In re Edisto Resources Corp.

160 B.R. 736, 1993 Bankr. LEXIS 1686
CourtUnited States Bankruptcy Court, D. Delaware
DecidedNovember 2, 1993
DocketBankruptcy Nos. 92-1345 through 92-1350
StatusPublished
Cited by2 cases

This text of 160 B.R. 736 (In re Edisto Resources Corp.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Edisto Resources Corp., 160 B.R. 736, 1993 Bankr. LEXIS 1686 (Del. 1993).

Opinion

MEMORANDUM OPINION AND ORDER

HELEN S. BALICE, Bankruptcy Judge.

On August 13, 1993, Merrill Lynch Pierce Fenner & Smith filed an amended application requesting $525,000 in compensation and $108,736.99 for reimbursement of expenses for the period October 26, 1992 through May 27, 1993. For the reasons stated below, the amended application is allowed in the amount of $350,000 in compensation and $41,576.49 in expenses. This is a core proceeding. 28 U.S.C, § 157(b)(2)(A) & (B).

I. Facts

Edisto Resources Corporation and related business entities retained Merrill Lynch in June, 1991 pursuant to a letter agreement as a financial advisor to assist the Edisto entities in a financial restructuring. That letter agreement also provided that Edisto would reimburse Merrill Lynch for “its reasonable out-of-pocket expenses, including the fees and disbursements of its legal counsel, incurred in connection with its activities hereunder.” April 29, 1992 letter, at 6, ^2b.

Edisto and certain of the related entities filed Chapter 11 petitions on October 26, 1992. Because of the “pre-planned” nature of the cases, a plan of reorganization and disclosure statement were also filed on this date.

On December 29, 1992, this court heard and approved Edisto’s modified application to retain Merrill Lynch nunc pro tunc to October 26, 1992. The modified application requested compensation for Merrill Lynch at a [738]*738rate of $75,000 per month, “plus all out of pocket expenses of the type described [in the April 1992 letter agreement].” Docket No. 131, at 2, ¶4. At the hearing, the court emphasized to counsel for Merrill Lynch that each Merrill Lynch professional would be required to aecount for her time through the use of timesheets in accordance with the requirements of this District, and that subsequent fee applications would be carefully reviewed and the amounts requested therein reduced if necessary. See generally Docket No. 139, at 19-22. The retention order reiterated these points and allowed Merrill Lynch to provide services only as “set forth in the [modified] engagement agreement.” Docket No. 131, at 2, ¶2.

A plan of reorganization was ultimately confirmed in the Edisto cases, and thereafter, Merrill Lynch filed its original application for compensation and reimbursement of fees. Both the Office of the United States Trustee and the Unsecured Creditor’s Committee filed objections. In addition, at the hearing on the application, the court pointed out the insufficient nature of the description of services contained in the application. Specifically, the court pointed out the unified description of both pre-petition and post-petition services, a complete absence of Merrill Lynch time sheets (despite the court’s prior instructions), and legal fees and expenses buried in the expense request without corresponding timesheets and expense itemiza-tions. The court also had other questions concerning the request for expense reimbursement. The hearing on Merrill Lynch’s application was continued, and thereafter, Merrill Lynch filed its amended application. A hearing on this amended application was held on September 15, 1993, at which time Merrill Lynch further supplemented the record.

II. Discussion

A. The Request For Compensation Will Be Reduced.

The record in support of the $525,000 request for compensation is still deficient. The amended application’s first description of services still blends together a 17 month pre-petition period with a 7 month post-petition period. While the amended application contains a new “Summary of Activities” section which, on a weekly basis, indicates work performed pre-petition and post-petition, the descriptions indicate that the bulk of Merrill Lynch’s work was performed pre-petition. In particular, during the pre-petition period, Merrill Lynch undertook comprehensive studies of Edisto’s complex liability structure and debt service obligations, the projected cash flow, and alternatives for dealing with Edisto’s long term liquidity problems. Also pre-petition, Merrill Lynch undertook an extensive valuation analysis. Docket No. 654, Exhibit E, at 2. All this work preceded the filing of the initial Chapter 11 plan and disclosure statement on the first day of Edisto’s Chapter 11 case. According to the objection of the Unsecured Creditors Committee, Merrill Lynch was paid $802,731.86 for its pre-petition work.

Post-petition, the majority of Merrill Lynch’s time was spent on considering certain claw-back warrants, revising the plan and disclosure statement, preparing and providing expert testimony, and on matters relating to its own retention and proof of claim. Merrill Lynch has not indicated the number of hours it spent on these post-petition matters, or submitted any other information that would satisfy its burden of proof and allow the court to conclude that $75,000 per month for a total of $525,000 represents reasonable compensation for these post-petition activities. Indeed, Merrill Lynch’s own application implicitly concedes this, as it asks this court to consider the nature and degree of its pre-petition services as a basis for justifying its post-petition fees. E.g., Docket No. 654, at 13, ¶ 23(a), (f) & (g). Thus, the amount of requested compensation must be reduced.

On September 14, 1993 Merrill Lynch and the Unsecured Creditors Committee jointly filed a stipulation resolving the latter’s objection.1 This stipulation provides that: “a total fee of $350,000, rather than the $525,000 [739]*739requested in Merrill Lynch’s application, constitutes reasonable compensation for the actual, necessary services rendered by Merrill Lynch to the Debtors in this case.... ” Based upon this stipulation and the court’s own findings, $350,000 will constitute reasonable compensation for Merrill Lynch’s services.

B. The Request For Expenses Will Be Reduced.

The amended application includes the invoices, timesheets, and expense itemiza-tions of each of the two law firms Merrill Lynch employed. Of the $108,736.99 Merrill Lynch requests in expense reimbursement, $67,738 are for the legal fees of its Texas counsel, Thompson & Knight. Most of Thompson & Knight’s fees relate to work performed on retention and proof of claim matters. By way of background, Merrill Lynch filed a proof of claim on January 14, 1993 for pre-petition obligations due under the engagement agreement. Both the Unsecured Creditors Committee and Edisto filed objections to this claim. Merrill Lynch ultimately withdrew the claim. Docket no. 589.

None of the time relating to retention or proof of claim matters is compensable. As discussed in Section I., the amended retention application sought, and this court approved only those expenses Merrill Lynch incurred in connection with its financial advisory services. The time counsel expended assisting Merrill Lynch on retention and proof of claim matters has nothing to do with the advisory services for which Edisto retained Merrill Lynch in its Chapter 11 case. Moreover, the substantial number of hours Thompson & Knight billed concerning the terms of Merrill Lynch’s retention and compensation, and preparing a proof of claim provided absolutely no benefit to the debtors’ estates. Accord, In re Columbia Gas System, 150 B.R.

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Cite This Page — Counsel Stack

Bluebook (online)
160 B.R. 736, 1993 Bankr. LEXIS 1686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-edisto-resources-corp-deb-1993.