In Re: Smart World Technologies ( 2009 )


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  •      08-1721-bk
    In Re: Smart W orld Technologies
    1
    2                             UNITED STATES COURT OF APPEALS
    3
    4                                      FOR THE SECOND CIRCUIT
    5
    6
    7
    8                                        August Term, 2008
    9
    10   (Argued: November 20, 2008                                           Decided: January 6, 2009)
    11
    12                                       Docket No. 08-1721-bk
    13
    14
    15                            IN RE : SMART WORLD TECHNOLOGIES, LLC,
    16
    17                                                                                           Debtor,
    18
    19                          RIKER, DANZIG , SCHERER, HYLAND & PERRETTI,
    20
    21                                                                                Plaintiff-Appellee,
    22
    23                                                - v. -
    24
    25
    26                          OFFICIAL COMMITTEE OF UNSECURED CREDITORS,
    27
    28                                                                            Defendant-Appellant.
    29
    30
    31   Before:
    32                   SACK and WESLEY , Circuit Judges, and KAHN , District Judge.1
    33
    34        Appeal from a judgment of the United States District Court for the Southern District of
    35   New York (Cedarbaum, J.) awarding Appellee $2,142,006.27 in fees and $73,981.18 in
    1
    The Honorable Lawrence E. Kahn, United States District Court for the Northern District
    of New York, sitting by designation.
    -1-
    1   expenses. We affirm, holding that the bankruptcy court’s Retention Order was a pre-approval
    2   within the meaning of 
    11 U.S.C. § 328
    (a), and that no subsequent developments warranted
    3   modifying the terms of Appellee’s retention.
    4
    5
    6                  LAURENCE MAY , (Michele E. Cosenza, of counsel), Cole, Schotz, Meisel, Forman
    7                       & Leonard, P.A., New York, NY, for Appellant.
    8
    9                  J. ALEX KRESS, (Glenn D. Curving, of counsel, Kevin J. Larner, on the brief),
    10                         Riker, Danzig, Scherer, Hyland & Perretti, LLP, Morristown, NJ, pro se.
    11
    12
    13
    14   WESLEY , Circuit Judge:
    15          This appeal poses a question of first impression. How does a court determine whether a
    16   bankruptcy court has “pre-approved” a debtor’s retention of a professional pursuant to 11 U.S.C.
    17   § 328(a)? In this case, we find that the bankruptcy court’s order was a section 328(a) pre-
    18   approval, and that no later developments rendered that approval improvident, and therefore
    19   affirm the judgment of the United States District Court for the Southern District of New York
    20   (Cedarbaum, J.).
    21                                            BACKGROUND
    22          Between 1996 and 2000, Smart World Technologies, LLC, Freewwweb, LLC, and Smart
    23   World Communications, Inc. (collectively, “Smart World”) provided free dial-up Internet service
    24   to subscribing customers. When it failed to generate a profit, Smart World filed for bankruptcy
    25   in 2000 and agreed to sell its subscriber list – its most valuable asset – to Juno Online Services,
    26   Inc. (“Juno”) as part of the bankruptcy proceeding. Shortly after the United States Bankruptcy
    -2-
    1   Court for the Southern District of New York (Blackshear, J.) approved the sale of the subscriber
    2   list to Juno, Smart World alleged that Juno was undercounting the number of subscribers.
    3          On August 16, 2000, Juno filed an adversary complaint seeking declaratory relief that its
    4   conduct was proper and its obligation to Smart World was limited only to paying for qualified
    5   subscribers. In response, Smart World’s bankruptcy counsel began negotiating to retain
    6   Appellee, the law firm of Riker, Danzig, Scherer, Hyland & Perretti, LLP (“Riker Danzig”), to
    7   represent Smart World in the Juno litigation in an effort to maximize the sale price from Juno.
