In Re Engineers Public Service Company

• Decision Date: 05 April 1955
• Docket Number: No. 11310.,11310.
• Citation: 221 F.2d 708
• Parties: Matter of ENGINEERS PUBLIC SERVICE COMPANY. SECURITIES AND EXCHANGE COMMISSION, Appellant, v. GUGGENHEIMER & UNTERMYER, Louis Boehm, and Raymond L. Wise.
• Court: U.S. Court of Appeals — Third Circuit

221 F.2d 708 (1955)

Matter of ENGINEERS PUBLIC SERVICE COMPANY SECURITIES AND EXCHANGE COMMISSION, Appellant, v. GUGGENHEIMER & UNTERMYER, Louis Boehm, and Raymond L. Wise.

No. 11310.

United States Court of Appeals, Third Circuit.

Argued November 3, 1954.

Decided April 5, 1955.

COPYRIGHT MATERIAL OMITTED

William H. Timbers, Washington, D. C. (Myron S. Isaacs, Associate General Counsel, Washington, D. C., Myer Feldman, Special Counsel, New York City, Harlow B. Lester, Special Counsel, Securities and Exchange Commission, Washington, D. C., on the brief), for appellant.

William H. Foulk, Wilmington, Del., Alfred Berman, New York City (Philip W. Amram, Lipmann Redman, Washington, D. C., on the brief), for Guggenheimer & Untermyer.

Louis Boehm, New York City (Raymond L. Wise, New York City, on the brief), for appellees.

Before BIGGS, Chief Judge, and MARIS and KALODNER, Circuit Judges.

BIGGS, Chief Judge.

Was the Securities and Exchange Commission entitled to deny compensation to counsel for dissenting common stockholders under the circumstances of the instant case? Engineers Public Service Company, a public utility holding company, was liquidated under Section 11 (e) of the Public Utility Holding Company Act of 1935, 15 U.S.C.A. § 79k(e). Engineers had issued and outstanding both common and preferred stocks. Engineers' management took the position before the Commission that each share of the preferred stock should be paid an amount, the equivalent of stated value, as on involuntary liquidation. The Commission, after extended hearings, concluded that each share of the preferred stock should be paid an amount, found by the Commission not to be in excess of actual value, as on voluntary liquidation. The amount to be paid on voluntary liquidation was considerably in excess of the amount to be paid on involuntary liquidation.¹ Management decided to acquiesce in the Commission's decision, concluding that the chance of reversing the Commission's decision as to the rate of payment of the preferred by judicial review would not be worth the cost of the attempt which necessarily would include interest to be paid on the withheld premium to preferred stockholders by reason of the delay caused by litigation in the courts, if it were unsuccessful. The management therefore filed an amended plan in accordance with the Commission's determination.

Common stockholders, represented by the appellees, then appeared to contest the amended plan, but the plan as amended was approved by the Commission. When the amended plan was moved for hearing in the court below the dissenting stockholders contended that the plan for the payment of the preferred stockholders was not "fair and equitable to the persons affected," who included the common stockholders. The court below concluded that the dissenters were right. See 71 F.Supp. 797. An appeal was taken to this court. We affirmed the conclusion of the District Court holding that the plan as amended was not fair and equitable to the common stockholders but vacated the judgment, pointing out that the court below should not itself value the securities and substitute its own estimates for those of the Commission. See, 3 Cir., 168 F.2d 722, 739. We remanded the case with the direction to the court below to return the record to the Commission for further action. The Supreme Court, however, reversed our judgment, concluding that the Commission's valuations as to the common and preferred stock were supported by substantial evidence and were in accord with acceptable legal principles. See 338 U.S. 96, 69 S.Ct. 1377, 93 L.Ed. 1836, sub nom. S. E. C. v. Central-Illinois Securities Corp.

Thereafter the liquidation of Engineers was proceeded with and consummated. The appellees applied to the Commission, which had reserved the right to pass on fees and expenses as part of the plan of liquidation, for compensation for their services but their application was denied.² The Commission then made application to the court below, which had reserved jurisdiction in respect to all matters relating to the liquidation, for the approval and enforcement of the plan providing for the payment of fees and disbursements in connection with the liquidation but denying compensation and reimbursement of expenses to the appellees. The court below refused to approve the order of the Commission denying fees and expenses to the appellees and granted them substantial compensation and their expenses. See 116 F.Supp. 930. The Commission has appealed from that portion of the court's order making these allowances to the appellees.

