Market Center East Retail Property, Inc.

OCR transcription for search; preserved printed pages are authoritative

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO

In re:
MARKET CENTER EAST RETAIL PROPERTY, INC.,
Debtor. No. 11-09-11696 NLJ

MEMORANDUM OPINION

This matter is before the Court on remand from the Tenth Circuit Bankruptcy Appellate
Panel following the Tenth Circuit’s opinion remanding the case to the Bankruptcy Appellate
Panel.

1. Procedural Posture and Need for Additional Evidence

This matter is currently before the Court! on the Application by Attorneys as Special
Counsel for Debtor for Approval and Payment of Compensation, doc. 130, (the “Application”)
filed on February 1, 2010, by Barak Lurie/Lurie & Park (“Lurie”). The Application was objected
to by Market Center East Retail Property, Inc. (“Market Center” or “Debtor’”) in its Response to
the Application, doc. 136 (the “Objection”). The Court held an evidentiary hearing on the
Application on June 16, 2010, and made findings of fact on the record at a hearing on July 2,
2010, which were incorporated into an Amended Minute Entry, doc. 161. The Court issued its
Memorandum Opinion Approving in Part Application of Barak Lurie/Lurie & Park for
Compensation as Special Counsel, doc. 216 (“Application Opinion”), and entered an Order
Approving in Part Application of Barak Lurie/Lurie & Park for Compensation as Special
Counsel, doc. 217, on March 30, 2011 (“Application Order”). The Court’s findings of fact were

incorporated into and expanded upon in the Application Opinion.

' This matter was originally assigned to Hon. James Starzynski, now retired. This case was transferred to Hon. Niles
Jackson on August 8, 2012, doc. 317.

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INFORMATION
GPO

Following the entry of the Application Order, Market Center appealed to the Tenth
Circuit Bankruptcy Appellate Panel, which affirmed the Application Order. Market Center then
appealed to the Tenth Circuit Court of Appeals, which reversed the Application Order in its
opinion, which was filed in this Court as docket no. 341, and reported as In re Market Center
East Retail Property, Inc. 730 F.3d 1239 (10™ Cir. 2013) (the “Tenth Circuit Opinion”). This
proceeding follows.

The Court held a status conference on November 25, 2013. The parties stipulated and the
Court agreed at that hearing that no additional evidence needed to be presented to this Court.
The parties and the Court also agreed that on remand, this matter should follow a traditional
briefing schedule with Lurie to file a brief, filed on January 10, 2014, doc. 355 (the “Opening
Brief’), Market Center to file a response, filed on January 31, 2014, doc. 359 (the “Response”,
and Lurie to file a reply, filed on February 12, 2014, doc. 361 (the “Reply”). In addition to a
response Market Center filed a reply, filed February 12, 2014, doc. 362, which was in the nature
of a surreply, and this document was stricken by the Court.

Il. Findings of Fact

The Court makes no additional findings of fact. Instead the Court relies on the first-hand

findings of the Court upon hearing the evidence presented in the first instance.

II. Analysis

1. What constitutes reasonable compensation is the only issue to determine on remand.

The Court’s finding that Lurie conferred a benefit on Market Center’s estate has not been
disturbed on appeal. No party has argued that Lurie’s retainer agreement, attached to the Motion

to Employ Lurie, doc. 16, as Exhibit A (the “Retainer Agreement”) was approved under

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§328(a)’. No party has appealed, or otherwise contests, the award of Lurie’s fees, paid to
Keleher & McLeod, for litigating the Application. Finally, no party has disputed that the actual,
necessary expenses awarded by the Application Order were improper. Accordingly, this opinion
is confined to a determination of the reasonable compensation to be awarded to Lurie pursuant to
§330(a)(3).

