In re General Economics Corp.

360 F.2d 762
CourtCourt of Appeals for the Second Circuit
DecidedMay 24, 1966
DocketNo. 294, Docket 30180
StatusPublished
Cited by9 cases

This text of 360 F.2d 762 (In re General Economics Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re General Economics Corp., 360 F.2d 762 (2d Cir. 1966).

Opinion

MOORE, Circuit Judge:

These are appeals from an order of the District Court granting final allowances for services rendered in a corporate reorganization proceeding under Chapter X of the Bankruptcy Act, 11 U.S.C. § 501 et seq.

A brief description of the debtor’s problems and the history of the reorganization is essential to an appraisal of the fairness of the allowances under review. General Economics Corporation (Economics) formed the debtor, General Economics Syndicate (Syndicate), in February 1962, to engage in the life insurance business as a holding company. Economics took 500,000 of the 548,000 shares of Class B Common Stock at a cost of 19 cents per share. In October 1962, Syndicate issued roughly 200,000 shares of Class A Common Stock to the public at $10 per share. Most of the proceeds of this offering were appropriated by Economics, which borrowed $700,000 from Syndicate and then caused Syndicate to forgive the loan in return for a worthless Economics subsidiary, Life Capital Inc., which Economics transferred to Syndicate.

Economics, Syndicate and five wholly-owned subsidiaries of Economics filed a voluntary joint petition for reorganization on July 17, 1963. On the same day, the District Court approved the petition, appointed James B. Kilsheimer, III and Alexander Halpern trustees for all the debtor corporations, and named the firm of Donovan,. Leisure, Newton & Irvine as counsel to the trustees. At this time, Syndicate had in its own name net assets of approximately $103,000 and owned all [764]*764the stock of Life Capital, Inc., which was virtually worthless, and of General Economics Life Insurance Company of New York (General Economics Life), which had net current assets of roughly $610,-000 and a license to sell insurance in New York. The New York State Department of Insurance had not yet approved the policies and forms of General Economics Life, apparently because of concern over its relatively small assets. General Economics Life sold no policies but did some reinsurance business.

The Trustees submitted a proposed plan of reorganization on January 7, 1964. As amended, the plan was approved on March 24, 1964. The purpose of the plan, was to transfer control of Syndicate to a reputable businessman familiar with the insurance business and to infuse into the reorganized company enough funds so that General Economics Life could start functioning. The plan provided that control of Syndicate would be transferred to a new investor through the sale of Syndicate Class B stock owned by Economics; that the new investor would purchase new “Callable Preferred” of Syndicate at $100 a share; and that the new investor would also purchase up to 83,000 shares of Class A stock at $2.50 a share.

A public sale was held on March 24, 1965, at which Louis Beryl was the successful bidder. He agreed to invest $600,000 of new capital in the reorganized company by purchasing 6,000 shares of the new callable preferred; to purchase control of Syndicate by buying the 500,000 shares of Class B for $200,000; and to buy up to 83,000 shares of Class A at $2.50 a share. Before Beryl’s investment, Syndicate’s total assets were practically the same size as they had been at the time of the filing of the petition.

The closing of the sale took place on December 11, 1964, after the New York State Department of Insurance had approved Beryl and the capitalization of the companies.

The $200,000 paid for the 500,000 shares of Class B stock was placed in a special account, pending determination of a claim by Syndicate’s trustees against Economics for breach of fiduciary obligations. On May 26, 1965, the District Court gave judgment on the claim in the amount of $853,081.31. On June 17, 1965, the Court held, 242 F.Supp. 439, that Syndicate should receive the $200,-000 in the special fund, on account of the judgment for breach of fiduciary obligations.

On September 13, 1965, a hearing was held to determine the amount of final allowances. By order dated September 15th, the Court granted final allowances and disbursements totalling $160,500, of which $100,000 was awarded to the Donovan firm; $31,000 to trustee Kilsheimer; $16,000 to trustee Halpern; and $3,500 to Jerome Gartner and Kramer, Bandler & Labaton, who jointly represented certain Class A shareholders in Syndicate. The Donovan firm had requested $125,000; Kilsheimer $42,500; Halpern $30,000; Gartner and the Kramer firm $25,000. The SEC recommended awards as follows: the Donovan firm $75,000; Kilsheimer $25,000; Halpern $10,000; Gartner and the Kramer firm $15,000.

On these appeals, the Donovan firm and the trustees defend the propriety of the awards; the SEC contends that the awards to the Donovan firm and to the trustees were excessive, and the award to Gartner and the Kramer firm too small; the reorganized company attacks the awards to the Donovan firm and the trustees as excessive; and Gartner and the Kramer firm urge that the award to them was too low.

1. The Awards to the Donovan Firm and to the Trustees.

The reorganized company contends that the administration expenses should have been paid entirely out of the assets held by Syndicate in its own name —some $94,000 — immediately before the closing of December 11, 1964, on the theory that the new money pumped in by Beryl should not be subject to li[765]*765ability for administration expenses. We do not find this argument persuasive. The purpose of the reorganization was to achieve a sale to someone like Beryl, and to get new money into the corporation. Much of the work done was for the benefit of the eventual purchaser. Most important, I (A) of the plan for reorganization expressly provided that:

“All costs and expenses of administration and other allowances which may be made by the Court in this proceeding shall be paid in cash by the Trustees out of the assets in their hands or by the Reorganized Company, as the Court shall direct.”

However, we agree with the reorganized company and the SEC that the allowances to the trustees and to their counsel were too high. We recognize that the trial court “was familiar, as we are not, with the actual work done and therefore far better able to appraise it than we can from mere study of the paper record. * * * ” In Re Realty Associates Securities Corp., 156 F.2d 480, 483 (2d Cir. 1946). We are reluctant to disturb the conclusion of the trial court. However, the administration of the estate was not a matter of énormous complexity. There was no business to run. The principal tasks were to draft a plan of reorganization; to keep the stockholders informed; to find a good buyer for the company; to make sure that the buyer was approved by the state insurance authorities ; and to bring suit against the parent, Economics, for a fairly clear breach of fiduciary obligations.

The Donovan firm estimates that it spent 3,620 hours on the debtor’s affairs. Only 650 of these hours were spent by a member of the firm; some of the hours appear to have been spent in clerical work such as mailings to stockholders; and both the numbers of hours claimed and the accompanying affidavit indicate that a substantial portion of this time was spent on ordinary business matters that were also handled or could have been handled by the trustees. See Finn v. Childs Co.,

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