In Re Decor Corp.

171 B.R. 277, 1994 Bankr. LEXIS 1247, 1994 WL 456645
CourtUnited States Bankruptcy Court, S.D. Ohio
DecidedFebruary 15, 1994
DocketBankruptcy 93-56830
StatusPublished
Cited by4 cases

This text of 171 B.R. 277 (In Re Decor Corp.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Decor Corp., 171 B.R. 277, 1994 Bankr. LEXIS 1247, 1994 WL 456645 (Ohio 1994).

Opinion

MEMORANDUM OPINION AND ORDER ON MOTION TO RECONSIDER DEBTOR’S APPLICATION TO EMPLOY BENESCH, FRIEDLANDER, COPLAN & ARONOFF AS ITS GENERAL ATTORNEYS

CHARLES M. CALDWELL, Bankruptcy Judge.

On November 10, 1993, Decor Corporation dba The Art Works and dba The Picture Show, an Ohio corporation (“Debtor”) filed a voluntary petition for reorganization under chapter 11 of the United States Bankruptcy Code. The Debtor is engaged in the manufacture and retail sale of moderately-priced art through sixty-one • (61) retail outlets in shopping malls in sixteen (16) states and the District of Columbia. The Debtor has expressed a strong desire to reorganize quickly in view of a deadline dictated by a debt reduction agreement reached with a major secured creditor and in response to a change in the tax law that may adversely impact upon the Debtor’s reorganization. The Debt- or has indicated that substantial work toward the reorganization of its operations has taken place pre-petition, and that the instant pro- *280 eeeding was filed in November to maximize its potential to meet the identified deadline. In these endeavors, the Debtor has retained the services of the law firm of Benesch, Friedlander, Coplan & Aronoff (“BFCA”) that assisted in its pre-petition efforts, and which it wishes to retain as its official counsel post-petition. BFCA is experienced and highly regarded in bankruptcy matters, and possesses the facilities to aid the Debtor in its reorganization efforts.

On November 10, 1993, BFCA filed retention papers, including the requisite affidavit that purported to identify all of its connections and the existence of any factors that may render it ineligible for retention. In the initial affidavit BFCÁ disclosed:

Beginning in August 1992, BFCA rendered general legal services to Decor ..., including, most recently, legal advice and counsel in connection with preparation for the commencement of the captioned chapter 11 case.

Original Affidavit at p. 1

... In addition BFCA has in the past and may continue to represent other parties in interest in matters unrelated to Decor or the captioned chapter 11 case, including Edward J. DeBartolo Corporation, a lessor of three store locations, in matters unrelated to this case.

Original Affidavit at p. 2

... Within the thirty days prior to bankruptcy, BFCA received approximately Forty Nine Thousand Four Hundred Dollars ($49,400.00) in payment of current fees as well as a retainer of two thousand dollars ($2,000.00) for services to be rendered and fees to be incurred for or on behalf of Decor in connection with this Chapter 11 case.

Original Affidavit at pp. 2-3

In response to the inquiries of the Court regarding the nature of BFCA’s representation of DeBartolo Corporation (“EDC”) and the payments, BFCA filed an Amended Affidavit on December 23, 1993. This Amended Affidavit provided additional information:

... Although BFCA does not serve as general outside counsel for EDC, it continues to work on matters for EDC which are unrelated to this ease or the leases involved herein. BFCA did not and will not perform any work on behalf of EDC in connection with the three store locations leased to Decor by EDC. In the event that Decor and EDC become involved in any negotiations or contested issues in which Decor requires legal representation, Decor will retain, subject to this Court’s approval, special counsel pursuant to 11 U.S.C. § 327(e). EDC has waived any actual or potential conflict of interest with respect to BFCA’S representation of Decor in this case.

Amended Affidavit at p. 2

... On November 4, 1993, Decor paid BFCA the sum of $19,756.00 on account of an invoice dated October 29, 1993 covering services rendered by BFCA in the ordinary course of business for the four months preceding October 1993. On November 10, 1993, prior to the filing of its voluntary petition, Decor paid BFCA, via wire transfer, the sum of $34,150.00 on account of an invoice dated November 8, 1993 covering services contemporaneously rendered during October and November 1993. BFCA received no retainer for services to be performed during the bankruptcy case.

Amended Affidavit at p. 3

Upon review of the Amended Affidavit, the Court became concerned that actual or potential conflicts may exist that would disqualify BFCA. These concerns were expressed to BFCA during a hearing on January 24, 1994. Additional information on the nature of services performed for the Debtor during the ninety (90) days preceding filing was requested, in addition to more detail on the exact nature of BFCA’s representation of EDC. Subsequent to the hearing on January 24, 1994, the Court entered an order denying the retention of BFCA without prejudice to reconsideration upon the submission of the requested information.

On January 25, 1994, the Debtor filed a Motion to Reconsider. On February 3,1994, the Debtor filed a Supplement to and Memorandum in Support of Motion to Reconsider Debtor’s Application to Employ BFCA and a Supplemental Affidavit of Michael S. Kranitz *281 on behalf of BFCA. In view of the impen-dent hearing on the Debtor’s disclosure statement scheduled for February 18, 1994, and the need to resolve retention issues, the Court granted Debtor’s request for an expedited hearing on its Motion to Reconsider.

In the Supplemental Affidavit (“Third Affidavit”) it was disclosed that BFCA represents EDC on 113 matters pertaining to collections, forcible entry and detainer actions, zoning issues, real estate matters, an audit letter response and contract issues. BFCA supplied as an attachment to the Third Affidavit a listing of the matters (Exhibit A attached to this Memorandum), and further BFCA represented that, “... None of the matters in which BFCA represents EDC involves, nor has any past matter involved, either directly or indirectly, Decor Corporation or any of its stores.” Third Affidavit at p. 3.

In addition, the Third Affidavit contained as an exhibit a detail of the services rendered by BFCA for the Debtor and payments received within thirty (30) days prior to the filing. (Exhibit B attached to this Memorandum). A review of this attachment indicates that services were commenced as early as May, 1993, and were concluded as late as November 8, 1993, two days prior to the filing. The first payment on these services was not received by BFCA until November 4, 1993, and the last payment was received on November 10, 1993. Payments were received by check on November 4, 1993 (approximately $19,755), and by wire transfer on November 10, 1993 (approximately $34,151) for a total of approximately $53,906.

According to the attachment (Exhibit B) to the Third Affidavit, that broadly summarized and categorized the work performed, it included corporate restructuring, lease restructuring, procurement of financing, research on tax issues and the preparation of bankruptcy pleadings, etc.

The United States Bankruptcy Code, the Bankruptcy Rules and rules of this Court impose stringent requirements on the eligibility of counsel to represent a chapter 11 debtor.

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Cite This Page — Counsel Stack

Bluebook (online)
171 B.R. 277, 1994 Bankr. LEXIS 1247, 1994 WL 456645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-decor-corp-ohsb-1994.