The directive from the Tenth Circuit requires this Court to “consider the §330(a)(3) and
relevant Johnson [v. Georgia Highway Express, Inc., 488 F.2d 714 (5" Cir. 1974)] factors — and
only those factors — when evaluating the reasonableness of attorney’s fees under §330.” Market
Center East, 730 F.3d at 1249. The Tenth Circuit also held that the limitation on fee
enhancements set forth in Perdue v. Kenny A. ex rel Winn, 559 U.S. 542 (2010), “do not apply to
the award of attorney’s fees under §330 in the bankruptcy context.” Market Center East, 730
F.3d at 1249. The Tenth Circuit also affirmed the long-held sentiment that “bankruptcy courts
have wide discretion in awarding compensation to attorneys, trustees, and professionals so long
as it is reasonable.” Market Center East, 730 F.3d at 1250 citing In re Commercial Fin. Servs.,
427 F.3d 804, 810 (10" Cir. 2005). And along the same lines the Tenth Circuit held that, while
“the bankruptcy court must consider the §330(a)(3) and Johnson factors in evaluating whether a
proposed fee amount is reasonable . . . Section 330(a) does not mandate any particular fee
arrangement.” Jd. at 1249.

2. The posture of this case presents an unusual situation and it is attributable to Lurie’s
failure to pursue §328 approval.

One difficulty presented by the posture in this case is that the Retainer Agreement was
not approved under §328. This puts the Court in the uncomfortable position of using an adjusted

lodestar approach to determine a reasonable fee when the parties agreed to include a component

? Unless otherwise indicated all statutory references are to 11 U.S.C.

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of contingency to calculate the fee. The Tenth Circuit Opinion cites approvingly to the following
quote: “[U]nder 11 U.S.C. §330(a)(3), a bankruptcy court is directed to consider at least five
factors, among which four either explicitly or implicitly direct a bankruptcy court to examine the
amount of time spent on a project.” In re Commercial Fin. Servs., 427 F.3d at 811 (emphasis in
Tenth Circuit Opinion). This approach clearly emphasizes use of the lodestar method to
calculate fees under §330.

This approach is at odds with §328, which contemplates approval of contingency fee
agreements. Section 328(a) provides that the trustee or debtor may hire a professional “on any
reasonable terms and conditions of employment, including . . . on a fixed or percentage fee basis,
or on a contingent fee basis.” If an attorney’s employment is preapproved under §328, then there
is no basis to adjust the fee absent a showing that the terms and conditions “prove to have been
improvident in light of developments not capable of being anticipated . . . .” §328(a). This
creates “a two-tiered system for judicial review and approval of the terms of the professional’s
retention. Section 330 authorizes the bankruptcy court to award the retained professional
‘reasonable compensation’ based on an after-the fact consideration of ‘the nature, the extent, and
the value of such services, taking into account all relevant factors.’ §330(a). However, section
328(a) permits a bankruptcy court to forgo a full post-hoc reasonableness inquiry if it pre-
approves the [employment of the professional].” In re Smart World T. echnologies, LLC, 552
F.3d 228, 232 (2™ Cir. 2009). In this case there was no preapproval of the Retainer Agreement,
although it is unclear why not.

The Stipulated Order Regarding Professional Services Rendered by Lurie as Attorney for
Debtor-in-Possession, doc. 128 (the “Stipulated Order”), approves Lurie’s employment under

§327. The Stipulated Order also reserves the determination on the “amount of any fees sought”

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by Lurie. Stipulated Order at 3. There was no agreement or order of the Court either denying or
approving the Retainer Agreement. However, it is clear that this failure to approve the Retainer
Agreement under §328 was not appealed by Lurie, and on remand this argument has not been
advanced, so the Court will not now consider whether or not to approve the Retainer Agreement
under §328.

This means the Court must proceed under §330, which is used mainly to consider a
lodestar approach, to consider a fee structure that is not amenable to consideration under a strict
lodestar approach. Fortunately, the Tenth Circuit recognized this difficulty and approved this
Court’s wide discretion to choose a fee arrangement applicable to this matter provided, of course,
that the “total fee is reasonable when considered against the relevant factors.” Market Center
East, 730 F.3d at 1250.

