New England Merchants National Bank v. O'donnell
New England Merchants National Bank v. O'donnell
Opinion of the Court
These are appeals from orders of the District Court drastically reducing the allowance of counsel fees for the former trustee of the debtors in reorganization and the claim of the indenture trustee for certain services, costs and expenses. We reverse.
The reorganization proceedings, in connection with which these allowances were requested, commenced in January, 1971. The debtor Farrington Manufacturing Company was originally a manufacturer of jewelry and eyeglass cases but it had expanded into the development of credit cards, credit-card imprinters and optical-character recognition equipment. In the late 1950s it began to broaden even farther its operations and embarked upon a major, domestic and foreign acquisition program, becoming in the process a minor multinational corporation with two subsidiaries, Farrington Electronics, Inc. and Farrington Overseas Corporation, both of which are involved in the Chapter X proceedings. In its expanded operations, it incurred substantial indebtedness, including two debenture issues, one of which was placed domestically and the other with European investors. As it expanded, it experienced the not infrequent pains of other enterprises engaging in overexpansion into new fields, involving substantial technological problems; by 1969, it was faced with the inability to meet interest and principal payments of its debenture indebtedness incurred as a result largely of these expanded operations.
After fruitless efforts to solve these mounting financial difficulties, Chapter X proceedings were filed. Efforts to reorganize in the course of the proceedings as a continuing concern proved ultimately futile — though the trustee and his attorneys had made a good faith effort to effect a reorganization. The trustee and his attorneys did, however, effect an orderly liquidation of most of the debtors’ properties as going concerns. From this liquidation, cash assets of approximately $4,600,000 were created as against approximately $40,000,-000 in debts.
These appeals are concerned with the allowance of fees to counsel for the former trustee for services rendered up to June 30, 1973 and to the Indenture trustee, the New
The District Court determined at the hearing that it wished to dispose of all fees to date of hearing and directed that the record be supplemented with a bill for services and expenses to date, to be filed with the Court within a week. On the basis of this record, the District Court entered its order allowing counsel for the trustee a fee of $350,000 in full payment for all services and expenses up to date of its order (i. e., November 14, 1974),- less the payment of $70,000 already received by counsel. It adopted the Bankruptcy Judge’s recommendations on the allowances in favor of the indenture trustee, with these two exceptions:
(a) The allowance for expenses during the pre-bankruptcy period was reduced by 50%;
(b) The allowance for the bankruptcy period was to be paid, not as an administrative expense, but out of the funds available for distribution among the Debenture holders.
Both counsel for the trustee and the indenture trustee have appealed. We shall treat the two appeals separately. In considering the appeal of counsel for the trustee, we must distinguish between the request of counsel for the trustee for an allowance on account of services rendered up to June 30, 1973, and for an allowance on account of services rendered between June 30, 1973, and November 14, 1974.
1. Claim of Counsel for Trustee
(a) Claim for Services up to June 30, 1973.
The Bankruptcy Act provides that counsel for a trustee in reorganization proceedings shall receive “reasonable compensation” for its services.
The record seems unanimous on the diligence and competency with which counsel for the trustee discharged its responsibilities.
The primary debtor in this case was found insolvent in November, 1971. The District Court apparently assumed that, when a finding of a debtor’s insolvency is entered in a reorganization proceeding, any attempt thereafter at reorganization is foreclosed and liquidation of the debtor is mandated and should quickly follow. Following this line of reasoning, it concluded that any effort to reorganize the debtor, in whole or in part, after such a finding would be inappropriate and would warrant little consideration in the allowance of fees. Contrary to the District Court’s reasoning, however, a finding of insolvency does not mean that reorganization of the debtor is impractical or forecloses efforts in this direction in a reorganization proceeding; on the contrary, it may be but the predicate for a plan of reorganization, in which both creditors and stockholders make reasonable adjustments in their rights and claims in order to achieve a reorganization which it is hoped will be later beneficial to both groups. And that was apparently the opinion of the Bankruptcy Judge, to whom the proceedings had been referred, the SEC, which was closely following the proceedings, the creditors and the stockholders who were directly interested, as well as the trustee and his counsel in this proceeding. All assumed early in the proceedings that the imprinter division of the debtor’s business could be reorganized into a viable enterprise, capable of competing successfully, to the benefit of all concerned. It was recognized, on the other hand, that there were other parts of the debtor’s business which could not be made profitable by any reorganization and should be abandoned. As we have already observed, the trustee and his counsel accordingly undertook, under the supervision of the Bankruptcy Judge and with the approval of all parties in interest, to dispose so far as possible of the phases of debtor’s business which were considered without any prospect of reorganizing as going concerns and to continue as a going business the imprinter operation' of the debtor. This was done. After a year or so and after the trustee and his counsel had made a good faith effort towards a reorganization, however, it became evident that the imprinter division could not be successfully operated through a reorganization as a going business. The trustee and his counsel were able, though, as a result of the continued operation of the imprinter business as a going concern during this time, to sell this division on far more advantageous terms than they could had that part of the business been sold in a precipitate liquidation.
