In re Seven Counties Services, Inc.

496 B.R. 852, 60 Collier Bankr. Cas. 2d 1611, 2013 WL 3756486, 2013 Bankr. LEXIS 2823
CourtUnited States Bankruptcy Court, W.D. Kentucky
DecidedJuly 15, 2013
DocketNo. 13-31442(1)(11)
StatusPublished

This text of 496 B.R. 852 (In re Seven Counties Services, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Seven Counties Services, Inc., 496 B.R. 852, 60 Collier Bankr. Cas. 2d 1611, 2013 WL 3756486, 2013 Bankr. LEXIS 2823 (Ky. 2013).

Opinion

MEMORANDUM OPINION

JOAN A. LLYOD, Bankruptcy Judge.

This matter is before the Court on the Motion for Nunc Pro Tunc Authority (I) to Employ and Compensate Peritus Public Relations, LLC (“Peritus”) Pursuant to 11 U.S.C. § 1108 and (II) to Issue Payment for Reimbursable Expenses Incurred Pre-Petition (“the Application”), filed by Debt- or Seven Counties Services, Inc. (“the Debtor”). The Court considered the Application, the Objection to the Application of Kentucky Employers Retirement Systems (“KERS”) and Kentucky Retirement Systems (“KRS”) and the comments of counsel for the parties at the hearing held on the matter. For the following reasons, the Court will GRANT the Application.

FACTUAL AND PROCEDURAL BACKGROUND

On April 4, 2013, Debtor filed its Voluntary Petition seeking relief under Chapter 11 of the United States Bankruptcy Code. Along with the Petition, Debtor also filed a number of “first day motions” including a Motion for an Order Authorizing Banks to Honor Pre-Petition Checks (“Checks Motion”). The Checks Motion sought an order authorizing the payment of over 100 pre-petition checks listed on an attached exhibit which Debtor represented were necessary to Debtor’s ongoing operations. The checks ranged in value from $5.31 to $256,597.22. Included in that list was a [854]*854check issued to Peritas on April 4, 2013 in the amount of $14,839.

On April 5, 2013, following an expedited hearing, the Court entered an Order approving the Checks Motipn which authorized Fifth Third Bank and Republic Bank to honor the pre-petition checks listed therein.

Subsequent to entry of the Order, Debt- or states it was contacted by the United States Trustee’s office which indicated it would object to the employment of any professional who negotiates a check listed in the Order. Therefore, Debtor instructed Peritas to hold the check until the matter was clarified by the Court.

On May 17, 2013, Debtor filed the Application.

On June 10, 2013, KERS and KRS filed their Objection to the Application.

LEGAL ANALYSIS

Debtor seeks an order nunc pro tunc authorizing the employment of Peritas effective as of the date of the Petition, April 4, 2013. Debtor also seeks authority to issue payment to Peritas for reimbursable expenses incurred and paid pre-petition by Peritas to third party vendors on behalf of the Debtor.

The first issue before the Court is whether Peritas’ employment by Debtor is governed by 11 U.S.C. § 327. KERS and KRS contend § 327 applies and Peritas cannot be employed because it is not a “disinterested person” as required by the statute.

Peritas is a “full service communication firm that offers expertise in public affairs, public relations, marketing and creative services to connect clients with political officials, community leaders and other targeted audiences.” Application, p. 2. Peri-tas and Debtor entered into an Agreement fer Services (“Agreement”) on- March 15, 2012. The Agreement summarizes Peri-tas’ task as providing “public relations and public affairs support in Kentucky on all issues related to the ongoing effort to affect changes in their [Debtor] involvement in the Kentucky Retirement System.” See, Agreement attached as Exhibit to the Application. The work is to include lobbying, third party advocacy and support of Debtor’s efforts in restructuring its retirement plans and media relations. Peritas is to be paid a monthly retainer in the amount of $3,750, plus reimbursement for reasonable and necessary expenses.1

The Order entered by the Court on the Checks Motion authorized a payment to Peritas in the amount of $14,839.74. Debt- or explained in the Application that $11,676.82 of that figure represents reimbursable expenses incurred and paid by Peritas pre-petition to third party vendors on behalf of the Debtor.

The Debtor states that subsequent to the entry of the Order on the Checks Motion, the United States Trustee’s Office contacted Debtor and indicated it would object to the employment of any professional who negotiates a check listed in the Order. Therefore, Debtor instructed Peri-tas to hold the check until the matter is resolved through the Application.

The Debtor acknowledges that Peritas’ representatives are “professional persons” due to their “special knowledge and skill” as court’s have interpreted that term within the context of 11 U.S.C. § 327(a). Debtor, however, contends that because Peritas is not assisting Debtor with any of its enumerated duties of a debtor-in-possession as set forth in 11 U.S.C. § 1107, its employment is not governed by § 327 and does not require Court approval. Debtor [855]*855relies on a line of cases which hold that only professionals whose duties are related to the administration of the estate, not those performing services related to the day-to-day operations of the debtor’s business, are subject to the requirements of § 327(a). See, Matter of Seatrain Lines, Inc., 13 B.R. 980 (Bankr.S.D.N.Y.1981), In re Johns-Manville Corp., 60 B.R. 612 (Bankr.S.D.N.Y.1986) and cases cited in the Application, p. 7.

While other courts have analyzed this issue in a variety ways, i.e. “the qualitative analysis”, Seatrain, 13 B.R. 980 (Bankr.S.D.N.Y.1981), and the “quantitative analysis”, In re Semenza, 121 B.R. 56, 57 (Bankr.D.Mont.1990), the Court finds the better approach is set forth in the case of In re First Merchants Acceptance Corp., 1997 WL 873551 (D.Del.1997). There, the court set forth a list of factors to consider which combines elements of both the qualitative and quantitative approaches. These factors are: (1) whether the employee controls, manages, administers, invests, purchases or sell assets that are significant to the debtor’s reorganization; (2) whether the employee is involved in negotiating the terms of a plan of reorganization; (3) whether the employment directly relates to the type of work carried out by the debtor or to the routine maintenance of the debtor’s business operations; (4) whether the employee is given discretion or autonomy to exercise his or her own professional judgment in some part of the administration of the debtor’s estate; (5) the extent of the employee’s involvement in the administration of the debtor’s estate; and (6) whether the employee’s services involve some degree of special knowledge or skill, so that the employee can be considered a “professional” within the ordinary meaning of the term. No one factor is dispositive and the factors should be weighed against each other and considered in toto. In the final analysis, the real inquiry focuses on the type of duties performed and whether any special skills or training are necessary to carry out these duties. In re Triplett, 2008 WL 2123743 (Bankr.E.D.Tenn.2008), citing In re Am. Tissue, Inc., 331 B.R. 169, 173-74 (Bankr.D.Del.2005).

In Merchants,

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Related

In Re American Tissue, Inc.
331 B.R. 169 (D. Delaware, 2005)
In Re Semenza
121 B.R. 56 (D. Montana, 1990)
Matter of Seatrain Lines, Inc.
13 B.R. 980 (S.D. New York, 1981)

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Bluebook (online)
496 B.R. 852, 60 Collier Bankr. Cas. 2d 1611, 2013 WL 3756486, 2013 Bankr. LEXIS 2823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-seven-counties-services-inc-kywb-2013.