In re Copenhaver, Inc.

506 B.R. 757, 2014 WL 929729, 2014 Bankr. LEXIS 939, 59 Bankr. Ct. Dec. (CRR) 58
CourtUnited States Bankruptcy Court, C.D. Illinois
DecidedMarch 11, 2014
DocketNo. 13-72052
StatusPublished
Cited by3 cases

This text of 506 B.R. 757 (In re Copenhaver, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, C.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Copenhaver, Inc., 506 B.R. 757, 2014 WL 929729, 2014 Bankr. LEXIS 939, 59 Bankr. Ct. Dec. (CRR) 58 (Ill. 2014).

Opinion

OPINION

MARY P. GORMAN, Chief Judge.

Before the Court is an Application of the Debtor Pursuant to 11 U.S.C. § 363(b) for Entry of an Order Approving the Employment of Dave Moravec as Consultant and Chief Restructuring Officer to the Debtor Effective as of February 1, 2014 (“Employment Application”). For the reasons set forth below, the Employment Application will be denied without prejudice.

I. Factual and Procedural Background

Copenhaver, Inc., d/b/a/ W.M. Putnam Co. (“Debtor”), filed its voluntary petition under Chapter 11 on October 28, 2013. The Debtor describes its business as an outsourcer of premise-related products and services for businesses, providing furnishings, interior design, office products, brand management, printing, and consulting services. The Debtor is headquartered in Bloomington, Illinois, and has provided its products and services to a wide range of customers for more than sixty-five years. A significant loss of business from a key customer precipitated the Debtor’s bankruptcy filing. The Debtor is represented by Attorney Matthew E. McClin-tock and the firm of Goldstein & McClin-tock LLLP.

Early in the case, the Debtor’s attorney reported that the Debtor intended to liquidate rather than reorganize. Through prompt asset sales, the Debtor hoped to recognize its going concern value and maximize the ultimate distribution to its creditors. In fact, the Debtor moved quickly to sell its “core assets” including inventory, customer lists and information, equipment, furniture and other personal property, intellectual property rights, contracts and leases, books and records, and goodwill. An order approving the sale of the “core assets” to Martin Graphics and Printing Services, Inc. (“Martin”) was entered on December 17, 2013, and the sale closed shortly thereafter. The Debtor has subsequently completed an additional sale to Martin of a Ford van and some miscellaneous warehouse and office equipment and furnishings. Three additional sales to other buyers of vehicles and other personal property not included in the Martin sales have also been approved. During the first four months of its Chapter 11 case, the Debtor has very efficiently liquidated-the bulk of its assets for the benefit of its creditors.

On January 27, 2014, the Debtor filed the Employment Application at issue here. The Debtor seeks to employ Dave Mora-vec, the former president of the Debtor, to be its chief restructuring officer and a consultant. After the case filing, Mr. Mo-ravec continued his regular employment with the Debtor and was instrumental in completing the sales described above. He also has collected receivables and completed other tasks necessary to wind down the Debtor’s business. Mr. Moravec is repre[760]*760sented to be the only executive-level employee of the Debtor who has sufficient knowledge of the Debtor’s business to be of meaningful continuing assistance in this case. But Mr. Moravec is not able to continue his employment with the Debtor according to its previous terms. The Debtor does not need and cannot afford to have Mr. Moravec work full time. And Mr. Moravec’s employment contract with the Debtor was assumed by Martin when it purchased the Debtor’s assets. Mr. Mo-ravec is now a full-time employee of Martin. Thus, the Employment Application seeks to hire Mr. Moravec at the rate of $225 per hour on an “as needed” basis to assist the Debtor with remaining asset sales, receivable collections, claim objections, and other winding down issues.

Mr. Moravec filed a verified Declaration in support of the Employment Application. In the Declaration, he acknowledges that he is the former president and remains a director of the Debtor. He also states that he is now an employee of Martin and that Martin holds a $32,000 unsecured claim against the Debtor. Mr. Moravec characterizes Martin’s claim as “de min-imis” and says that the existence of the claim causes no conflict. He says that he has no other conflicts which would impact his employment. He asserts that, if employed, his “compensation is not subject to court oversight.” He agrees, however, to maintain time records and to file “fee statements” which would be subject to objection by the United States Trustee (“UST”) or other parties in interest.

The Employment Application states that it is brought pursuant to § 105 and § 363(b) of the Code. See 11 U.S.C. §§ 105, 363(b). Similar to the Declaration of Mr. Moravec, the Employment Application claims that when a “professional” is retained under § 363, “there is no ‘fee application’ requirement.”

At the hearing on the Employment Application, the Assistant UST appeared and stated that he was in agreement with the concept of hiring Mr. Moravec but was concerned about certain procedural aspects of the proposed employment. He stated that he had discussed the employment with the Debtor’s counsel before the Employment Application was filed and that he had expected the employment to have been sought in the “normal way” through § 327 of the Code. See 11 U.S.C. § 327. He questioned whether § 363(b) provided authority for the employment proposed here.

Counsel for the Debtor responded that employment of Mr. Moravec would not be allowed under § 327 because, as a current director of the Debtor, he would not be disinterested. See 11 U.S.C. §§ 101(14), 327(a). He stated that authority had been cited in the Employment Application for the proposition that § 363(b) provides a basis for the employment of Mr. Moravec notwithstanding his ineligibility to be employed under § 327. When questioned by the Court about whether any authority existed for the proposition that, if hired under § 363(b), Mr. Moravec would not be subject to the provisions of Rule 2016, counsel first stated “no” — implying no authority existed — and then said he had done no research on the issue. See Fed. R. Bankr .P.2016.

At the conclusion of the hearing, the Court said that it would grant the Employment Application under two conditions. First, Mr. Moravec would be required to submit an amended declaration acknowledging that he was, in fact, subject to Rule 2016 and required to apply for approval of his compensation. Second, although the simplified procedures for the allowance of interim compensation payments to Mr. Moravec would be approved, Mr. Moravec would be required to file a final fee appli[761]*761cation subject to court approval when his work was completed. The Court stated that it agreed that the employment of Mr. Moravec was both appropriate and allowable under § 363(b). But employment under § 363(b) does not release an employed person from all other requirements of the Code and Rules.

The Court further stated that because lead counsel for the Debtor was not present, if the Court’s conditions were unacceptable and the Debtor wanted to press the issue of the inapplicability of Rule 2016, a brief on the issue could be submitted in lieu of the amended declaration and revised order. The Debtor was given twenty-one days to submit the amended declaration and revised order or a brief. The Debtor has now submitted a brief arguing that a person employed under § 363(b) has no obligation to comply with Rule 2016.

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506 B.R. 757, 2014 WL 929729, 2014 Bankr. LEXIS 939, 59 Bankr. Ct. Dec. (CRR) 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-copenhaver-inc-ilcb-2014.