    8   These negotiations culminated in a contingency fee proposal memorialized in an October 31,
    9   2000 letter from Riker Danzig to Smart World’s bankruptcy counsel. Smart World then applied
    10   to the bankruptcy court for an order approving the retention of Riker Danzig as special litigation
    11   counsel “pursuant to 
    11 U.S.C. §§ 327
     and 328,” the sections of the Bankruptcy Code providing
    12   for pre-approval of compensation for debtors’ counsel.
    13          In response to several objections to the conditions of the retention, Riker Danzig agreed
    14   to modify the terms at a November 14, 2000 hearing before Judge Blackshear, informing the
    15   court that the amended terms were “basically worked out in the hallway before we were called.”
    16   WorldCom, Smart World’s largest creditor, told the court that its initial concern was that because
    17   it and other creditors were already involved in settlement negotiations with Juno, Riker Danzig
    18   might be positioned to reap a “huge windfall” if those negotiations culminated in a monetary
    19   settlement. However, it explained that the revised contingency fee proposal was “a nice
    20   compromise” because it provided an incentive for all parties to reach a quick resolution.
    21          At the hearing, Judge Blackshear preliminarily approved this revised proposal orally from
    -3-
    1   the bench, stating that the “contingency . . . basically addresses the reasonableness . . . . If he’s
    2   willing to take that chance, on success being paid and unsuccess not getting anything, that to me
    3   addresses the reasonableness of his fee . . . [and] I’m not going to review the time records of the
    4   individual merely because of the fact that he agreed to a contingency fee.” Nonetheless, Judge
    5   Blackshear required Riker Danzig to submit a written fee application incorporating the modified
    6   terms. The following day, November 15, the terms were documented in a letter from James
    7   Rothschild, a lawyer at Riker Danzig, to Smart World’s bankruptcy counsel, (the “Rothschild
    8   Letter”), which read as follows:
    9           This is to confirm the results of the Court hearing yesterday wherein my October
    10           31, 2000 letter to you was slightly modified. As per the Agreement placed before
    11           the Honorable Cornelius Blackshear, Riker, Danzig, Sherer, Hyland & Perretti,
    12           LLP (“Riker Danzig”) will handle disputes between the debtor and Juno Online
    13           Services (“Juno”) on a contingent fee basis. Riker Danzig will take the case in
    14           consideration of the following payment terms: 1) Riker Danzig will be paid all
    15           expenses off of the top any recovery and, after payment of expenses, will receive
    16           33-1/3% of the first $1,500,000 obtained from Juno[]; 2) Riker Danzig’s share of
    17           funds in excess of $1,500,000 but less than $8 Million will be (a) 0% if the
    18           litigation lasts less than 6 months, (b) 10% if the litigation lasts from 6 months to
    19           9 months, (c) 20% if the litigation lasts between 9 months and 12 months, (d) 37%
    20           if the litigation lasts more than 12 months; and 3) Riker Danzig will receive 37%
    21           of all funds received in excess of $8 Million. Finally, Riker Danzig’s fee for any
    22           monies received after 18 months shall be 33 1/3%.
    23   The following day, November 16, 2000, Judge Blackshear issued his Retention Order. Although
    24   the Order did not specifically cite 
    11 U.S.C. § 328
    , it authorized Smart World to retain Riker
    25   Danzig in connection with the Juno litigation and stated that all compensation “shall be fixed
    26   upon further application of this Court and shall be in accordance with the within application and
    27   the letter of James S. Rothschild, Jr., Esq., dated November 15, 2000, and annexed hereto and
    -4-
    1   made a part hereof.”2
    2          In early 2001, Juno informed Riker Danzig that it had reached a settlement with Smart
    3   World’s creditors. However, at a February 2001 hearing, the bankruptcy court determined that a
    4   settlement had not actually been reached, but was sufficiently close at hand to grant Juno’s
    5   request to stay the litigation. That stay remained in place for the next two years.