3. Calculating reasonable compensation by applying the 330(a)(3) and Johnson factors.

In the Application, Lurie requested a total of $1,473,236.75 comprised of $1,472,385.00
in fees and $851.75. Application at 7. This was supplemented with a request of $9,345.08 for
fees, costs, and taxes expended by Lurie as a result of Market Center attempting to withdraw its
request for employment of Lurie. Jd. at 7. The Court is not constrained by the amount requested
by the Application. It is clear that the court may “award compensation that is less than the
amount of compensation that is requested.” §330(a)(2). The Court will apply all of the
§330(a)(3) and Johnson factors to determine what amount Lurie is entitled to as reasonable
compensation.

a. The time spent on such services; 330(a)(3)(A).

In performing the services that led to the settlement and purchase of the Debtor’s

property, Lurie spent 43.75 hours over the course of two months. Considering the Application

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seeks approval of fees of $1,473,236, that breaks down to an hourly rate of over $30,000.
Nothing in the record supports a finding that the value of Lurie’s services exceeded $30,000 per
hour. This factor weighs against granting the full amount requested in the Application.

b. The rates charged for such services; 330(a)(3)(B).

This factor is one of the many factors that cannot be blindly applied to the facts of this
case. In this case the rate charged had two components: an hourly component of $200 per hour;
and a contingency component of 15% that applies to the full amount realized by the sale of the
Debtor’s property. The evidence presented at trial suggests that these rates were negotiated and
agreed upon in an arms’ length transaction by two sophisticated parties. Although it is
lamentable that the Retainer Agreement was not presented for preapproval under §328, as set
forth above, that does not mean that the Retainer Agreement is discounted and this factor is one
such factor where it may be considered. This factor favors granting the Application.

c. Whether the services were necessary to the administration of, or beneficial at the time
at which the service was rendered toward the completion of a case under this title;

330(a)(3)(C).

At the time Mr. Lurie began his representation of Market Center, it was believed that the
claim had an approximate value of $105,000. Market Center believed that the value of the
Shopping Center was $8,000,000. After Lurie’s representation, the litigation with Lowe’s was
settled and the Shopping Center was sold for $9,750,000. This represents a benefit to the estate
of $1,645,000. This amount is different than the amount set forth in the Application Opinion of
$2,250,000; however, the Court is not making a new finding. The Court is relying on the
findings previously made to reach the conclusion that $1,645,000 was the amount of benefit to

the estate.

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Furthermore, at the time Market Center settled with Lowe’s, Market Center and its
principal were facing litigation on multiple fronts with the Debtor’s secured lender, Orix Capital.
The settlement with Lowe’s funded resolution of the litigation with Orix Capital without
significant further legal expenses, and allowed full repayment of all creditors of Market Center
plus a large distribution to Mr. Lahave. If not for the services of Lurie this may not have been
possible, and almost certainly would have taken much longer.

These facts weigh heavily in favor of granting the Application.

d. Whether the services were performed within a reasonable amount of time
commensurate with the complexity, importance, and nature of the problem, issue, or
task addressed; 330(a)(3)(D).

As set forth above, the timing of the settlement with Lowe’s saved Market Center a
significant amount of legal expense. Therefore, to the extent this factor deals with “timeliness,”
the services were performed within a reasonable amount of time. To the extent this factor deals
with the amount of time spent to deal with this particular problem, the Court finds that 43.75
hours of time was commensurate with the difficulty of the problem. In that amount of time,
Lurie formulated what would prove to be a very successful litigation plan, served discovery,
responded to the Complaint, and participated in negotiations. Accordingly, this factor weighs in
favor of granting the Application.

e. Whether the professional is board certified or otherwise has demonstrated skill and
experience in the bankruptcy field; 330(a)(3)(E).

This factor does not apply to the case at bar. Mr. Lurie’s employment as special counsel
related to non-bankruptcy law.

f Whether the compensation is reasonable based on the customary compensation
charged by comparably skilled practitioners in cases other than cases under this title;

330(a)(3)(F).