In its memorandum opinion concerning fees the Commission under the heading "Applicable Standards" for the granting of compensation stated: "Compensation may be paid for services which have contributed to the plan ultimately approved, which have contributed to the defeat of the proposed plan found to be unsatisfactory, or which have otherwise directly and materially contributed to the development of the proceedings with respect to the plan." The Commission goes on to state that in determining the amount of the compensation the primary factor is the amount of benefit conferred upon the estate or its security holders by the services rendered.

Referring specifically to the appellees' application for fees the Commission said: "Counsel for the common stockholders did not participate in the formulation of the plan or the development of the rocord before us, but merely contested our decision after it had been announced. Their efforts were undertaken with full knowledge that the management, in discharge of its responsibilities to the common stockholders, had vigorously asserted their position before this Commission and had concluded that it was not in the interests of those stockholders to pursue it further because it considered that success was unlikely and that further contest would prove costly to the common stock."

The Commission also stated in its memorandum opinion:

"In * * * seeking court review of the determination the appellees³ were aware of the existence of the considerable risk that they would be unsuccessful and that in such event the delay and costs resulting from the litigation would be detrimental to the stockholders on whose behalf they purported sic to act. In the event that they had been successful the benefit would have been substantial and it would have been proper to award correspondingly substantial compensation on the basis of such benefit. However, they were unsuccessful, and their failure resulted in a substantial monetary loss by the common stockholders by virtue of the necessity of paying to the preferred stockholders compensation for the delay in payment of the additional amounts to which they were held to be entitled and because it subjected their residual interest in the estate to the burden of paying larger allowances than would otherwise have been warranted in connection with the participation of preferred stockholders' representatives in that litigation.

"We assume, particularly in view of the outcome in the District Court and in the Court of Appeals, that the question of law involved was a doubtful one, until resolved by the Supreme Court. We assume also that there was room for a reasonable difference of opinion as to whether, as of the time court contest was undertaken, the prospects of ultimate success were too doubtful to compensate for the risk of prejudice to the class sought to be represented. Nevertheless we cannot find that Engineers' management was unreasonable in concluding that the best interest of the common stockholders demanded that there be no court contest. Under these circumstances, we are of the opinion that no compensation may be allowed for services rendered by these applicants in their unsuccessful efforts." (Emphasis added.)

This memorandum of the Commission specifies the standard applied by it to determine the eligibility of the appellees for compensation from the company assets for their services as counsel in the Holding Company Act reorganization. That standard may be fairly stated as follows: When stockholder groups contest a plan submitted by management, primarily in the judicial phase of the review of the plan, and are ultimately unsuccessful, their counsel may not be compensated from the estate. The issue in this case is the validity of this standard utilized by the Commission. At the outset it is necessary to determine the extent of the court's reviewing power in determining the validity of that standard.

In determining the allowable scope of review of Commission action, the Administrative Procedure Act is applicable. See Loss, Securities Regulation 1138. Section 10 of the Act, 5 U.S.C.A. § 1009 provides: "Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion * * * (e) * * * the reviewing court shall decide all relevent questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of any agency action." In reviewing Commission action, the Supreme Court, in S. E. C. v. Chenery Corp., 1947, 332 U.S. 194, 207-208, 67 S.Ct. 1575, 1582, 1760, 91 L.Ed. 1995, the second Chenery case, has specified the scope of inquiry, saying that "The wisdom of the principle adopted is none of our concern"; that "The facts being undisputed, we are free to disturb the Commission's conclusion only if it lacks any rational and statutory foundation"; and that "The very breadth of the statutory language precludes a reversal of the Commission's judgment save where it has plainly abused its discretion in these matters." But in the last paragraph of Mr. Justice Murphy's opinion, 332 U.S. at page 209, 67 S.Ct. at page 1583, he said: "The Commission's conclusion here rests squarely in that area where administrative judgments are entitled to the greatest amount of weight by appellate courts. It is the product of administrative experience,...