In re Residential Capital, LLC

504 B.R. 358, 2014 Bankr. LEXIS 490, 59 Bankr. Ct. Dec. (CRR) 15, 2014 WL 470872
CourtUnited States Bankruptcy Court, S.D. New York
DecidedFebruary 6, 2014
DocketCase No. 12-12020 (MG) Jointly Administered
StatusPublished
Cited by1 cases

This text of 504 B.R. 358 (In re Residential Capital, LLC) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.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 Residential Capital, LLC, 504 B.R. 358, 2014 Bankr. LEXIS 490, 59 Bankr. Ct. Dec. (CRR) 15, 2014 WL 470872 (N.Y. 2014).

Opinion

MEMORANDUM OPINION AND ORDER GRANTING DEBTORS’ MOTION APPROVING PAYMENT OF SUCCESS FEE TO DEBTORS’ CRO

MARTIN GLENN, UNITED STATES BANKRUPTCY JUDGE

Pending before the Court is the Debtors’ Motion for Entry of an Order Approving Payment of Success Fee to Debtors’ Chief Restructuring Officer, Lewis Kruger (the “Motion,” ECF Doc. # 6172). In support of the Motion, the Debtors attach the Declaration of John Dempsey (the “Dempsey Deck,” ECF Doc. # 5229) and the Declaration of William J. Nolan (the “Nolan Deck,” ECF Doc. # 5230). The U.S. Trustee (the “UST”) filed an objection to the Motion (the “Objection,” ECF Doc. # 6215) and the Debtors replied (the “Reply,” ECF Doc. #6350). The Debtors previously filed the Debtors’ Motion Pursuant to Sections 105(a) and 363(b) of the Bankruptcy Code for an Order Approving Amendment to Engagement Letter with Debtors Chief Restructuring Officer, Lewis Kruger (the “CRO Amendment Motion,” ECF Doc. # 5227), supported by the Declaration of Pamela E. West (the ‘West Deck,” ECF Doc. # 5228), the Dempsey Deck, and the Nolan Deck1 The Amend[361]*361ment to the Engagement Letter, which explicitly provides for a success fee of $2.0 million, subject to a reasonableness determination under Bankruptcy Code section 330, was approved by the Court at a hearing on October 9, 2013 without objection from any party in interest, including the UST.

For the reasons explained below, the Court grants the Motion and approves the payment of the $2.0 million success fee to Mr. Kruger.

I. BACKGROUND

The Debtors, with the support of the Unsecured Creditors’ Committee (the “Creditors’ Committee”), propose paying Lewis Kruger (“Kruger”) a success fee in the amount of $2.0 million (the “Success Fee”). No creditor constituency has objected to the Success Fee. The Debtors argue that they arrived at this number based upon their “reasonable business judgment,” considering (1) the challenges presented in these chapter 11 cases, (2) the timing of Kruger’s appointment, and (3) the uniqueness of Kruger’s role in these cases, including his assumption of certain duties traditionally performed by the CEO, following Thomas Marano’s departure from that position in May 2013. (West Decl. ¶¶ 7-8.) The Debtors assert that under Kruger’s leadership, they engaged in extensive, successful settlement negotiations with the Creditors’ Committee and other major stakeholders in the case through mediation led by Judge Peck. (Motion ¶4.) The Debtors also point to Kruger’s “key testimony” regarding settlements and plan confirmation (“the Plan”),2 which the Debtors claim “laid the foundation for confirmation of the Plan.” (Id.) Additionally, the Debtors argue that Kruger played an integral role in allowing the Debtors to achieve a global consensus on the now-confirmed Plan. According to the Debtors, “Mr. Kruger’s reputation in the restructuring field and his objectivity concerning the Debtors’ pre-petition relationship with [the Debtors’ parent Ally Financial Inc. (“AFI”) ] made him uniquely qualified to lead the plan process,” and “the resolution of crucial disputes, including the AFI settlement, is due directly to Mr. Kruger’s leadership.” (Id. ¶ 5 (citing West Decl. ¶ 4).)

