Connolly v. Harris Trust Co.

309 F.3d 1234, 2002 U.S. App. LEXIS 22700, 40 Bankr. Ct. Dec. (CRR) 102, 2002 WL 31430334
CourtCourt of Appeals for the Tenth Circuit
DecidedOctober 31, 2002
Docket01-1263
StatusPublished
Cited by86 cases

This text of 309 F.3d 1234 (Connolly v. Harris Trust Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Connolly v. Harris Trust Co., 309 F.3d 1234, 2002 U.S. App. LEXIS 22700, 40 Bankr. Ct. Dec. (CRR) 102, 2002 WL 31430334 (10th Cir. 2002).

Opinions

STEPHEN H. ANDERSON, Circuit Judge.

Thomas H. Connolly, Chapter 7 trustee for the debtor, MiniScribe Corporation, appeals from orders of the district court (1) reversing an order of the bankruptcy court awarding him a trustee’s fee of $3,044,953.69, and (2) ordering that he be allowed a fee of $1,828,812. We affirm.

FACTS

On January 1, 1990, the debtor filed a voluntary petition in bankruptcy under Chapter 11. It converted the case to a Chapter 7 liquidation on April 16, 1991. Ten days later, Connolly was appointed Chapter 7 trustee.

At the time Connolly assumed his duties as trustee, the MiniScribe estate was insolvent. The estate had only $150,000 cash on hand, and faced Chapter 11 administrative expenses exceeding $3.0 million, a su-perpriority claim against it by Standard Chartered Bank (SCB) in the amount of $17 million, and total claims of approximately $900 million. The only opportunities to develop a bankruptcy estate lay in recoveries on avoidance claims and in a fraud action against former MiniScribe officers and outside accountants and consultants.

The bankruptcy court found that Connolly performed admirably in obtaining funds for the estate. He not only convinced SCB to reduce its claim from $17 million to $1 million, but also further persuaded it to loan the estate $1 million to defray the cost of prosecuting its fraud action. This action was eventually settled on terms highly favorable to the bankruptcy estate and its creditors, yielding over $80 million for the payment of claims. Connolly also conducted 45 adversary proceedings that realized over $17 million for the estate and that resulted in the reduction of claims against the estate from approximately $900 million to approximately $168 million. Finally, Connolly settled a recovery action against one of MiniScribe’s creditors by taking an equity interest in the creditor which Connolly ultimately sold for over five times the value of the settlement.

The bankruptcy court made a number of interim fee payments to Connolly as trustee. In his final fee application, he sought additional compensation that would have resulted in a total fee of $3,044,953. This was the maximum fee permitted at that [1238]*1238time under the percentage fee scheme (the “cap”) outlined in 11 U.S.C. § 326(a) (1986).1 Appellee Harris Trust Company, representing MiniScribe’s debenture holders, opposed the request, as did the United States trustee.

1. First bankruptcy court decision

The bankruptcy court carefully analyzed Connolly’s fee request and issued an extensive order and opinion approving the statutory maximum payment. Connolly v. Harris Trust Co. (In re Miniscribe Corp.), 241 B.R. 729 (Bankr.D.Colo.1999). The court determined that during his administration, Connolly had disbursed $101,492,332 through his accounts. This amount, which included settlements of fraud actions that the trustee and other litigants had brought against third party defendants, would be used in calculating the statutory maximum under the “cap” set out in § 326(a).

The bankruptcy court next applied a lodestar analysis, focusing on a reasonable number of hours spent by the trustee on his duties multiplied by a reasonable hourly rate. It noted that Connolly’s time records reflected 1,779 hours spent on the case, along with an additional 1,347 hours spent by his paralegals. The bankruptcy court concluded that this amount of time, however, was misleadingly low because Connolly had performed more efficiently than expected. It rejected the objectors’ position that the hourly rate should be differentiated, with a rate of $1,000 to $1,500 awarded for time spent on the fraud litigation and a more modest rate of $250 awarded for time spent on other activities. The court determined that a uniform, reasonable hourly rate of $500 should be applied to the 1,779 hours reasonably expended by Connolly, resulting in a lodestar fee of $889,500.

The court next adjusted the lodestar fee by considering the factors outlined in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). It determined that these factors (novelty and difficulty of the issues; requisite skill; preclusion of other employment; contingent nature of the fee; time limitations; amount involved and results obtained; and the experience, reputation, and ability of the trustee) justified a lodestar multiplier of 3.5, resulting in a total fee of $3,113,250.

Alternatively, the court applied a “common fund” or “percentage of the fund” analysis to arrive at an appropriate fee. If the trustee were allowed his claimed fee of $3,044,954, the total adjusted costs for raising and administering the “common fund” of the bankruptcy estate would be $10,864,402, approximately 10.7 percent of the total funds ($101,492,456) that had been administered by the trustee. This percentage, the bankruptcy court determined, was well within the range of permissible costs on a percentage basis.

2. First district court decision

Harris Trust appealed from the bankruptcy court’s award. In an unpublished order and judgment, the district court rejected application of the common fund analysis under the circumstances of this case. Under a common fund theory, the court reasoned, the entire cost of recovery of the amount disbursed by Connolly would be borne by the only remaining creditors, the subordinated debenture holders. Moreover, Connolly was not solely responsible for creation of the fund; the plaintiffs whose fraud claims had been con[1239]*1239solidated with his own had also been represented by able counsel and the bankruptcy court had not factored in the fees, costs and expenses paid to them.

The district court also rejected the $500 per hour unified lodestar rate as lacking in evidentiary support. It found the 3.5 multiplier unjustified because it overstated the risk of non-payment to Connolly, ignored the routine nature of much of the work he had performed, and overlooked the contribution of the trustee’s counsel and counsel for the other fraud plaintiffs to the recovery of the fund. The bankruptcy court would have to recalculate the adjusted lodestar amount on remand.

Finally, the district court addressed the statutory cap. It found that MiniScribe’s bankruptcy estate had been unusual because of the amount of money passing through the trustee’s accounts and because of the circumstances surrounding those disbursements. It noted that $70 million of the approximately $101 million that had passed through the trustee’s accounts had been paid to other parties who had consolidated their fraud actions with the trustee’s fraud action for purposes of trial. The correct measure of the results achieved for purposes of computing the statutory cap lay somewhere between the $31.5 million contended for by Harris Trust, and the $101.5 million figure adopted by the bankruptcy court. The precise figure was left to be calculated by the bankruptcy court on remand.

3. Second bankruptcy court decision

The bankruptcy court held further hearings on remand and took up the fee issues in a second published decision, Connolly v. Harris Trust Co. (In re MiniScribe Corp.), 257 B.R. 56 (Bankr.D.Colo.2000). It recalculated the size of the estate, leaving a figure of $67.4 million attributable to Connolly’s efforts.

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Bluebook (online)
309 F.3d 1234, 2002 U.S. App. LEXIS 22700, 40 Bankr. Ct. Dec. (CRR) 102, 2002 WL 31430334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/connolly-v-harris-trust-co-ca10-2002.