Scribner & Miller v. Conway
Opinion of the Court
The “ ‘most thankless and delicate task’ ” in corporate reorganizations, that of fixing allowances for services rendered in the proceedings, Finn v. Childs Co., 2 Cir., 181 F.2d 431, 435, is here especially difficult because of the nature of the problems faced and the divergence of views which developed as to their solution. The Silesian-American Corporation was formed in the twenties to mine, exploit, and develop extensive zinc and coal deposits in Upper Silesia; but the events of World War II left in substance only rights of action as its assets in the reorganization proceedings initiated in 1941. Among these rights, those against the American promoters or their holding company “Sihoc” and against certain Swiss banks which had accepted deposits on sales of zinc have alone shown any promise so far.
The present appeal is taken by the attorneys for the Bondholders’ Protective Committee who are primarily seeking an increase in their own allowance, rather than a return to the reorganized corporation; but this appeal permits of full representation by the S. E. C., which had participated in the proceedings below. Bankruptcy Act § 208, 11 U.S.C. § 608; S. E. C. v. United States Realty
In Finn v. Childs Co., supra, 2 Cir., 181 F.2d 431, we held under the circumstances there disclosed that the recommendation for allowances of the S. E. C., made by this responsible and disinterested public agency after close familiarity with the entire proceedings and careful study and report, should be followed unless the reorganization judge showed reasons otherwise based on specific findings. See also In re Solar Mfg. Corp., 3 Cir., 215 F.2d 555. We think that principle even more apposite here in view of the particular circumstances noted above. True, the able trial judge has set forth his deep conviction otherwise; but we are constrained to disagree. We do this with the more assurance since we think he was in error in one important aspect. In justifying greater awards than the Commission recommended for the trustee and the trustee’s counsel and a lesser award to the counsel for the Bondholders’ Protective Committee, he held that the latter’s opposition to the first plan, even though successful before us, could serve as a basis for allowance only if it led to the realization of substantially increased assets to justify the delay of some years in the distribution of the estate. And he did not find such benefit. But this does not seem to us correct. The increase in assets was quite substantial, even if still disappointing; and it involved a recovery from Sihoc which cannot be overlooked. Moreover, we think the theory erroneous. Services are rendered in connection with the plan even if they consist of opposing an original plan found judicially to be not fair and feasible, as we held as early as In re Consolidated Motor Parts, Inc., 2 Cir., 85 F.2d 579, 581. Hence the order must be reversed, and upon remand revised to incorporate the allowances recommended by the S. E. C., viz., $70,000 and $130,000 to the trustee and his counsel respectively, in place of the $90,000 and $140,000 allowed, and $50,000 to the appellant as counsel for the Bondholders’ Protective Committee, in place of the $45,000 allowed.
Reversed and remanded.
. The plan reserves $50,000 cash for reorganization expenses and for the prosecution of the claims referred to in note 1 supra. This apparently satisfies the reorganized corporation, which has not opposed the allowances herein. All interests represented except the S. h¡. C. oppose any reduction in the total allowances and urge that any over-all reduction will benefit the Swiss banks and Sihoc on dividends to bo received. But wo do not believe that this should he ground for excessive allowances; and as the Commission points out, the public bondholders will share somewhat if dividends are increased.
Reference
- Full Case Name
- SCRIBNER & MILLER and Paul Emery Kern, Claimants-Appellants v. Francis X. CONWAY, Trustee of Silesian-American Corporation, and Goldwater & Flynn, Attorneys for the Trustee
- Cited By
- 8 cases
- Status
- Published