The Debtors appointed Kruger as CRO on February 7, 2013, to assist the Debtors in their attempts to achieve a consensual chapter 11 plan and negotiate with major creditor constituencies. Kruger’s Engagement Letter, executed between Kruger and the Debtors on February 11, 2013, set forth the terms and conditions of his employment, including:

In addition to regular fees, the Company and Mr. Kruger agree that Mr. Kruger may, in the future, request a Success Fee upon the confirmation of a plan of reorganization or upon the occurrence of a significant milestone to be later defined and determined in these Chapter 11 cases. The approval of the amount and the appropriateness of the Success Fee, if any, will be at the sole discretion of the Company’s Board of Directors after consultation with the Official Committee of Unsecured Creditors of the Chapter 11 Cases. The parties acknowledge that any Success Fee would require appropriate notice and ultimately Bankruptcy Court approval.

[362]*362(Engagement Letter at 3.) Also on February 11, 2013, the Debtors filed the CRO Retention Application with the Court, which stated:

In addition to the Hourly Rate and expense reimbursement, the Engagement Letter provides that Mr. Kruger will have the right to earn a fee for the successful completion of his engagement. Mr. Kruger and the Board are in the process of negotiating the amount of the Success Fee and the targets required to be achieved in order to earn such Success Fee. Once the parameters of the Success Fee are determined, the Debtors will separately seek Court approval for the Success Fee.

(CRO Retention Motion ¶ 29.) The CRO Retention Motion further states: “the Debtors propose that approval of any Success Fee will be considered at the close of Mr. Kruger’s engagement, subject to a reasonableness standard.” (Id. at n.3.)

The Court approved Kruger’s retention on March 5, 2013 (the “CRO Order,” ECF Doc. # 5318). The CRO Order provides that “[t]he Debtors are authorized to pay Mr. Kruger in such amounts and at such times as is provided in the Engagement Letter. Notwithstanding the previous provision, any Success Fee shall not be pre-approved under section 328(a) of the Bankruptcy Code, and the Debtors shall separately seek Court approval of the Success Fee.” (CRO Order ¶¶ 4-5.)

The issue of the Success Fee was not taken up immediately upon Kruger’s retention approval. Instead, Kruger focused on the issues surrounding the chapter 11 cases. After the Debtors filed a Plan with the Court, Kruger and the Debtors renewed discussions regarding the Success Fee. (Motion ¶ 23.) The Board of Directors requested that Mercer (US) Inc. (“Mercer”) and FTI Consulting, Inc. (“FTI”) each perform an analysis of success fees awarded to chief restructuring officers in comparable bankruptcy cases. (Id. ¶ 24; West Decl. ¶ 7.) Mercer and FTI examined the structure, prevalence, and appropriateness of success fees in those cases and presented their findings to the Board. (Motion ¶ 27; West Decl. ¶ 7.)

The Court granted the CRO Amendment Motion on October 9, 2013, determining that the amendment providing for the Success Fee (subject to section 330 review) was within the Debtors’ reasonable business judgment. (Oct. 9, 2013 Tr. 18:15-19 (“So the Court is very comfortable, in these circumstances, concluding that the debtors’ board has exercised appropriate business judgment in recommending — in negotiating the proposed amendment to the Kruger engagement letter and agreeing upon the amount.”).) Based upon those presentations and considering Kruger’s achievements in the cases, the Board determined that a $2.0 million Success Fee was reasonable and appropriate. (Id. (citing West Decl. ¶ 7).) The Board’s approval of the Success Fee nevertheless remained subject to the Court’s approval of the fee under the section 330 reasonableness standard.

The Debtors argue and the Court finds that the Board was well-informed by its legal and financial advisors when it considered and approved a Success Fee of $2.0 million to Kruger. In particular, the Board received detailed analyses and advice from Mercer and FTI.

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Bluebook (online)
504 B.R. 358, 2014 Bankr. LEXIS 490, 59 Bankr. Ct. Dec. (CRR) 15, 2014 WL 470872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-residential-capital-llc-nysb-2014.