In re Grivas

105 B.R. 954, 1989 Bankr. LEXIS 1820, 1989 WL 126437
CourtUnited States Bankruptcy Court, S.D. California
DecidedOctober 24, 1989
DocketBankruptcy No. 87-01131-LM11
StatusPublished
Cited by2 cases

This text of 105 B.R. 954 (In re Grivas) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Grivas, 105 B.R. 954, 1989 Bankr. LEXIS 1820, 1989 WL 126437 (Cal. 1989).

Opinion

MEMORANDUM DECISION

LOUISE DeCARL MALUGEN, Bankruptcy Judge.

What’s in a name? That which we call a rose
By any other name would smell as sweet. Shakespeare, The Tragedy of Romeo and Juliet,
Act II, Scene II, 43:44.

Like a modern day Juliet, this Court must ponder whether that which we call a “settlement” in an application to employ special counsel is the same as that “settlement” embodied in a confirmed reorganization plan. Although the semantic construction may appear to be less ethereal than that engaged in by Juliet, the stakes are high. At issue is the entitlement of three law firms to fees in excess of $865,000.

FACTUAL SUMMARY

Hill & Baskin are general counsel for William L. Grivas, an individual in Chapter 11 proceedings since February 1987. Shortly after the commencement of this Chapter 11 case, the debtor filed a lender liability lawsuit against Security Pacific National Bank (“SPNB”). The lawsuit alleged that SPNB’s precipitous action in shutting down Grivas’ line of credit a mere 45 days after commencing the lender-borrower relationship drove his successful electronics assembly business into Chapter 11 proceedings. To say that this litigation [956]*956and, indeed, every aspect of this Chapter 11 case, was fought with the ferocity of Armageddon is an understatement.

For a period of time, Hill & Baskin represented the debtor in both the Chapter 11 case and the state court lender liability action. Then, in September 1987, the debt- or submitted his Application by Debtor-In-Possession to Employ Special Litigation Counsel and to Supplement and Modify Terms of Employment of Hill and Baskin. By that application, the debtor sought to employ Hill & Baskin, Milberg, Weiss, Ber-shad, Specthrie and Lerach (“Milberg, Weiss”) and Daughton, Hawkins & Bacon (the “Daughton firm”) as special litigation counsel in the lender liability action. The September 1987 application converted the debtor’s representation in the lender liability action from a part-hourly, part-contingent arrangement to a full contingency basis, providing for a sliding scale contingent fee in the event of recovery.1 The application further stated:

(d) In the event of a settlement of all or any part of the Security Pacific litigation, special litigation counsel shall have the option of choosing to be paid either at their normal hourly rates or in accordance with the contingency fee basis as set forth above. (Application filed September 30, 1987, para. 11(d), p. 7-8.)

The Court approved this arrangement by order entered September 30, 1987 (the “September 30 Employment Agreement”), which in addition to authorizing the Mil-berg, Weiss and Daughton firms to be employed, modified and supplemented the original employment order of Hill & Bas-kin.

In October 1988, the debtor filed an Application by Debtor to Retain Special Litigation Counsel. The application recited that the Daughton firm had been forced to withdraw as special litigation co-counsel and the debtor wanted to substitute Cap-pello & Foley, noted experts in lender liability litigation, for the now-disqualified Daughton firm. The application was made on terms similar to those employing Hill & Baskin and the Milberg, Weiss firm. The same sliding contingent fee scale was employed. In relevant part, the exhibit to the application further stated:

For the purpose of this application and the debtor’s agreement with special litigation counsel, the term “recovery” shall mean anything of value, including loans, deferred payment terms, merchandise credits, set-off rights, debt forgiveness, below-market interest and the like.
sjc sfc sfc >H j)t >H
(d) In the event of a settlement of all or any part of the Security Pacific litigation, special litigation counsel shall have the option of choosing to be paid either at their normal hourly rates or in accordance with the contingency fee basis set forth above. (Exhibit “A” to Application filed October 24, 1988, pp. 3-4).

The Court approved the retention of Cap-pello & Foley by Order entered October 25, 1988.

While the lender liability action raged in federal and state court (it was removed to federal court and remanded twice during its pendency) the Chapter 11 case became the battleground for competing plans of reorganization filed by SPNB and the debt- or. It was SPNB’s plan which creates this dispute over fees. That plan provided for SPNB to pay the estate’s unsecured creditors $1.75 million plus pay all administrative expenses (including attorney’s fees) and priority claims in full in exchange for compulsory dismissal of the debtor’s lender liability action. Needless to say, the debtor vigorously opposed submission of this plan to the creditor body.

At a hearing held on approval of the disclosure statement for the SPNB plan, [957]*957the debtor raised numerous arguments against a compulsory settlement, including the point that the bank’s plan was not a “settlement” because the term “settlement" implied a consensual termination of the controversy. The bank countered with equally forceful arguments, including that contained in its Reply filed July 8, 1988, in which it stated:

The settlement which is at the heart of the Joint Plan2 is designed to achieve the principles and purposes of the Bankruptcy Code, [emphasis added] (Reply of Security Pacific National Bank filed July 8, 1988, p. 11, 11. 3-5)

The Official Creditors’ Committee joined SPNB’s argument stating:

The debtor says that Section 1123 doesn’t give this court any power to confirm a plan that provides for a settlement of the lender liability action, because the debtor is not a part of that settlement. It seems to me that would render meaningless and useless provisions in the Bankruptcy Code in .Chapter 11 that can provide for compromises of disputed claims. It is clear from the cases cited by Mr. Morrison [SPNB’s attorney] that time and time again the bankruptcy courts in confirmation hearings have settled claims over the objections of debtors and the equity security holders. (Transcript, Hearing re Approval of Debtor’s and/or Security Pacific National Bank’s Disclosure Statements, July 12, 1988, p. 73, 11. 21-25; p. 74, 11. 1-2)

Ultimately, the Court was persuaded by case authority cited by the Joint Plan proponents — namely, Matter of Texas Extrusion, 844 F.2d 1142 (5th Cir., 1988) and Holywell Corp. v. Bank of New York, 59 B.R. 340 (S.D.Fla.1986); aff'd on other grounds 820 F.2d 376 (11th Cir.1987) — that the Bankruptcy Code authorized the court to consider and, if appropriate, approve a plan proposing settlement of litigation over the debtor’s objection. The Court approved the dissemination of the Disclosure Statement and Second Amended Joint Plan of Reorganization at the same time as the debtor’s Amended Disclosure Statement and Second Amended Plan of Reorganization. Balloting was conducted and, when it became apparent that creditor support for the Joint Plan was overwhelming, the debt- or withdrew his plan from consideration.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re: SKYLINE RIDGE, LLC
Ninth Circuit, 2021
In Re BBL Group, Inc.
205 B.R. 625 (N.D. Alabama, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
105 B.R. 954, 1989 Bankr. LEXIS 1820, 1989 WL 126437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-grivas-casb-1989.