Opinion
Substantively Consolidated Under Case No. 302-08915
November 18, 2003
This matter is before the Court upon the Application of Mark Manner and Harwell Howard Hyne Gabbert Manner, P.C. for Allowance of Compensation and Reimbursement of Expenses Pursuant to 11 U.S.C. § 503(b)(4) and the objections of the U.S. Trustee thereto. It appears to the Court from signature of counsel for Harwell Howard Hyne Gabbert Manner, P.C. ("H3GM") that notice was given pursuant to L.B.R. 9013-1 and no other objections were filed. It further appears to the Court from signatures of counsel for H3GM and for the U.S Trustee that the objections of the U.S. Trustee are resolved upon the terms provided for below There being no further notice required and H3GM and the U.S. Trustee being in agreement to the following provisions:
IT IS HEREBY ORDERED that:
1. The application of H3GM is granted solely because each and every one of the following factors is present in this case: (i) the confirmed plan provides for a 100% return, including interest, to all creditors, thereby obviating the usual need to minimize administrative expenses to enhance the return to creditors; (ii) the Debtors have already paid unsecured creditors approximately sixty (60) percent of the required plan payments thereby being ahead of the scheduled payout to unsecured creditors under the confirmed plan; (iii) the confirmed plan, which was substantially similar to the plan of reorganization filed on the petition date in this case, provides for the retention of all existing equity interests without the requirement for any new value; (iv) this was a case of first impression in this district; (v) H3GM had relied upon the Vergos v. Timber Creek, Inc., 200 B.R. 624 (W.D. Tenn. 1996) in determining the ethical barriers constructed pre-petition were sufficient; (vi) it is the position of the Debtors, the Unsecured Creditors Committee, and the largest unsecured creditor that H3GM rendered valuable services to the Debtor during the time for which H3GM seeks compensation; and (vii) in Michel v. Federated Dept. Stores, Inc., 44 F.3d 310 (6th Cir. 1994) the Sixth Circuit Court of Appeals held under similar circumstances that, in the absence of a definitive bankruptcy precedent, equity may allow compensation of a professional for services rendered up to the date of the disqualification in the case of first impression; and (viii) these are peculiar and unique facts not likely to co-exist in future cases in light of the disqualification decision in this case.
2. H3GM shall be allowed fees of $187,126.75 (the "Allowed Fees") and expenses of $20,400.76 (the "Allowed Expenses"), for total compensation of $207,527.01 pursuant to 11 U.S.C. § 503(b)(1)(A). The Allowed Fees represent an agreed reduction of $41,106.50.
3. Upon entry of this Order, sixty percent (60%) of the Allowed Fees and one hundred percent (100%) of the Allowed Expenses may be paid.
4. The balance of the Allowed Fees is payable as follows:
(a) twenty percent (20%) on either December 31, 2003, provided the distribution made to unsecured creditors on that date results in payment of at least eighty percent (80%) of required plan payment to the unsecured creditors or such later date as the unsecured creditors receive at least eighty percent (80%) of the required plan payments to unsecured creditors; and
(b) twenty percent (20%) on either June 30, 2004, provided the distribution made to unsecured creditors on that date results in payment of at least one hundred percent (100%) of required plan payments to the unsecured creditors or such later date as the unsecured creditors receive at least one hundred percent (100%) of the required plan payments to the unsecured creditors.
IT IS SO ORDERED this.