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This factor goes to the crux of the issue presented by the Application. Based on the
Court’s experience an hourly rate of over $30,000, as requested by the Application, is not
reasonable. However, the Court does find that Lurie’s hourly rate of $400 or a 30% contingency
arrangement would be customary compensation charged by comparably skilled practitioners in
normal litigation situations. The fact that Lurie and Market Center split the difference in this
case, agreeing to a half-price hourly rate and half of the customary contingency fee should not
affect this. In In re Adam Aircraft Industries, Inc., 2013 WL 414213 (Bankr. D. Colo. 2013),
Judge Romero also approved a hybrid retainer agreement, where a firm agreed to take a 15%
contingency and charge 75% of its normal hourly rate. In that case, as here, the hybrid fee
benefitted the Debtor and the estate by lowering the up-front cost, and in this case Lurie
benefitted from the potential — which was realized — of a great result. This factor weighs in
favor of granting the Application.

g. The time and labor required; Johnson J.

This factor repeats the first 330(a)(3) factor, and weighs against granting the Application.
See supra, at 5-6.

h. The novelty and difficulty of the questions; Johnson 2.

The issue presented in the litigation with Lowe’s amounted to a run-of-the-mill breach of
contract claim. In that sense, this was not a particularly novel or difficult question. But that is
not the end of the inquiry here. The parties agree that at the time Lurie was hired there was little
potential upside and everyone involved believed that securing $200,000 for Market Center would
be a good result. Lurie, however, developed a strategy that worked to far exceed that

expectation. From this standpoint Lurie attacked a straightforward issue with a novel approach

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that led to a great result. This merits consideration in relation to this factor. This factor,
therefore, weighs in favor of granting the Application.

i. The skill requisite to perform the legal service properly; Johnson 3.

As with the second Johnson factor, the breach of contract issue did not present a
particularly unique problem; however, Lurie’s creative approach demonstrated substantial skill
and it is unknown whether another lawyer would have developed and successfully utilized this
strategy. Accordingly, this factor weighs in favor of granting the Application.

J. The preclusion of other employment by the attorney due to the acceptance of the case;
Johnson 4.

There is no evidence that Lurie was working solely on this case during the pendency of
the litigation. The fact that Lurie worked 43.75 hours over a period of two months strongly
suggests that he did in fact have other work occupying the remainder of his time. This factor
weighs against granting the Application.

k. The customary fee; Johnson J.

This factor mirrors §330(a)(3)(F). Although the customary fee would either have been
wholly hourly or wholly contingent, the Court sees nothing wrong with a hybrid fee in this case
because of the incentives for both parties. This factor weighs in favor of granting the
Application.

L Whether the fee is fixed or contingent; Johnson 6.

Yet again, the Court is faced with a factor that does not reflect the way this transaction
was structured. The Court is mindful of the Tenth Circuit’s direction that this Court has “wide
discretion to authorize many types of fee arrangements.” Tenth Circuit Opinion, 730 F.3d at
1250. With this in mind, and with the directive to consider all of the Johnson factors, the Court

finds that this hybrid-fee arrangement is appropriate in this situation. As set forth above, this

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reduces the up-front cost to the Debtor and the estate, and allows the attorney to recover more on
the back end, provided the representation is successful. In the original fee award, the Court
characterized this as a “big-risk/big-reward” situation. The Tenth Circuit Opinion stated that this
was an incorrect analysis. Instead, the proper characterization from Lurie’s perspective is small
up-front payment/big reward if successful. The fact that Lurie’s litigation strategy was
successful — perhaps more successful than Market Center could have ever hoped for — does not
allow Market Center to use §330(a)(3) to avoid the consequences of its bargain. This factor
weighs heavily in favor of granting the application.

m. Time limitations imposed by the client or the circumstances; Johnson 7.

