In re Ampal-American Isr. Corp.

• Decision Date: 27 July 2015
• Docket Number: Case No. 12–13689 SMB
• Citation: 534 B.R. 569
• Parties: In re: Ampal–American Israel Corp., Debtor.
• Court: U.S. Bankruptcy Court — Southern District of New York

534 B.R. 569

In re: Ampal–American Israel Corp., Debtor.

Case No. 12–13689 SMB

United States Bankruptcy Court, S.D. New York.

Signed July 27, 2015

TARTER KRINSKY & DROGIN LLP, Proposed Substitute Counsel to the Chapter 7 Trustee, 1350 Broadway, New York, NY 10018, Alex Spizz, Esq., Arthur Goldstein, Esq., Jill Makower, Esq., Of Counsel

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP, Counsel for Yosef A. Maiman and Merhav (M.N.F.) Limited, 1633 Broadway, New York, NY, David M. Friedman, Esq., Daniel A. Fliman, Esq., Nii–Amar Amamoo, Esq., Of Counsel

COLE SCHOTZ, P.C., Attorneys for Irit Eluz, 900 Third Avenue, 16th Floor, New York, NY 10022, Michael D. Sirota, Esq., Steven L. Klepper, Esq., Of Counsel

FINDINGS OF FACT AND CONCLUSIONS OF LAW GRANTING TRUSTEE'S MOTION TO RETAIN TARTER KRINSKY & DROGIN LLP AS COUNSEL AND DENYING CROSS–MOTION TO DISQUALIFY THE TRUSTEE

STUART M. BERNSTEIN, United States Bankruptcy Judge:

Alex Spizz, the chapter 7 trustee (the “Trustee”) of Ampal–American Israel Corporation (“Ampal”), has moved to retain the law firm of Tarter Krinsky & Drogin LLP (“Tarter”) as substitute general bankruptcy counsel under 11 U.S.C. § 327(a). The Trustee recently joined Tarter as a partner together with four other lawyers and one paralegal from his previous firm, Spizz Cohen & Serchuk, P.C. (“Spizz Cohen”), which dissolved and closed. Yosef A. Maiman, the chairman and former chief executive officer and president of Ampal together with entities under his ownership or control (collectively, the “Controlling Shareholders”) have objected to Tarter's retention based on its prior representation of certain parties-in-interest in other matters in this bankruptcy case. They have also cross-moved to disqualify the Trustee based primarily on his affiliation with Tarter. Irit Eluz, a former officer of Ampal, joined in the objection and the cross-motion. (Joinder of Irit Eluz in Support of Yosef A. Maiman and the Controlling Shareholders' (I) Objection to the Retention of Tarter Krinsky & Drogin LLP as Substitute Counsel to the Trustee and (II) Motion to Disqualify Alex Spizz as Chapter 7 Trustee, dated Apr. 29, 2015 (ECF Doc. # 577).)

The current battle again pits Ampal's former management against Ampal's bondholders, catching the Trustee and his new firm in the cross hairs. For the reasons that follow, the Controlling Shareholders' cross-motion is denied and the Trustee's motion to retain Tarter is granted.

BACKGROUND

A. Commencement of Case and Conversion to Chapter 7—Ampal I

The background to this case is discussed at length in two previous decisions of the Court. See In re Ampal–American Israel Corp., No. 12–13689(SMB), 2013 WL 1400346 (Bankr.S.D.N.Y. Apr. 5, 2013) (Ampal I ); In re Ampal–American Israel Corp., 502 B.R. 361 (Bankr.S.D.N.Y.2013) (Ampal II ). I assume familiarity with these decisions and repeat only what is necessary to this decision.

Ampal, a New York corporation, filed a chapter 11 petition in this Court on August 29, 2012. Ampal was primarily engaged in the acquisition of interests in businesses located in the State of Israel. At all relevant times prior to the appointment of the chapter 11 trustee in this case, Ampal was controlled by the Controlling Shareholders, and Maiman served as Ampal's chairman, president and chief executive officer. Ampal's assets consist mainly of interests in non-debtor, foreign subsidiaries, and its principal non-affiliate debt consists of three series of debentures, A, B and C, in the approximate sum of $234 million. The indenture trustees of the Series A, B and C debentures are, respectively, Hermetic Trust (1975) Ltd. (“Hermetic”), Reznik Paz Nevo R.P.N. Trusts 2007 Ltd. (“Reznik”) and Mishmeret – Trusts Company Ltd. (“Mishmeret”) (collectively, the “Indenture Trustees”). Following the commencement of the chapter 11 case, the United States Trustee appointed the Indenture Trustees to the Official Committee of Unsecured Creditors (the “Committee”). (Appointment of Official Committee of Unsecured Creditors, dated Sept. 25, 2012 (ECF Doc. # 27).)¹

Over two years ago, the Court observed that “[t]his case has been marked by strife between the Committee [i.e., the bondholders] on the one hand and the Debtor and Maiman on the other.” Ampal I, 2013 WL 1400346, at *1. As set out more fully in Ampal I, this discord ultimately led to the appointment of a chapter 11 trustee. Id. , 2013 WL 1400346, at *7. After determining that the estate was administratively insolvent, the chapter 11 trustee moved to convert the case to chapter 7, and the Court granted the motion. (Order Converting Chapter 11 Case to Chapter 7 and for Related Relief, dated May 2, 2013 (ECF Doc. # 258).) Following conversion, the members of the Committee elected Spizz as the chapter 7 trustee. (See United States Trustee's Report of Undisputed Election of Chapter 7 Trustee, dated May 29, 2013, at 3–4 (ECF Doc. # 275).) Ofer Shapira, an Israeli attorney who represented Mishmeret and Hermetic at the election, voted his clients' proxies in favor of Spizz. Spizz thereafter retained Spizz Cohen as his counsel pursuant to Bankruptcy Code § 327(a).