    6          In May 2003, Juno and the creditors filed a joint motion to settle the adversary proceeding
    7   under a settlement plan in which Juno would pay $5.5 million to Smart World’s creditors. Smart
    8   World opposed the settlement, arguing that it had not been able to value its claims against Juno
    9   without discovery, and that the creditors lacked standing to settle the proceeding over its
    10   objection. Although the bankruptcy court disagreed and approved the settlement, this Court
    11   reversed, holding that Smart World’s creditors did not have standing to settle the adversary
    12   proceeding over the objections of the debtor-in-possession. See In re Smart World Technologies,
    13   LLC, 
    423 F.3d 166
     (2d Cir. 2005) (hereinafter, “Smart World I”).
    14          Back in bankruptcy court, Smart World’s creditors filed a plan of liquidation, which now
    15   included a $6.5 million settlement with Juno. Once again, Smart World – through Riker Danzig
    16   – objected to the proposed settlement, arguing that it continued to undervalue the claim by
    17   undercounting the number of subscribers. The bankruptcy court disagreed and confirmed the
    18   plan, including the settlement.
    19          Riker Danzig then applied for a fee award of $2,320,959.02 plus expenses. After a
    2
    Appellant notes that the letter was not actually annexed to the order.
    -5-
    1   hearing, the bankruptcy court (Peck, J.) found that Judge Blackshear had pre-approved Riker
    2   Danzig’s fee pursuant to 
    11 U.S.C. § 328
    (a), which allows a court to alter a pre-approved fee
    3   only if its terms and conditions “prove to have been improvident in light of developments not
    4   capable of being anticipated at the time of the fixing of such terms and conditions.” 
    11 U.S.C. § 5
       328(a). However, Judge Peck found four events incapable of being anticipated: (1) the
    6   divergence of positions between Smart World and its creditors; (2) the fact that Riker Danzig
    7   took instructions directly from the officers and majority shareholders of Smart World; (3) the
    8   unusually prolonged litigation; and (4) the fact that Riker Danzig was an obstacle, not an asset, to
    9   the approval of the settlement. As a result, the bankruptcy court reduced Riker Danzig’s award
    10   to $1,207,816.00 plus $78,489.18 in expenses.
    11          On appeal to the district court, Judge Cedarbaum reversed in a thorough and thoughtful
    12   opinion. See In re Smart World Technologies, LLC, 
    383 B.R. 869
     (S.D.N.Y. 2008) (hereinafter,
    13   “Smart World II”). The district court agreed with the bankruptcy court that the fee agreement
    14   was pre-approved under section 328, but disagreed that there had been any developments
    15   incapable of being anticipated. 
    Id. at 877-78
    . The court distinguished between “unanticipated”
    16   events and events “not capable of being anticipated,” noting that a court may set aside a
    17   pre-approved fee under section 328(a) only if the latter occurred. 
    Id. at 877
    . The court held that
    18   divergent litigation positions were to be expected since a debtor and its creditors may very well
    19   disagree on matters in the course of a bankruptcy proceeding; that the length of the litigation was
    20   largely a product of the two-year stay imposed by the court and the successful appeal to the
    21   Second Circuit; and that the success of the appeal justified Riker Danzig’s litigation strategy. 
    Id.
    -6-
    1   at 877-78. As a result, the district court reversed and ordered a fee award of $2,142,006.27 and
    2   $73,981.18 in expenses.3 
    Id. at 879
    .
    3                                              DISCUSSION
    4           In 1978, Congress amended the Bankruptcy Code in part to make it easier for debtors in
    5   bankruptcy to retain professionals for discrete matters. See Bankruptcy Reform Act of 1978,
    6   Pub. L. No. 95-598, 
    92 Stat. 2549
     (1978). The Act “effect[ed] a significant departure from prior
    7   practice under the Bankruptcy Act in which professionals were entitled to reasonable
    8   compensation determined on a strictly quantum merit basis.” Collier on Bankruptcy ¶ 328.02
    9   (Alan N. Resnik & Henry J. Sommer, eds., 15th ed. rev.).
    10           Section 327(a) of the Code authorizes bankruptcy trustees, with court approval, to
    11   “employ one or more attorneys, accountants, appraisers, auctioneers, or other professional
    12   persons . . . to represent or assist the trustee in carrying out the trustee’s duties.” 