Nor were counsel’s efforts during this period of attempted reorganization properly characterized as generally “routine.” Even those that might be so described were not without complexity. Much of this complexity stemmed from the “inaccuracy of records” maintained by the debtor and its subsidiaries. This very complexity necessitated considerable hours of inquiry and reconstruction of records. Many of the claims against the debtor were of the normal type but they presented often involved questions both of law and of fact far out of the “routine.” This was particularly true of the tax claims, which required considera
The District Court was considerably disturbed in its consideration of counsel’s application by two suits filed in New York.
That its distaste for this New York litigation colored substantially the District Court’s attitude to the counsel’s fee application is evidenced by the comment in its opinion that it is possible that counsel, in aiding in the institution of the New York suit, was seeking to benefit its other clients rather than the debtor. We do not feel the record warrants any such inference. The relationship of counsel with one of the debenture holders was, according to the record, fully explored with the Bankruptcy Judge and the SEC, neither of whom found any impropriety in counsel’s action..
We are convinced that the District Court’s allowance in favor of counsel for the trustee for services rendered up to June 30, 1973, was unreasonably low, and that the Court was substantially influenced in this result by its feeling that the finding of insolvency made improper and unnecessary any attempt at reorganization and that counsel’s participation in the New York litigation was both unauthorized and improper, intended to prolong the proceedings and to provide an unwarranted justification for counsel fees. As we have seen, these assumptions were not justified and did not warrant a denial of adequate compensation to counsel. We see no reason, though, to remand for further consideration on this phase of the case. The full record is before us and has been reviewed. We are in as good position as the District Court to evaluate counsel’s services.
(b) Claim for Services Subsequent to June 30, 1973
[H] This claim of counsel for the trustee was only filed because of the District Court’s specific instruction to do so. When the Court directed the filing of this claim, counsel for the SEC called to its attention that no notice of a hearing on such allowance had been given as specifically required “under Section 247 of the Act.”
II
Allowance in favor of the Indenture Trustee
Both the Bankruptcy Judge and the SEC recommended that the Indenture Trustee, New England Merchants National Bank, be reimbursed in full for expenses incurred by it before the bankruptcy proceedings were commenced, payable out of the proceeds available to the Debenture holders. The District Court, however, reduced the allowance as so recommended. It stated no reason for reversing the recommendation of the Bankruptcy Judge, contenting itself with the bald declaration that “[t]he expense item of $12,278.06 is hereby cut 50%.” We find no justification for such reduction and remand, with directions that the allowance of full reimbursement for the expenses incurred, to be paid out of the funds available for distribution among debenture holders, be approved.
The SEC recommended that the trustee be allowed $9,000 for services rendered, together with $1,421.59 for expenses incurred, during the bankruptcy proceeding itself, to be paid as a cost of administration out of the general assets of the bankruptcy estate. The Bankruptcy Judge reduced the allowance for services to $7,500, but otherwise adopted the recommendation of the SEC. The District Judge adopted the recommendation of the Bankruptcy Judge, with the exception that payment should be made out of funds available to the .debenture holders and not as a cost of administration payable out of the general assets of the bankruptcy estate. The trustee has not appealed the reduction in fee made by the Bankruptcy Judge but has appealed the amendment made by the District Judge in the recommendation of. the Bankruptcy Judge as to the source from which payment for these services and expenses are to be made. The Act, in our opinion, makes it clear that the trustee is entitled to receive reasonable compensation for services ren
REVERSED AND REMANDED WITH DIRECTIONS.
. The recommendations of the Bankruptcy Judge and the SEC as well as the application of counsel contemplated that the sum of $70,000, previously allowed and paid as an interim allowance, should be credited against the allowance recommended or requested.
. Bankruptcy Act, § 241, 11 U.S.C. § 641.
. See, In Re Coast Investors, Inc. (9th Cir. 1968) 388 F.2d 622, 627; Brown v. Hammer (4th Cir. 1953) 203 F.2d 239, 241.
. See, In Re Mt. Forest Fur Farms of America (6th Cir. 1946) 157 F.2d 640, 647.
. Cf., 406 U.S. at 438, 92 S.Ct. 1678 (Douglas, J., dissenting).
. Milbank, Tweed & Hope v. McCue, supra, 111 F.2d at 102.
. Indeed, some courts have indicated that the time spent is a primary factor in fixing compensation. Illustrative of this reasoning is Chicago & West Towns Railways v. Friedman (7th Cir. 1956) 230 F.2d 364, 367, cert. denied 351 U.S. 943, 76 S.Ct. 837, 100 L.Ed. 1469: “Reasonable fees for such services [services under § 241, 11 U.S.C. § 641] depend largely on the hours spent and the allowance per hour.” Other courts speak of the time factor as “of major importance, although there are other factors which may be given consideration.” Official Creditors’ Committee of Fox Markets, Inc. v. Ely (9th Cir. 1964) 337 F.2d 461, 465.
See, also, statement of counsel for the SEC that “in bankruptcy you are supposed to keep contemporaneous time records and submit them to the court.”
