New England Merchants National Bank v. O'donnell

540 F.2d 653
CourtCourt of Appeals for the Fourth Circuit
DecidedMarch 23, 1976
DocketNos. 75-1354, 75-1355
StatusPublished
Cited by3 cases

This text of 540 F.2d 653 (New England Merchants National Bank v. O'donnell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New England Merchants National Bank v. O'donnell, 540 F.2d 653 (4th Cir. 1976).

Opinion

DONALD RUSSELL, Circuit Judge.

These are appeals from orders of the District Court drastically reducing the allowance of counsel fees for the former trustee of the debtors in reorganization and the claim of the indenture trustee for certain services, costs and expenses. We reverse.

The reorganization proceedings, in connection with which these allowances were requested, commenced in January, 1971. The debtor Farrington Manufacturing Company was originally a manufacturer of jewelry and eyeglass cases but it had expanded into the development of credit cards, credit-card imprinters and optical-character recognition equipment. In the late 1950s it began to broaden even farther its operations and embarked upon a major, domestic and foreign acquisition program, becoming in the process a minor multinational corporation with two subsidiaries, Farrington Electronics, Inc. and Farrington Overseas Corporation, both of which are involved in the Chapter X proceedings. In its expanded operations, it incurred substantial indebtedness, including two debenture issues, one of which was placed domestically and the other with European investors. As it expanded, it experienced the not infrequent pains of other enterprises engaging in overexpansion into new fields, involving substantial technological problems; by 1969, it was faced with the inability to meet interest and principal payments of its debenture indebtedness incurred as a result largely of these expanded operations.

After fruitless efforts to solve these mounting financial difficulties, Chapter X proceedings were filed. Efforts to reorganize in the course of the proceedings as a continuing concern proved ultimately futile — though the trustee and his attorneys had made a good faith effort to effect a reorganization. The trustee and his attorneys did, however, effect an orderly liquidation of most of the debtors’ properties as going concerns. From this liquidation, cash assets of approximately $4,600,000 were created as against approximately $40,000,-000 in debts.

These appeals are concerned with the allowance of fees to counsel for the former trustee for services rendered up to June 30, 1973 and to the Indenture trustee, the New [656]*656England Merchants National Bank, as made by the District Court following a hearing on September 3, 1974. Prior to this hearing, both the Bankruptcy Judge, to whom the proceedings had been referred, and the Securities Exchange Commission (SEC) had filed their recommendations on such allowances. The SEC had recommended that counsel for the trustee be allowed a fee for services to June 30, 1973, of $575,000, plus all expenses; the Bankruptcy Judge’s recommendation was in the amount of $450,-000 for services rendered, together with full reimbursement of expenses. In their request for an allowance, counsel had asked for $673,200, along with $36,094.28 in reimbursement of expenses.1 So far as the indenture trustee was concerned, the SEC and the Bankruptcy Judge recommended $12,278 as full reimbursement of expenses incurred prior to bankruptcy, payable out of sums available to debenture holders; and for the period of bankruptcy, the SEC recommended a fee for services of $9,000, with $1,420 in expenses, both payable as administrative expenses of the estate, while the Bankruptcy Judge recommended $7,500 for these services along with reimbursement of expenses.

The District Court determined at the hearing that it wished to dispose of all fees to date of hearing and directed that the record be supplemented with a bill for services and expenses to date, to be filed with the Court within a week. On the basis of this record, the District Court entered its order allowing counsel for the trustee a fee of $350,000 in full payment for all services and expenses up to date of its order (i. e., November 14, 1974),- less the payment of $70,000 already received by counsel. It adopted the Bankruptcy Judge’s recommendations on the allowances in favor of the indenture trustee, with these two exceptions:

(a) The allowance for expenses during the pre-bankruptcy period was reduced by 50%;
(b) The allowance for the bankruptcy period was to be paid, not as an administrative expense, but out of the funds available for distribution among the Debenture holders.

Both counsel for the trustee and the indenture trustee have appealed. We shall treat the two appeals separately. In considering the appeal of counsel for the trustee, we must distinguish between the request of counsel for the trustee for an allowance on account of services rendered up to June 30, 1973, and for an allowance on account of services rendered between June 30, 1973, and November 14, 1974.

1. Claim of Counsel for Trustee

(a) Claim for Services up to June 30, 1973.

The Bankruptcy Act provides that counsel for a trustee in reorganization proceedings shall receive “reasonable compensation” for its services.

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540 F.2d 653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-england-merchants-national-bank-v-odonnell-ca4-1976.