    11 U.S.C. § 13
       327(a). Sections 328 and 330 establish a two-tiered system for judicial review and approval of
    14   the terms of the professional’s retention. Section 330 authorizes the bankruptcy court to award
    15   the retained professional “reasonable compensation” based on an after-the-fact consideration of
    16   “the nature, the extent, and the value of such services, taking into account all relevant factors.”
    17   
    11 U.S.C. § 330
    (a). However, section 328(a) permits a bankruptcy court to forgo a full post-hoc
    18   reasonableness inquiry if it pre-approves the “employment of a professional person under section
    19   327 . . . on any reasonable terms and conditions of employment, including on a retainer, on an
    3
    Riker Danzig did not cross-appeal from that portion of the district court’s judgment
    awarding it less in fees than it sought.
    -7-
    1   hourly basis, on a fixed or percentage fee basis, or on a contingent fee basis.” 
    Id.
     § 328(a).
    2   Where the court pre-approves the terms and conditions of the retention under section 328(a), its
    3   power to amend those terms is severely constrained. It may only “allow compensation different
    4   from the compensation provided under such terms and conditions after the conclusion of such
    5   employment, if such terms and conditions prove to have been improvident in light of
    6   developments not capable of being anticipated at the time of the fixing of such terms and
    7   conditions.” Id. These two inquiries are mutually exclusive, as “[t]here is no question that a
    8   bankruptcy court may not conduct a § 330 inquiry into the reasonableness of the fees and their
    9   benefit to the estate if the court already has approved the professional’s employment under 11
    
    10 U.S.C. § 328
    .” In re B.U.M. Int’l, Inc., 
    229 F.3d 824
    , 829 (9th Cir. 2000).
    11                                                     I
    12          The first question is whether Judge Blackshear’s Retention Order was a pre-approval
    13   under section 328(a). Like the bankruptcy and district courts, we conclude that it was.
    14          Although this Court has never discussed what kind of a showing is required to deem a
    15   retention order a pre-approval within the meaning of 
    11 U.S.C. § 328
    (a), several of our sister
    16   circuits have. In Zolfo, Cooper & Co. v. Sunbeam-Oster Co., 
    50 F.3d 253
     (3d Cir. 1995), the
    17   Third Circuit held that the burden rests “on the applicant to ensure that the court notes explicitly
    18   the terms and conditions [of the retention] if the applicant expects them to be established at that
    19   early point.” 
    Id. at 262
    . The Ninth Circuit adopted a even stricter approach, holding that “[t]o
    20   ensure that § 328 governs the review of a professional’s fees, a professional must invoke the
    21   section explicitly in the retention application.” In re Circle K Corp., 
    279 F.3d 669
    , 674 (9th Cir.
    -8-
    1   2002). In addition, the Ninth Circuit has required that the pre-approval be final, and not merely
    2   preliminary or conditional; retention orders reserving final substantive approval until after the
    3   representation concluded were not sufficiently definite to fall within the scope of section 328(a).4
    4   See 
    id. at 673
    ; B.U.M., 
    229 F.3d at 830
    .
    5          The Sixth Circuit rejected this approach as being “too constrictive” and adopted a
    6   “totality of the circumstances” test. In re Airspect Air, Inc., 
    385 F.3d 915
    , 921-22 (6th Cir.
    7   2004). The court noted that the Bankruptcy Code does not “mandate that the application
    8   specifically mention § 328 or that the court’s approval order expressly and unambiguously state
    9   specific terms and conditions.” Id. at 921. However, because a court cannot merely “infer[] §
    10   328 pre-approval from the simple mention of a fee agreement in the debtor’s motion for
    11   appointment,” it must look at a multitude of factors, such as “whether the debtor’s motion for
    12   appointment specifically requested fee pre-approval, whether the court’s order assessed the
    13   reasonableness of the fee, and whether either the order or the motion expressly invoked § 328.”
