In re Persaud

496 B.R. 667, 2013 WL 360535, 2013 U.S. Dist. LEXIS 12674
CourtDistrict Court, E.D. New York
DecidedJanuary 30, 2013
DocketNo. 12 CV 3337
StatusPublished
Cited by8 cases

This text of 496 B.R. 667 (In re Persaud) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Persaud, 496 B.R. 667, 2013 WL 360535, 2013 U.S. Dist. LEXIS 12674 (E.D.N.Y. 2013).

Opinion

ORDER

JOHN GLEESON, District Judge.

This is an appeal from an Order entered on March 5, 2012 by the United States Bankruptcy Court in this district (Stong, J.) authorizing the retention of Troutman Sanders, LLP (“Troutman”) as general and bankruptcy counsel for John S. Pereira, the Chapter 7 Trustee for the Estate of Debtor Christine Persaud (hereinafter the “Estate”). Appellant Abraham Klein (“Klein”), who purports to be one of Persaud’s creditors in the underlying Bankruptcy, objected to the retention of Troutman on grounds that Troutman represented him in connection with a proposed land deal in China in 2008 and, as a [670]*670result of this prior engagement, gained access to confidential information that can be used in pursuing claims against him in the Chapter 7 proceeding.

After full briefing and an evidentiary hearing spanning nine days over several months, Judge Stong issued a Memorandum Decision overruling Klein’s objections, approving Troutman’s retention, and denying Klein’s motion for reconsideration. See Mem. Decision, March 5, 2012, ECF No. 1-61. Klein appeals from this decision.1 For the reasons that follow, I affirm the Bankruptcy Court in all respects.

A. Jurisdiction and Standard of Review

Appeals from cases originating in the bankruptcy courts are governed by 28 U.S.C. § 158, which vests district courts with appellate jurisdiction over bankruptcy court rulings. While final orders of the bankruptcy court may be appealed to the district court as of right, see 28 U.S.C. § 158(a)(1), appeals from non-final bankruptcy court orders may be taken only “with leave” of the district court, see id. § 158(a)(3). In this Circuit, a “flexible standard of finality” applies in bankruptcy cases. In re AroChem Corp., 176 F.3d 610, 620 (2d Cir.1999). Since the bankruptcy court order at issue authorized a Trustee to retain counsel and indicated that this decision would not be reconsidered, the order is final; accordingly, I have appellate jurisdiction pursuant to 28 U.S.C. § 158(a)(1) to review it. See In re Kurtzman, 194 F.3d 54, 57 (2d Cir.1999); In re AroChem Corp., 176 F.3d at 620.

When a district court functions in its capacity as an appellate court in a bankruptcy case, the order of the bankruptcy court is subject to plenary review. Thus, I “independently review the factual determinations and legal conclusions of the bankruptcy court,” In re PCH Assoc., 949 F.2d 585, 597 (2d Cir.1991) (citation omitted). “Findings of fact ... shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses.” Fed. R. Bankr.P. 8013. The bankruptcy court’s legal conclusions are evaluated de novo. In re Momentum Mfg. Corp., 25 F.3d 1132, 1136 (2d Cir.1994).

B. Background

Section 327(a) of the Bankruptcy Code provides the basic authorization for the retention of professionals by the trustee:

Except as otherwise provided in this section, the trustee, with the Court’s approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee’s duties under this title.

11 U.S.C. § 327(a).

Under this provision, a trustee’s choice of counsel is subject to the evaluation and approval of the bankruptcy court. See In re Vouzianas, 259 F.3d 103, 107-08 (2d Cir.2001). “In exercising its approval function, however, the bankruptcy court should interfere with the trustee’s choice of counsel only in the rarest cases, such as when the proposed attorney has a conflict of interest, or when it is clear that the best interest of the estate would not be served [671]*671by the trustee’s choice.” In re Smith, 507 F.3d 64, 71 (2d Cir.2007) (internal quotation marks and text modification omitted). Because “the relationship between attorney and client is highly confidential, demanding personal faith and confidence in order that they may work together harmoniously,” courts give trustees wide breadth in selecting counsel. See In re Mandell, 69 F.2d 830, 831 (2d Cir.1934).

The resolution of a retention dispute is a fact-intensive inquiry, subject to case-by-case determinations. As the Second Circuit stated in AroChem, “[w]hen evaluating proposed retention, a bankruptcy court should exercise its discretionary powers over the approval of professionals in a manner which takes into account the particular facts and circumstances surrounding each case and the proposed retention before making a decision.” 176 F.3d at 621 (internal quotation marks omitted); see also In re Harold & Williams Dev. Co., 977 F.2d 906, 910 (4th Cir.1992) (“[T]he discretion of the bankruptcy court must be exercised in a way that it believes best serves the objectives of the bankruptcy system. Among the ultimate considerations for the bankruptcy courts in making these decisions must be the protection of the interests of the bankruptcy estate and its creditors, and the efficient, expeditious, and economical resolution of the bankruptcy proceeding.”).

1. The Facts

On May 26, 2010, Persaud filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code. By order dated April 8, 2011, her Chapter 11 case was converted to a case under Chapter 7 pursuant to 11 U.S.C. § 1112(b).2 By Notice of Appointment dated April 13, 2011, John S. Pereira (hereinafter the “Trustee”) was appointed the Chapter 7 Trustee of the Estate. See Notice of Appointment of Trustee, ECF No. 1-2.

Pursuant to 11 U.S.C. § 327 and Rule 2014 of the Federal Rules of Bankruptcy Procedure, the Trustee initially sought authorization for the retention and employment of the law firm Pereira & Sinisi, LLP to assist in the administration of the Estate. See Application, June 17, 2011, ECF No. 1-3.

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Cite This Page — Counsel Stack

Bluebook (online)
496 B.R. 667, 2013 WL 360535, 2013 U.S. Dist. LEXIS 12674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-persaud-nyed-2013.