In Re Essential Therapeutics, Inc. , 2004 Bankr. LEXIS 519 ( 2004 )

308 B.R. 170 (2004)

In re ESSENTIAL THERAPEUTICS, INC., et al., Debtors.

No. 03-11317 (MFW).

United States District Court, D. Delaware.

April 21, 2004.

Christopher S. Sontchi, Gregory Alan Taylor, Liza Haley Sherman, William Pierce Bowden, Ashby & Geddes, Wilmington, DE, for Essential Therapuetics, Inc.

Julie L. Compton, Office of U.S. Trustee, Wilmington, DE, U.S. Trustee.

Kathleen M. Miller, Smith, Katzenstein & Furlow, LLP, Wilmington, DE, for Official Committee of Security Holders.

MEMORANDUM OPINION^[1]

MARY F. WALRATH, Chief Judge.

Before the Court is the Motion of certain Preferred Stockholders^[2] and their professionals (Latham & Watkins LLP and Young Conway Stargatt & Taylor, LLP) for compensation and reimbursement of administrative expenses pursuant to section 503(b)(4) of the Bankruptcy Code. The United States Trustee opposes the Motion. For the reasons set forth below, we grant the Motion in part and deny it in part.

I. FACTUAL BACKGROUND

Essential Therapeutics, Inc., and its affiliates ("the Debtors") are in the business of developing and commercializing compounds and products to combat certain diseases. In October 2001, the Debtors acquired Althexis, a privately-held biotechnology company. Concurrent with the acquisition, the Debtors issued and sold 60,000 shares of Series B convertible redeemable preferred stock. The Series B preferred stockholders had the right to force the Debtors to redeem their shares upon the occurrence of certain events, including the delisting of the Debtors' common stock.

On April 4, 2003, NASDAQ delisted the Debtors' common stock. Thereafter, the Series B preferred stockholders exercised their right to require the Debtors to redeem their Series B stock. The Debtors had insufficient funds to repurchase the shares, and on May 1, 2003, the Debtors filed voluntary petitions for relief under chapter 11 of the Bankruptcy Code.

On May 19, 2003, the Debtors filed their Joint Plan of Reorganization ("the Plan"). On Motion of Narragansett Asset Management, LLC ("Narragansett") the Court ordered the United States Trustee ("the UST") to appoint an Official Committee of Equity Security Holders ("the Equity Committee"). Following its appointment, the Equity Committee objected to the Plan. The Debtors and the Preferred Stockholders filed separate responses to the Equity Committee's Objection. After a hearing, the Court confirmed the Plan on October 10, 2003.

Pursuant to the Plan, all secured and unsecured creditors of the Debtors were paid in full. The equity interests of the common shareholders were eliminated, and the Series B preferred stockholders received new preferred stock in the Reorganized Debtor.

On December 12, 2003, the Preferred Stockholders filed the Motion seeking reimbursement of their professionals as an administrative expense pursuant to section 503(b)(4) of the Bankruptcy Code. The UST objected to the Motion on January 1, 2004. At the hearing on the Motion the Court directed the Preferred Stockholders to amend their earlier Motion and describe with greater specificity the tasks performed by their professionals in this case. The Preferred Stockholders supplemented their Motion with detailed descriptions on January 26, 2004.

II. JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. §§ 1334 & 157(b)(2)(A), (B), & (O).

III. DISCUSSION

The Preferred Stockholders seek the allowance of an administrative claim in the amount of $842,819.50 for fees and $46,680.45 for expenses for the services rendered by their professionals, pursuant to section 503(b)(4) of the Bankruptcy Code. The UST objects to the Motion contending that the Preferred Stockholders have failed to satisfy the Third Circuit's requirements for compensation under that section.

Section 503(b)(4) provides for the allowance of an administrative expense for:

reasonable compensation for professional services rendered by an attorney or an accountant of an entity whose expense is allowable under paragraph (3) of this subsection, based on the time, the nature, the extent, and the value of such services, and the cost of comparable services other than in a case under this title, and reimbursement of actual necessary expenses incurred by such attorney or accountant.