    14   Id. at 921-22.
    15          We agree with the Sixth Circuit and hold that pre-approval of a fee agreement under 11
    
    16 U.S.C. § 328
    (a) depends on the totality of the circumstances, including whether the
    17   professional’s application, or the court’s order, referenced section 328(a), and whether the court
    18   evaluated the propriety of the fee arrangement before granting final, and not merely preliminary,
    4
    The order in B.U.M. provided that “all fees and costs . . . are subject to Court approval,”
    
    229 F.3d at 826
    , while the order in Circle K stated that “all fees . . . remain subject to subsequent
    Bankruptcy Court approval in a final fee application to be submitted to the Court,” 
    279 F.3d at 673
     (emphasis omitted).
    -9-
    1   approval.
    2          Under the circumstances of this case, we have little difficulty finding that the bankruptcy
    3   court’s Retention Order was a section 328(a) pre-approval. As an initial matter, Smart World’s
    4   application expressly invoked section 328(a): “The Debtors wish to retain the law firm of Riker,
    5   Danzig, Scherer, Hyland & Perretti, LLP . . . as their Special Counsel in this Chapter 11
    6   proceeding pursuant to 
    11 U.S.C. §§ 327
     and 328 . . . .” This language was incorporated into the
    7   Retention Order, authorizing payment in accordance with the debtor’s application and the
    8   Rothschild Letter.5 The United States Trustee’s objection also recognized that the application
    9   was made under section 328(a). Moreover, as noted above, at the hearing, Judge Blackshear
    10   made several comments suggesting that his pre-approval was made under section 328(a), noting
    11   that “[t]he contingency fee . . . basically addresses the reasonableness that if he doesn’t bring in
    12   anything, he doesn’t get paid at all. [Whereas] if he was under [sections] 330 or 331 we would
    13   be liable for his daily time charges.” Thus, the court specifically noted that section 330 of the
    14   Code – the alternative to section 328(a) pre-approval – did not apply.
    5
    Appellant submits that both courts below failed to consider the fact that the Retention
    Order incorporated not only the Rothschild Letter, but also Smart World’s application for
    retention, which states that “Riker Danzig has agreed to take up the matters concerning the
    disputes with Juno on a contingency basis, with no funds required . . . unless Riker is successful
    in obtaining a result for the estates.” According to Appellant, in order to recover anything, Riker
    Danzig must have brought about the successful result, not merely observed success for which it
    was not responsible. However, the Rothschild Letter clearly states that Riker Danzig’s recovery
    would come from any funds obtained from Juno after it was retained as counsel. Second, as the
    district court noted, Riker Danzig was responsible for Smart World’s successful recovery: “[T]he
    settlement was negotiated under the threat of litigation by Riker Danzig, [and] after Riker
    Danzig’s successful efforts to overturn the first settlement on appeal, the ultimate settlement was
    increased by about one fifth (from $5.5 million to $6.5 million).” Smart World II, 383 B.R. at
    875 n.2.
    -10-
    1          Appellant argues that the court’s approval was not final or unambiguous because the
    2   Retention Order states that “any and all compensation to be paid to Riker . . . shall be fixed upon
    3   further application of this Court.” According to Appellant, this language suggests that the
    4   bankruptcy court would retain some final approval over the reasonableness of the fee before it
    5   was permitted to be paid. This overlooks the fact that the sentence concludes by stating that the
    6   fee “shall be in accordance with the within application and the letter of James S. Rothschild, Jr.,
    7   Esq., dated November 15, 2000 . . . .” Section 328(a) concerns only judicial approval of the
    8   terms of a professional’s representation, not the relatively ministerial matter of his or her
    9   payment. The requirement that Riker Danzig “further appl[y]” for payment was entirely pro
    10   forma, as the court had already fixed and approved the calculation of the amount to be paid.
    11   Unlike the orders in B.U.M. and Circle K, Riker Danzig’s Retention Order did not provide for
    12   any additional layer of substantive approval prior to payment. In fact, Judge Blackshear
    13   specifically told the parties at the hearing that the court would not “review the time records of the
    14   individual . . . because of the fact that he agreed to a contingency fee.” Thus, we agree with both
    15   courts below in concluding that the Retention Order was a pre-approval under section 328(a).
