Matter of GAC Corp.

14 B.R. 252, 1981 Bankr. LEXIS 3649
CourtDistrict Court, S.D. Florida
DecidedJune 1, 1981
DocketBankruptcy 76-131-BK-NCR-B
StatusPublished
Cited by8 cases

This text of 14 B.R. 252 (Matter of GAC Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of GAC Corp., 14 B.R. 252, 1981 Bankr. LEXIS 3649 (S.D. Fla. 1981).

Opinion

MEMORANDUM DECISION, FEE APPLICATIONS

THOMAS C. BRITTON, Bankruptcy Judge.

Thirty-five applicants seek almost $10 million in fees and $312,349 in expenses in these consolidated Chapter X cases. The applications were heard on October 28, 29 and December 9 and 10,1980. A report and recommendation by the S.E.C., which had been requested by this court, was received on February 6, 1981. Response to those recommendations was heard on February 23.

The S.E.C. has recommended payment of $7.8 million in fees, of which $3.4 million has already been paid as interim allowances. The S.E.C. has also recommended payment of all requested expenses except in two cases.

The care with which the S.E.C. report has been prepared is obvious and greatly appreciated. I am aware of no significant misstatements of the facts and only minor misstatements of the applicable legal principles. In many instances, I have followed the S.E.C. recommendations. However, in other instances, I have found the S.E.C. to be overly generous with the reorganized company’s funds. The reasonable compensation fixed by this order for these 35 applicants totals $5,702,103 or $2,595,932 more than they have already received on account, together with additional expenses of $205,-287.90.

As may be required by Bankruptcy Rule 921(a) and in order to minimize the delay and uncertainty that results from appeals by several persons from an order that affects others, separate final and appealable orders will be entered on the several applications discussed in this memorandum. Such orders obviate appeals of the memorandum.

*254 The fee applications were questioned by the reorganized company which must bear this expense and by several minor bondholders represented by another attorney. The court’s trustees, the indenture trustees for the bondholders and the creditors’ committees, who nominally protect the interests of the creditors but who are now the major fee applicants, have only superficially questioned and have not opposed a single fee or expense application.

The almost complete unanimity of counsel does not, of course, relieve the court of its duty to protect the creditors. 3A Collier on Bankruptcy, (14th Ed.) ¶ 62.05[3] and v. 6A ¶ 13.02 n.18. Nor does it help the court with what Judge Jerome Frank properly called “the most unpleasant task a judge has”.

These fee applications are completely governed by Bankruptcy Rule 10-215, which in 1975 superseded the various statutory provisions from which it was derived. 28 U.S.C. § 2075; Matter of First Colonial Corp. of America, 5 Cir. 1977, 544 F.2d 1291, 1297. In determining bankruptcy fees in this circuit, at least, we are bound to apply the guidelines and principles most recently restated in Matter of First Colonial Corp. of America, Ibid. p. 1298. These standards are generally applicable to all bankruptcy cases and many have generally been long recognized in all federal courts. 6A Collier on Bankruptcy, (14th Ed.) ¶ 13.01 et seq.

The Bankruptcy Reform Act of 1978 includes a significant change in the standards governing fees in bankruptcy. Counsel in this case including the trustees’ attorneys have argued, in connection with earlier interim fee applications, that the more generous standards of the Reform Act are applicable here and that First Colonial is no longer authoritative. The S.E.C. has not squarely addressed this issue. It is apparent that this view influenced many of the pending applications. It should be clear, however, that the Reform Act has no application in this case and that First Colonial remains controlling as to this case.

Congress could readily have made the Reform Act applicable to all pending cases including this one. It not only declined to do so, it unambiguously directed that all decisions in all pending cases, which includes this one, be completely unaffected by the new legislation;

“A case commenced under the Bankruptcy Act, and all matters and proceedings in or relating to any such case, shall be conducted and determined under such Act as if this Act had not been enacted, and the substantive rights of parties in connection with any such bankruptcy case, matter, or proceeding shall continue to be governed by the law applicable to such case, matter, or proceeding as if the Act had not been enacted.” Pub.L. 95— 598, § 403(a).

First Colonial directs that “economy is the most important principle to be considered in awarding fees”:

“This does not mean that the bankruptcy judge should be parsimonious — that would be a false economy which would discourage competent counsel from offering their services to trustees in bankruptcy — but rather that he should award an amount which is ‘at the lower end of the spectrum of reasonableness.’ . . . [Ojffi-cers of the court. . .should not expect to be compensated as generously for their services as they might be were they privately employed.” Ibid., p. 1299.

In almost every instance, the fees sought in this case clearly exceed the First Colonial guidelines. Almost every attorney in this ease seeks a sum substantially greater than his customary billing rate to his private clients. Almost no attorney in this case has fixed his customary billing rate at less than $100 an hour for all service rendered in this case, even such mundane tasks as reviewing the pleadings and correspondence of other parties, attendance in court as observers, travel and preparing of fee applications.

This court has experienced no shortage of competent counsel during the five years this case has been pending. Few attorneys have received compensation in this court at and above $100 an hour during that period *255 and then only for recent services 1 or for extraordinary accomplishments, in litigation. Because of the trustee’s reluctance to litigate, this case has been unusually free of litigation and I am aware of no attorney’s accomplishment in this case that could really be termed extraordinary.

Bankruptcy Rule 10-215(a) requires that each applicant set forth “a detailed statement of (1) the services rendered”. Matter of First Colonial underscores this duty:

“To this end, each attorney seeking compensation should be required to file a statement which recites the number of hours worked and contains a description of how each of those hours was spent.” Ibid., p. 1299.

Very few of the applicants in this case complied with these essential requirements. Indeed, several applicants merely estimated the time they spent, a practice the court held to be “insufficient to support the award of fees” in First Colonial. Ibid. p. 1300. It is the applicant’s burden to justify his application. Where the applications have been insufficient, I have resolved against the applicant all reasonable doubt as to the nature, extent and necessity for the services which the applicant claims to have performed.

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14 B.R. 252, 1981 Bankr. LEXIS 3649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-gac-corp-flsd-1981.