11 U.S.C. § 503(b)(4).

A. Eligible Party under Section 503(b)(3)

To determine whether the professionals representing the Preferred Stockholders may obtain compensation under section 503(b)(4), we must first determine whether the Preferred Stockholders are covered by section 503(b)(3). 11 U.S.C. § 503(b)(4); Lebron v. Mechem Fin., Inc., 27 F.3d 937, 943 (3d Cir.1994). Subsection 503(b)(3)(D), the only portion of section 503(b)(3) arguably applicable in this case, provides that four categories of persons may apply for reimbursement: (1) creditors, (2) indenture trustees, (3) equity security holders, and (4) creditor and equity security holder committees other than official committees appointed under section 1102 of the Bankruptcy Code. See 11 U.S.C. § 503(b)(3)(D); Lebron, 27 F.3d at 944.

Here, the Preferred Stockholders can be classified as creditors (since they had the right to payment when the Debtors' stock was delisted), equity security holders (since they held Series B stock), or a non-official committee of equity security holders (because they represented the holders of approximately 90% of the Series B stock). They are, therefore, an entity recognized by section 503(b)(3).

B. Substantial Contribution

A party identified in section 503(b)(3) is entitled to compensation or reimbursement of its expenses only for services rendered that made a "substantial contribution" to the debtor's estate. In Lebron, the Third Circuit held that a claimant's efforts provide a "substantial contribution" when they result in an actual and demonstrable benefit to the debtor's estate and its creditors. 27 F.3d at 944. Section 503(b)(3)(D) reconciles two conflicting objectives of encouraging participation in the reorganization process and preserving the value of the estate for creditors. Id. Inherent in substantial contribution, however, is the requirement that the benefit received by the estate be more than incidental to the applicant's self-interest. Id. Creditors are presumed to be self-interested unless they establish that their actions are designed to benefit others who would foreseeably be interested in the estate. Id. at 946. Reimbursement is improper where the activities of the interested parties are designed to serve primarily their own interests and would have been undertaken without an expectation of reimbursement from the estate. Id.

The Preferred Stockholders contend that they provided significant and demonstrable benefit to the Debtors' estate and creditors by playing a critical role in the Debtors' reorganization. In particular, they assert that they made unique and essential contributions by assisting Debtors' counsel in designing and drafting the Plan, sharing insights regarding bankruptcy law and procedure, conducting extensive research, drafting corporate documents establishing the Reorganized Debtor, and working with the Debtors to obtain a fair and accurate valuation of the Debtors. Accordingly, they argue that their work should be compensated pursuant to section 503(b)(4).

The UST objects to the Motion by asserting that the Preferred Stockholders do not satisfy the Third Circuit's requirements for compensation pursuant to section 503(b). While their services may have provided an incidental benefit to the Debtors' estate, the UST contends that the Preferred Stockholders did not overcome the Lebron presumption that they were acting primarily in their own self-interest.

After reviewing the Preferred Stockholders' Motion, the fee applications and the various responses, we conclude that the Preferred Stockholders' Motion must be granted in part and denied in part.

1. Not Reimbursable

We conclude that many of the services provided by the professionals for the Preferred Stockholders did not provide a substantial contribution to the Debtors' estate. In fact, we conclude that significant portions of their fee application relate to tasks that can only be described as self-motivated. (Exhibit A.) For example, the fee application includes entries for services rendered in analyzing whether the Preferred Stockholders could force the Debtors into a nonconsensual bankruptcy filing, the impact NASDAQ's decision to delist the Debtors' common stock would have on the Preferred Stockholders' rights, and whether their equity interests were subject to subordination under section 510(b) of the Bankruptcy Code. The Preferred Stockholders also seek reimbursement for preparing and filing their own proofs of claim. These services provided no benefit to the estate or the Debtors' creditors and are not reimbursable pursuant to section 503(b)(4).

The Preferred Stockholders also seek compensation for pre-petition actions by their professionals to protect their interests in the Debtors. Although pre-petition expenses may be recoverable as an administrative expense under section 503(b), the applicant must establish that the pre-petition efforts resulted in a substantial contribution to the estate post-petition. Lebron, 27 F.3d at 945 (noting that the creditor's pre-petition efforts were critical to the appointment of a trustee and the trustee's prompt investigation and report to the Bankruptcy Court). In this case, the pre-petition efforts included preparing an internal "bankruptcy memorandum," which addressed the Preferred Stockholders' strategy in redeeming their Series B stock, participating in the bankruptcy process, and evaluating the benefits of reorganizing versus liquidating the Debtors. While the Preferred Stockholders now contend that this memorandum assisted the reorganization process, they provided no evidence which overcomes the Lebron presumption that it was prepared for their own self-interest.