There were significant time limitations associated with this litigation and Market Center
reaped huge rewards because of how swiftly the litigation was resolved. As set forth above,
Market Center was facing risky, protracted litigation with its main secured creditor, and Mr.
Lahave was individually at risk of losing a substantial sum of money. Because of Lurie’s
successful strategy, the litigation with Lowe’s was resolved quickly and allowed Market Center
to resolve the litigation with Orix before incurring the significant legal expenses — and perhaps
adverse rulings — that potentially lay ahead. This factor weighs in favor of granting the
application.

n. The amount involved and the results obtained: Johnson 8.

In essence, the litigation with Lowe’s was bet-the-company litigation. But for Mr.
Lurie’s successful litigation strategy, Market Center would have been placed in the difficult
position of confirming a plan when the occupancy rate at its property was hovering at 25%.
Although the Court cannot say confirmation of a plan that did not involve liquidation would have

been impossible, it was certainly unlikely. Accordingly, for this factor the full amount of Market

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Center’s value — which turned out to be the amount of the Lowe’s settlement, $9,750,000 —
was at issue. The result Lurie obtained far exceeded the expectations of Market Center and its
creditors, who were repaid in full. This factor, therefore, weighs in favor of granting the
Application.

0. The experience, reputation, and ability of the attorneys; Johnson 9.

The Court did not receive much evidence on this issue, except as to the ability of Mr.
Lurie in this case. However, the Court has yet to meet the attorney whose experience, reputation,
and ability would entitle him to receive an hourly rate in excess of $30,000. This factor weighs
against granting the Application.

p. The undesirability of the case; Johnson 10.

Mr. Lahave approached Mr. Lurie with this case after Lowe’s had backed out of the
purchase agreement and at a time when Market Center was experiencing cash flow problems.
These problems led, in part, to the hybrid fee arrangement that was ultimately agreed upon.
From the perspective of Mr. Lurie there was a possibility that he would not make as much money
on this case as he could on other work. However, this does not make the case undesirable, and
Mr. Lurie wisely included the contingency arrangment in the event he was successful.
Furthermore, “undesirability” as referenced in Johnson does not address the situation at bar.
Normally undesirability refers to cases that could hurt their public perception. See Johnson, 488
F.2d at 719 (Referring to the difficulties faced by civil rights lawyers in NAACP v. Button, 371
U.S. 415, 444 (1963), and Sanders v. Russell, 401 F.2d 241 (5™ Cir. 1968), as the type of cases
that would be, potentially, undesirable.) This factor weighs against granting the Application

q. The nature and length of the professional relationship with the client; Johnson 11.

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The evidence demonstrates that Mr. Lurie was hired only for this specific piece of
litigation and that neither Market Center nor Mr. Lahave had any previous relationship with
Lurie. This factor weighs against granting the application.

r. Awards in similar cases; Johnson 12.

This factor is difficult to analyze because the hybrid-fee arrangement has not been before
the Court in prior cases often, if at all. Nonetheless, as set forth above, in this case the hybrid-fee
arrangement made good sense for the Debtor and Lurie, allowing each to get part of what they
wanted. In the Court’s experience a $400 per hour charge for an attorney from southern
California is well within the range of typical fees and a 33% contingency rate is also well within
the range of typical fees. The fact that these two very typical terms were split down the middle
lends itself to a determination that this hybrid fee is typical. With all that being said, the Court is
unfamiliar with any case — contingency or otherwise — where the effective hourly rate is over
$30,000. Because of that, this factor weighs against granting the Application

4. Reasonableness Determination

Of the eighteen factors required to be considered, ten support granting the Application,
seven weigh against granting the Application, and one is not relevant. If the Court’s job were
simply to tally up the votes the Application must be granted. However, the Court’s overriding
goal under §330 is to ensure that “the total fee is reasonable when considered against the relevant
factors.” Tenth Circuit Opinion, 730 F.3d at 1249. “We have recognized that ‘bankruptcy courts
have wide discretion in awarding compensation to attorneys, trustees, and professionals so long
as it is reasonable.’” Jd. at 1250 citing In re Commercial Fin. Servs., 427 F.3d at 810.

