In re Andover Togs, Inc.

199 B.R. 4, 1996 Bankr. LEXIS 970, 1996 WL 447590
CourtUnited States Bankruptcy Court, S.D. New York
DecidedAugust 5, 1996
DocketBankruptcy Nos. 96-B-41437 (TLB) to 96-B-41440 (TLB)
StatusPublished

This text of 199 B.R. 4 (In re Andover Togs, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Andover Togs, Inc., 199 B.R. 4, 1996 Bankr. LEXIS 970, 1996 WL 447590 (N.Y. 1996).

Opinion

DECISION ON DEBTORS’ APPLICATION FOR APPROVAL OF RETENTION OF DELOITTE & TOUCHE, LLP AS ACCOUNTANTS

TINA L. BROZMAN, Chief Judge.

The debtors, Andover Togs, Inc. et al., ask that I approve the retention of Deloitte & Touche LLP (“Deloitte”) to complete auditing services it began prior to the filing of the debtors’ petitions. Although the Committee of Unsecured Creditors joins the debtors in the requested relief, the Acting United States Trustee (the “U.S. Trustee”) objects. Because I believe that Deloitte’s limited retention is warranted here, the debtors’ motion is granted.

[5]*5I.

The facts are not in dispute. The debtors are required to file annual reports with the Securities and Exchange Commission. Toward that end, they seek authority to retain and employ Deloitte for the limited purpose of completing the audit of the debtors’ financial statements for the fiscal year ended November 30, 1995, which financial statements are an integral component of the debtors’ 10K. Significantly, the debtors have retained with court approval another accounting firm to assist them in all other areas of their reorganization eases.

Deloitte had commenced and substantially completed such services prepetition and will willingly complete what it began, at a cost of only $15,000. So far, so good, but the rub lies in the fact that Deloitte is a creditor. It is unwilling to waive its prepetition claim, although it has indicated that it would waive its right to vote that claim in the event it were retained.

The debtors undeniably require the services which they ask for Deloitte to provide at what would be the least possible cost. The unpalatable alternative is to retain another firm, but that would entail reconstructing what Deloitte has already done, at an estimated cost to the debtors in excess of $100,000. The debtors also prefer to work with Deloitte because of that firm’s acquired familiarity with the debtors’ affairs.

The Acting United States Trustee (the “U.S. Trustee”) objects to Deloitte’s retention because of its status as a creditor of the estate, which is said to remove Deloitte from the category of disinterested persons under section 327(a) of the Bankruptcy Code and thus preclude Deloitte’s retention. The debtors assert that section 1107(b) of the Code creates an exception to the requirement of disinterestedness found in section 327(a) and supports the continued retention of Deloitte where equity and the best interest of the estate demand such a result.

II.

The legal arguments presented by the parties both in their papers and at oral argument focused upon the proper construction of the disinterestedness standards of the Bankruptcy Code. The parties debate the interpretation of the following sections:

11 U.S.C. § 327(a):

Except as otherwise provided in this section, the trustee, with the court’s approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee’s duties under this title.

11 U.S.C. § 101(14):

“disinterested person” means a person that....
(A) is not a creditor, an equity security holder or an insider; ...

11 U.S.C. § 1107(b):

Notwithstanding section 327(a) of this title, a person is not disqualified for employment under section 327 of this title by a debtor in possession solely because of such person’s employment by or representation of the debtor before the commencement of the case.

Courts are divided as to how these sections intersect where a debtor’s would-be professional is also a creditor. What I will call the strict reading of section 327 represents the majority rule. In the view of this majority of courts, because the Code unambiguously demands that professionals be disinterested, and specifically defines disinterested to exclude creditors of the estate, prepetition creditors may not be employed as professionals by the estate. United States Trustee v. Price Waterhouse (In re Sharon Steel Corp.), 19 F.3d 138, 141 (3d Cir.1994). These same courts reconcile section 1107(b) of the Code with section 327(a) by holding that whereas section 1107(b) relieves professionals of any conflict of interest resulting solely from prior representation of the prepetition debtor, it does not relieve them of any disqualification if they are creditors. Childress v. Middleton Arms, L.P., 934 F.2d 723, 725 (6th Cir.1991); see also Michel v. Federated Department Stores, Inc. (In re Federated Department Stores, Inc.), 44 F.3d 1310, 1319-20 (6th Cir.1995) (reaffirming Middleton Arms and requiring non-disinterested professionals to [6]*6disgorge fees awarded by the bankruptcy court). Recognizing the inequitable results that may flow from such an interpretation, the majority nevertheless notes that an inability to fathom the rationale behind the statute’s mandate is not reason enough to ignore it. Michel v. Eagle-Picher Indus., Inc. (In re Eagle-Picher Indus., Inc.), 999 F.2d 969, 972 (6th Cir.1993).

A minority of courts in the years preceding the circuit court jurisprudence read section 1107(b) liberally as an exception to the disinterestedness requirement of 327(a) where there was no real conflict of interest and where employment of the professional would benefit the estate. In re Heatron, Inc., 5 B.R. 703, 705 (Bankr.W.D.Mo.1980); In re Best Western Heritage Inn Partnership, 79 B.R. 736, 740 (Bankr.E.D.Tenn.1987); In re Viking Ranches, Inc., 89 B.R. 113, 115 (Bankr.C.D.Cal.1988); In re Microwave Products of America, Inc., 94 B.R. 971, 974 (Bankr.W.D.Tenn.1989). These courts treated the professional’s status as a creditor as incidental to prior representation of the debt- or. The disinterestedness requirements were viewed not as mandatory, but rather as guidelines for the exercise of the court’s discretion. In re Cropper, Co., Inc., 35 B.R. 625, 629 (Bankr.M.D.Ga.1983). This approach facilitated equitable considerations such as the detrimental effect on the debtor as a result of the disqualification.

Whereas the parties concentrated on these two approaches, their focus was somewhat misdirected; Deloitte’s limited retention is warranted by sections 327(e) and 105(a) of the Code. The first of these sections provides that notwithstanding the Code’s disinterestedness requirement, the court may approve the employment, “for a specified special purpose ...

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199 B.R. 4, 1996 Bankr. LEXIS 970, 1996 WL 447590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-andover-togs-inc-nysb-1996.