Shortly after his appointment, the Trustee moved for authority to retain Shapira & Co. Advocates, Shapira's law firm, as special counsel to represent the estate's interests in Israel nunc pro tunc to the date of his election. (See Chapter 7 Trustee's Application for Retention of Shapira & Co. Advocates as Special Counsel to Trustee Pursuant to 11 U.S.C. § 327(e), Effective as of May 20, 2013, dated June 24, 2013 (ECF Doc. # 291).) The Controlling Shareholders objected to the application, arguing that Shapira's concurrent representation of Hermetic and Mishmeret was adverse to the estate. (Objection of Yosef A. Maiman and the Controlling Shareholders to Chapter 7 Trustee's Application to Retain Shapira & Co. Advocates as Special Counsel to Trustee Pursuant to 11 U.S.C. § 327(e), dated July 1, 2013, at ¶¶ 6–9 (ECF Doc. # 303).) At the Court's suggestion, the Trustee withdrew the application, and instead, exercised Ampal's rights as direct or indirect sole shareholder of the non-debtor subsidiaries, the parties that actually required the representation and would pay Shapira's bills, to hire Shapira on their behalf.

B. The Enforcement Motion —Ampal II

The dispute between the Indenture Trustees and Maiman intensified on October 4, 2013, when Shapira wrote a letter in his capacity as attorney for Hermetic and Mishmeret to Maiman and certain of Ampal's officers and directors. The letter charged that Maiman and the officers and directors had breached their fiduciary duties, committed waste and mismanaged Ampal and its subsidiaries and demanded payment or security for payment.² An attorney representing several of the recipients sent an email to the Trustee in protest arguing that Shapira's letter asserted estate claims in violation of the automatic stay. The Trustee responded that he believed the letter had been sent in order to preserve claims under Ampal's D & O insurance policies and that he would not allow Hermetic and Mishmeret to prosecute claims belonging to the estate. (Motion of Yosef A. Maiman, Irit Eluz, Yoram Firon, Amit Mantsur, Erez Meltzer, Leo Malamud, Sabih Saylan, Revital Degani, Daniel Vaknin, and Menachem Morag (I) to Enforce the Automatic Stay and, if Necessary, Confer Standing on the Movants Relating Thereto and (II) to Award Damages for Willful Stay Violations, dated Oct. 22, 2013 (“Enforcement Motion ”), Ex. C (email dated Oct. 14, 2013 1:38 p.m.) (ECF Doc. # 352).)

Not satisfied with the Trustee's response, Maiman and the other recipients filed a motion to enforce the automatic stay, and recover damages from Mishmeret and Shapira and an order directing the Trustee to terminate Shapira's representation of the non-debtor subsidiaries. (See Enforcement Motion at 2.) Tarter represented Mishmeret and Shapira in this matter. Following a hearing on the motion, the Court determined that any breach of fiduciary duty claims against Maiman and the other officers and directors were property of the estate and ruled that Mishmeret and Shapira had willfully violated the stay by seeking to collect on account of those claims. Ampal II, 502 B.R. at 373. The Court declined, however, to award damages. Id. at 374. The Court also refused to direct the Trustee to terminate Shapira. Although the Court noted a potential conflict between the estate and Mishmeret regarding claims to the D & O insurance proceeds, Shapira had not taken any steps to collect on behalf of Mishmeret and represented that they would not do so. Accordingly, the Court determined that no actual conflict existed that warranted Shapira's termination. Id. at 375.

C. The Litigation Financing Agreement

After the Enforcement Motion was resolved, the Trustee entered into a Litigation Financing Agreement (the “LFA”) with the Indenture Trustees. (See Chapter 7 Trustee's Motion for Order (I) Authorizing Trustee to Enter into Litigation Financing Agreement Pursuant to 11 U.S.C. §§ 364(b) and 364(e), and (II) Modifying Automatic Stay Pursuant to 11 U.S.C. § 362(d) to Permit Trustee to Implement Terms of Litigation Loan, dated May 21, 2014 (“Litigation Finance Motion ”) (ECF Doc. # 407).)³ Tarter also represented Mishmeret in connection with the LFA.

Under the LFA, the Indenture Trustees agreed on behalf of their respective bondholders to loan the Trustee $1.5 million to fund litigation against the Controlling Shareholders as well as Ampal's former officers and directors (defined collectively in the LFA as the “Maiman Litigation”). The principal focus of the Maiman Litigation was a $20 million note, executed in favor of Ampal by Merhav (M.N.F.) Limited (“MNF”), an entity controlled by Maiman and one of the Controlling Shareholders, and personally guaranteed by Maiman. Ampal subsequently assigned the note to Merhav Ampal Group Ltd. (“MAG”), a non-debtor subsidiary. The Trustee and MAG were required to use reasonable efforts to commence the...