In the case at bar, the Court believes there are three factors that weigh most heavily in

deciding on the Application: the time spent on the services (comprising two of the eighteen

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factors); the results obtained; and whether the fee is fixed or contingent. Of these three factors
one, the time spent on the services weighs heavily against granting the Application because
receiving an hourly rate of over $30,000 for under 50 hours of work does shock the conscience
of the Court. However, mitigating against that factor is the fact the Market Center agreed to a
hybrid fee. Market Center received a great benefit by having a reduced-hourly-fixed fee, and in
return agreed to sacrifice some of the upside. When considered as a contingency fee, an award
of 15% of the total recovery is eminently reasonable. Finally, the results obtained by Lurie on
behalf of Market Center far exceeded expectations. As the Court stated in the Application
Opinion: “The fact that the award of compensation and reimbursement to Applicant is
$350,752.06 plus some supplemental attorney fees for Applicant’s counsel, thus leaving enough
to pay all the other creditor in full and put money back into Debtor’s pocket, raises the success to
the level of rousing.” Application Opinion at 30. With this in mind the Court will determine
reasonable compensation for Lurie.

First, Lurie should receive the full amount of the bargained-for hourly rate, plus costs.
As set forth in the Application Opinion, this is: $552.59 for the period of April 23 — June 1, 2009
and $8,043.98 for the period of June 1, 2009 — J anuary 21, 2010. See Application Opinion at 65.
Lurie’s entitlement to fees for the work performed by his local counsel, Keleher & McLeod, has
not been challenged on appeal and therefore will remain as set forth by the Court in prior orders.
The Court does not believe that any enhancement or deduction is appropriate.

As to the amount of the contingency award the Court believes that awarding a 15%
contingency on the full amount of the purchase price is unreasonable, notwithstanding the
parties’ negotiated Retainer Agreement. However, the Court does believe that the award of some

contingency fee is reasonable. As set forth above the Debtor valued the real property at

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$8,000,000 and valued the claim against Lowe’s at $105,000. Lowe’s ultimately agreed to
purchase the property for $9,750,000, the Court finds that Lurie added total value of $1,645,000
to the bankruptcy estate and it is reasonable, based on the §330(a)(3) and Johnson factors, to
award Lurie a 15% contingency on that value for a contingency fee of $246,750. In this case,
Lurie’s work entitles him to an administrative expense of $255,346.57. That translates into an
effective hourly rate is $5,836.49 under a lodestar approach. Although this is high, the Court
finds that this hourly rate is reasonable under the circumstances of this case following application
of the §330(a)(3) and Johnson factors.

Finally, the Court does not disturb that portion of the Application Order awarding Lurie
his attorney fees of $4,655.49. This results in a total administrative expense of $260,002.06.
Because Lurie was initially awarded a total of $350,752.06, Lurie is directed to deposit $90,750
with the Court registry within 120 days.°

IV. Conclusion

An award of $260,002.06 is appropriate in this case. The Court believes that this amount
adequately compensates Lurie for his work in this case while honoring the Bankruptcy Code’s
requirement that total compensation be reasonable. Of the eighteen factors weighed by the
Court, the majority support the Application, and of the three factors given the most weight by the
Court two support the Application. Nonetheless, the factor relating to time spent on services
weighs heavily against the Application and supports the decreased amount awarded by the Court.

An order consistent with this opinion will be entered by the Court.

* The purpose of the 120 day period is to allow Lurie to amend any previously filed tax returns and liquidate assets if
necessary. If, by the 120" day, Lurie has failed to deposit the required amount in the Court Registry, Market Center
may request and the Court will enter a judgment for the amount still outstanding.

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Hon. Nifes-Fackgon_~
United States Be ptcy Judge

Date Entered on docket: April 10, 2014
Copies to:

James Rasmussen

Deron Knoner

Keleher & McLeod, P.A.
P.O. Box AA
Albuquerque, NM 87103

Daniel Behles

Moore, Berkson, & Gandarilla, P.C.
P.O. Box 7459

Albuquerque, NM 87194

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