    16                                                     II
    17          The second, related question is whether there exist any grounds for disturbing the court’s
    18   section 328(a) pre-approval. Under section 328(a), a pre-approved fee arrangement may only be
    19   altered if proven “to have been improvident in light of developments not capable of being
    20   anticipated at the time” of the pre-approval. Surprisingly few cases have construed this language,
    21   but those that have make it evident that it is a high hurdle to clear. According to the Fifth
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    1   Circuit, section 328(a) requires “the bankruptcy court . . . [to] determine[] whether developments,
    2   which made the approved fee plan improvident, had been incapable of anticipation at the time the
    3   award was approved.” See In re Barron, 
    325 F.3d 690
    , 693 (5th Cir. 2003). For example,
    4   simply because the size and scope of a settlement had not actually been anticipated, it does not
    5   follow that it was incapable of anticipation. See 
    id. at 693-94
    . Similarly, the fact that
    6   contingency fees may appear excessive in retrospect is not a ground to reduce them because
    7   “early success by counsel is always a possibility capable of being anticipated.” In re Gilbertson,
    8   No. 06-C-610, 
    2007 WL 433096
    , at *5 (E.D. Wisc. Feb. 4, 2007).
    9            We agree with the district court that none of the four developments cited by the
    10   bankruptcy court were incapable of being anticipated (as opposed to merely not actually
    11   anticipated) in November 2000. Two of the developments mentioned by the bankruptcy court
    12   were the “divergent positions regarding litigation and settlement strategy . . . between the Debtor
    13   and the Committee” and the desire of the former to benefit its equity holders rather than its
    14   creditors. Yet, as Judge Cedarbaum noted, “some degree of antagonism and animosity between a
    15   debtor and creditor can be expected in any bankruptcy proceeding.” Smart World II, 383 B.R. at
    16   877 (quoting In re Marvel Entm’t Group, 
    140 F.3d 463
    , 474 (3d Cir. 1998)). After all, both
    17   entities seek to maximize their shares of a finite (and always inadequate) pool of resources.
    18   Regardless of whom Smart World intended to benefit, it is undisputed that its successful appeal
    19   increased the total recovery from Juno by nearly 20%, benefitting the estate and its creditors
    20   alike.
    21            The other two developments mentioned by Judge Peck were “the unusually prolonged
    -12-
    1   procedur[al] path of this litigation,” and “the fact that Riker Danzig . . . was an obstacle, not an
    2   asset, when it came to approval of the settlement.” But the prospect of prolonged litigation
    3   always exists, and was clearly anticipated by the parties, who made Riker Danzig’s contingent
    4   fee a function of the length of the litigation. In addition, the extended duration was the product
    5   of two factors: the two-year stay imposed by the same bankruptcy court that approved the fee
    6   agreement, and Smart World’s successful appeal. One need only glance at this Court’s crowded
    7   docket to see that an appeal from an adverse ruling is not an event incapable of being anticipated.
    8   Riker Danzig’s objection and appeal on behalf of Smart World’s shareholders was vindicated by
    9   our learned colleagues’ decision, which held: “[T]he debtor bears the burden of maximizing the
    10   value of the estate, including the value of any legal claims . . . . [I]n some instances, fiduciary
    11   duty requires the chapter 11 debtor to pursue a cause of action, but in other instances may require
    12   settlement.” Smart World I, 
    423 F.3d at 175
     (internal quotation marks, citations and alterations
    13   omitted). Riker Danzig was not pursuing frivolous litigation to extend the contest to increase its
    14   payday – it won the appeal. Simply put, none of these developments were incapable of being
    15   anticipated at the time the bankruptcy court pre-approved the terms of Riker Danzig’s retention.
    16
    17                                             CONCLUSION
    18          For the foregoing reasons, the judgment of the district court is AFFIRMED.
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