re Arnold and Baker Farms), 177 B.R. 648, 654 (9th Cir. BAP 1994), aff’d 85 F.3d 1415 (9th Cir. 1996); see also Kelley v. Locke (In re Kelley), 300 B.R. 11, 17 (9th Cir. BAP 2003)(citing In re Arnold and Baker, 177 B.R. at 654); In re Sagewood Manor Assocs. Ltd. P'ship, 223 B.R. 756, 761 (Bankr. D. Nev. 1998)(same).
. In re ID Liquidation One, LLC, 503 B.R. 392, 400 (Bankr. D. Del. 2013); Shin v. Altman (In re Desert Springs Fin., LLC), 2017 WL 1434403, at *6 (9th Cir. BAP Apr. 20, 2017)(discussing requirement of additional scrutiny for insider claims).
. In re Dant & Russell, Inc., 853 F.2d at 707; see also In re DAK Indus., 66 F.3d at 1094.
. NLRB v. Bildisco and Bildisco, 465 U.S. 513, 531, 104 S.Ct. 1188, 79 L.Ed.2d 482 (1984); Thompson v. IFG Leasing Co., 788 F.2d 560, 563 (9th Cir. 1986)(“The rent reserved in the lease is presumptive evidence of fair and reasonable value, but the presumption may be rebutted by demonstrating that the reasonable worth of the lease differs from the contract rate.” (Internal citations omitted))
. Shin v. Altman (In re Desert Springs Financial LLC,) 2017 WL 1434403 (9th Cir. BAP April 20, 2017)(citing Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000)).
. Id. (quoting Lundell, 223 F.3d at 1039).
. 218 B.R. 948 (Bankr. D. Ariz. 1998).
. Id. at 954.
. Id. at 956.
. Id. at 955.
. Id. at 955.
. In re Bryant Univ. Roofing, 218 B.R. at 956 (quoting NLRB v. Bildisco and Bildisco, 465 U.S. 513, 531, 104 S.Ct. 1188, 79 L.Ed.2d 482 (1984)).
. In re Bryant Univ. Roofing, 218 B.R. at 956.
. Id, The court indicated that Mullís’ administrative claim would be allowed in a range of between $24,785 and $68,194. The lower range was based on what Mullis had actually been paid prepetition, and the higher rate was based on his contractual rate of salary. Id., n.5.
. 557 B.R. 885 (Bankr. E.D. Va. 2016).
. Id. at 892.
. Id.
. Id. at 894.
. Id.
. Id. at 901.
. Id. at 900.
. Decl. Of Carl R. Giesler, Jr., Chief Executive Officer of Miller Energy Resources, Inc., et al., in Support of Chapter 11 Petitions and First Day Motions (ECF No. 61) at 24-26.
Reference
- Full Case Name
- IN RE: COOK INLET ENERGY, LLC, Debtors
- Cited By
- 1 case
- Status
- Published