In re 1 Potato 2, Inc.

71 B.R. 615, 1987 Bankr. LEXIS 430
CourtDistrict Court, D. Minnesota
DecidedMarch 20, 1987
DocketBankruptcy No. 4-85-2435
StatusPublished
Cited by23 cases

This text of 71 B.R. 615 (In re 1 Potato 2, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re 1 Potato 2, Inc., 71 B.R. 615, 1987 Bankr. LEXIS 430 (mnd 1987).

Opinion

ORDER

MARGARET A. MAHONEY, Bankruptcy Judge.

This matter came on before me on February 24, 1987, on the motion of Michael Lawrence and Stern, Levine, Lifson & Strauss, P.A. for payment of attorneys fees and costs pursuant to 11 U.S.C. § 503(b)(3)(D) and (4).1 This court has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1334, § 157(b)(1) and Local Rule 103(b). This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (B) and (0).

Michael Lawrence (Lawrence) is an equity security holder of 1 Potato 2, Inc. (debt- or). He owns 2000 shares of stock which were purchased on July 24, 1986. Debtor’s bankruptcy petition was filed on November 15, 1985. On October 22,1986,1 confirmed a plan of reorganization of the debtor, of which Lawrence was not a part.

Lawrence approached the debtor in May 1986 about possibly injecting capital into the debtor and being a part of the reorganization effort or taking control of the debt- or. The debtor rejected Lawrence’s proposals for reasons not established conclusively by the evidence. The reasons are not important to this discussion in any event.

Lawrence then approached a competing investor group (the Brown group) and the debtor’s major secured creditor (First Bank) about the possibilities of obtaining part or all of the debtor corporation through participation in their negotiations with debtor. Numerous and detailed discussions then ensued among the parties. Lawrence also contacted the unsecured creditors’ committee to attempt to enlist its help in taking over the debtor.

Eventually negotiations between First Bank and the Brown group “froze out” Lawrence. The Brown group reached an agreement with First Bank and the debtor which resulted in the confirmed plan of reorganization.

Lawrence continued to attempt to obtain control of the debtor. Through his counsel, he objected to the disclosure statement and plan of reorganization of the debtor. Lawrence also filed, too late for consideration, a competing plan of reorganization.

The affidavits of Lawrence and Mark DuVal, one of the attorneys for the unsecured creditors’ committee, state that Lawrence’s actions in attempting to obtain control of the debtor increased the unsecured creditors final share in the plan of reorganization. The affidavit of debtor’s chief financial officer stated that Lawrence’s activities increased the administrative costs of the plan due to increased attorneys fees of approximately $30,000 and management time spent dealing with Lawrence.

Lawrence’s attorneys, Stern, Levine, Lif-son & Strauss, P.A., seek payment of $17,-646.50 in fees and $1,260.33 in costs for [617]*617attorneys time from June 20, 1986 through September 16, 1986. The billing does not include charges for drafting of Lawrence’s own reorganization plan.

Issues

1. Must Lawrence have been an equity security holder at any particular time in the case to allow administrative expense status under 11 U.S.C. § 503(b)(3)(D)?

2. Did Lawrence make a “substantial contribution” in debtor’s case under 11 U.S.C. § 503(b)(3)(D)?

3. Is the compensation requested by Lawrence’s attorneys “reasonable” as required by 11 U.S.C. § 503(b)(4)?

Memorandum

Lawrence and the Stern, Levin, Lifson & Strauss, P.A. law firm request payment by debtor of attorneys fee charges and expenses under 11 U.S.C. § 503(b)(4).2 This request raises the issues listed above. If I find against Lawrence on any issue, I need not reach the following issue or issues.

1.

Mr. Lawrence became a shareholder in 1 Potato 2, Inc. on July 24, 1986. This was a postpetition acquisition. 11 U.S.C. § 503(b)(3)(D) does not state when a shareholder must have acquired his interest to meet the requirements of the statute. The entities listed in 11 U.S.C. § 503(b)(3)(D) are “a creditor, an indenture trustee, an equity security holder, or a committee representing creditors or equity security holders.” None of these entities are parties who could only exist prepetition. Therefore the language of the statute itself would not preclude a postpetition shareholder from recovery.

Lawrence, in order to be heard as to any issue in the debtor’s case and in order to file a proposed plan of reorganization had to become a shareholder since he was not a creditor, indenture trustee or committee member. 11 U.S.C. § 1109(b) and § 1121(c). See In re Frog and Peach, Ltd., 38 B.R. 307 (Bktcy.N.D.Ga.1984) (Fees of unsuccessful purchaser of debtor’s property who was not a creditor, equity security holder or indenture trustee were not reimbursable under 11 U.S.C. § 503(b).)

■ [1] Lawrence acquired his stock on July 24, 1986, after a considerable amount of time had already been invested in the case by his lawyers. I do not believe that the time expended by any party listed in 11 U.S.C. § 503(b)(3)(D) or his or her counsel prior to becoming a party listed in 11 U.S.C. § 503(b)(3)(D) should be compensated. The statute clearly defines those to be compensated. A person who does not meet the requirements of the statute should not receive compensation nunc pro tunc. A nonshareholder, or noncreditor, nontrustee or noncommittee member should have no expectation of recovery under 11 U.S.C. § 503(b)(3)(D). Therefore, only time from July 24, 1986 shall be considered in the discussion below.

2.

The next issue is whether Lawrence made a “substantial contribution” in debtor’s case. 11 U.S.C. § 503(b)(3)(D). In re Richton International Corporation, 15 B.R. 854, 856 (Bktcy.S.D.N.Y.1981) stated [618]*618that such a contribution is one of services “which foster and enhance, rather than retard or interrupt the progress of reorganization.” In order to recover attorneys fees under § 503(b)(4) the contribution does not have to culminate in a plan confirmation but it must result in tangible benefits to the estate. Matter of Patch Graphics, 58 B.R. 743, 746 (Bktcy.W.D.Wisc.1986).

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Bluebook (online)
71 B.R. 615, 1987 Bankr. LEXIS 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-1-potato-2-inc-mnd-1987.