We also agree with the UST that many of the services rendered by the professionals for the Preferred Stockholders were duplicative of efforts of the Debtors' professionals. (Exhibit B.) For example, both sets of professionals spent considerable time addressing filings and correspondence from Narragansett. Even if the Preferred Stockholders' actions in response to Narragansett's filings were intended to benefit the estate, we conclude that they were not actual and necessary because the Debtors' professionals actively opposed Narragansett. Accordingly, we conclude that these services were either self-serving or duplicative and thus are not compensable pursuant to section 503(b)(4).

The Preferred Stockholders also seek compensation for time spent opposing the appointment of an Equity Committee and responding to that Committee's pleadings. That opposition was certainly self-motivated. Any recovery by the common stockholders would necessarily detract from any recovery the Preferred Stockholders would receive under the Plan. Furthermore, throughout the case, the Debtors also opposed the appointment and actions of the Equity Committee. Thus, the efforts of the Preferred Stockholders in this area were duplicative of the Debtors' efforts and provided no substantial contribution to the estate.

2. Reimbursable

Despite concluding that a significant portion of the services of the Preferred Stockholders' professionals are not reimbursable, we cannot agree with the UST that the Motion should be denied in its entirety. Our review of the applications establishes that they did overcome the Lebron presumption with regard to other services. While the Debtors' professionals may have been able to provide these services, a comparison of the fee applications establishes that they did not.

We also conclude that these services made a substantial contribution to the estate. For example, by drafting key Plan provisions, participating in hearings, and providing assistance during the reorganization process the Preferred Stockholders lessened the burden on the Debtors' professionals and expedited a smooth transition through the bankruptcy process. In addition, preparing the necessary corporate documents for the Reorganized Debtor provided a substantial benefit to the Debtors' estate and their creditors. Without this assistance, the Debtors' counsel would have had to devote significant time and resources to perform these services while they were busy with other matters. As a result, the Debtors were able to cut costs by focusing their efforts on their areas of expertise and allowing the Preferred Stockholders to assist where appropriate and beneficial to the estate. Since these efforts provided a substantial contribution, we conclude that these services are reimbursable pursuant to section 503(b)(4). Accordingly, we approve fees for the Preferred Shareholders' professionals in the amount of $330,820.00, which represents the services rendered except those detailed on Exhibit A and B attached hereto.

C. Expenses

Next, we must determine whether the Preferred Stockholders can be reimbursed for the expenses incurred by their professionals. Similar to fees, there can be no award of expenses unless the applicant establishes that the expenses were incurred while providing a substantial benefit to the estate. Lebron, 27 F.3d at 946. Since the UST's objection and the Preferred Stockholders' supplemental motion were limited to an analysis of fees, there is little detail provided with respect to what services the expenses relate. We would be prepared to allow expenses in the same proportion as the approved fees, unless the parties can suggest a better alternative. Accordingly, we approve the reimbursement of the Preferred Stockholders' expenses in the amount of $18,243.40 (39.25% of the requested expenses of $46,480.)

IV. CONCLUSION

For the foregoing reasons, we grant in part the Motion of Certain Preferred Stockholders and their Professionals for reimbursement of fees and expenses pursuant to section 503(b)(3).

An appropriate Order is attached.

ORDER

AND NOW, this 21st day of April, 2004, upon consideration of the Motion of certain Preferred Stockholders and their professionals for compensation and reimbursement of administrative expenses pursuant to section 503(b)(4) of the Bankruptcy Code, it is hereby

ORDERED that the Motion is GRANTED in part and DENIED in part; and it is further

ORDERED that the Preferred Stockholders are awarded an administrative expense pursuant to section 503(b)(4) of the Bankruptcy Code in the amount of $330,820.00 in fees and $18,243.40 in expenses for the services provided by their professionals.

EXHIBIT A

EXHIBIT B

NOTES

[1] This Opinion constitutes the findings of fact and conclusions of law of the Court pursuant to Federal Rule of Bankruptcy Procedure 7052, which is made applicable to contested matters by Federal Rule of Bankruptcy Procedure 9014.

[2] The Preferred Stockholders include New Enterprise Associates, Prospect Venture Partners, and Schroder Ventures. Collectively, the Preferred Stockholders represent approximately 90% of the Series B preferred stockholders.