. In Re National Discount Corporation (W.D.S. C. 1962) 211 F.Supp. 261, 262. See, also, In Re Imperial “400” National, Inc. (3d Cir. 1970) 432 F.2d 232, 237; In Re Colonial Distributing Company (D.S.C. 1970) 314 F.Supp. 418, 420; Meyers, Appellate Review of Attorney Allowances in Chapter X Reorganizations, 53 Colum.L.Rev. 1039, 1068-70 (1953).
. Jacobowitz v. Double Seven Corporation (9th Cir. 1967) 378 F.2d 405, 408. This balancing rule is set forth in Bankruptcy Rule 219(c), 11 U.S.C.: “(1) * * * The compensation allowable by the court to a[n] * * * attorney * * * shall be reasonable, and in making allowances the court shall give due consideration to the nature, extent, and value of the services rendered as well as to the conservation of the estate and the interests of creditors.”
. Massachusetts Mutual Life Insurance Company v. Brock (5th Cir. 1968) 405 F.2d 429, 432, cert,. denied 395 U.S. 906, 89 S.Ct. 1748, 23 L.Ed.2d 220 (1969); Milbank, Tweed & Hope v. McCue (4th Cir. 1940) 111 F.2d 100, 101.
. The Bankruptcy Judge found that counsel for the trustee was “diligent in its efforts to fulfill its obligations as counsel to the Trustee not only in the disposition of the assets but in conducting the proper investigation for the 167 Report as well as that involving alleged misrepresentations to certain stockholders.”
The SEC concluded that counsel had “fulfilled its function with dispatch,” had engaged in “no duplication of effort” and was entitled to “full credit for the quality and the efficiency of the work done.”
. This division was sold as a going concern for $3,000,000.
. 11 U.S.C. § 567.
a. In noting that counsel “pulled the laboring oar in presenting the plans of reorganization,” the SEC commented on the fact that “[t]he thoroughness of this [§ 167] investigation was the major factor in the compromise which accorded participation in the plan to the class of creditor-stockholders.”
. This Court has emphasized the necessity of a thorough § 167 investigation with a main objective being the “institution of suits for recovery where probable liability has been shown.” Committee for Holders, Etc. v. Kent (4th Cir. 1944) 143 F.2d 684, 686.
. These claims were summarized in the statement of counsel as follows:
“There were two insider trading problems, one of which was quickly resolved; a minor one, by payment by the former director to the trustee of forty thousand dollars. There was another one; that’s the Norvell White situation which is in litigation pending in New York. There were preferential payments that had been made by Farrington to various creditors prior to the proceeding. Approximately forty thousand dollars was recovered from those people. There was a claimant that had filed a 2.3 million dollar claim against Farrington and one of its subsidiaries. The work of our investigation re-suited not only in those claims being withdrawn, but the claimant in fact paying the trustee forty thousand dollars. National Equipment Metal had a 2.9 million dollar contingent liability. Working with the National Equipment people not only resulted in the ability of the trustee to continue to work along with them to where that 2.9 million dollars contingent liability was eliminated in its entirety, and instead the trustee collected a net of about a hundred and sixteen thousand dollars. There were a number of jurisdictions that had tax claims against the trustee. * * * There were various claims that were filed which our investigation showed to be duplicative or erroneous or problematical in some other respect. We eliminated five hundred and thirty-one thousand dollars of those claims. * *
. In one of these suits the trustee sought to recover of a former officer and director profits realized from a sale of his stock under both federal and state law. On motion for summary judgment the action was found maintainable under applicable state law but not under federal law. Davidge v. White (S.D.N.Y. 1974) 377 F.Supp. 1084. The amount involved in this suit was approximately $1,400,000. The opinion of the District Court does not advert to this decision.
. Finn v. Childs Co. (2d Cir. 1950) 181 F.2d 431, 438.
. 11 U.S.C. § 647.
. In Re TMT Trailer Ferry, Inc. (5th Cir. 1970) 434 F.2d 804, 806, cert. denied 409 U.S. 849, 93 S.Ct. 57, 34 L.Ed.2d 91 (1972); Massachusetts Mutual Life Insurance Co. v. Brock (5th Cir. 1968) 405 F.2d 429, 435, cert. denied 395 U.S. 906, 89 S.Ct. 1748, 23 L.Ed.2d 220 (1969).
. 11 U.S.C. § 608.
. § 242(1), 11 U.S.C. § 642(1).
. In Re Cybem Education, Inc. (7th Cir. 1973) 478 F.2d 1340, 1344; In Re National Tool & Mfg. Co. (3d Cir. 1954) 209 F.2d 256, 257.
Reference
- Full Case Name
- In re FARRINGTON MANUFACTURING COMPANY, Debtors (two cases). NEW ENGLAND MERCHANTS NATIONAL BANK v. Gerald M. O'DONNELL, Trustee, Appellee Robert E. McLAUGHLIN and Steptoe & Johnson, Counsel for Trustee in Reorganization v. Gerald M. O'DONNELL, Trustee
- Cited By
- 3 cases
- Status
- Published