SECURITIES INVESTOR PRO. CORP. v. Charisma Sec. Corp.

• Decision Date: 26 February 1974
• Docket Number: No. 72 Civ. 981(MP).,72 Civ. 981(MP).
• Citation: 371 F. Supp. 894
• Parties: SECURITIES INVESTOR PROTECTION CORPORATION, Plaintiff, v. CHARISMA SECURITIES CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of New York

371 F. Supp. 894

SECURITIES INVESTOR PROTECTION CORPORATION, Plaintiff, v. CHARISMA SECURITIES CORPORATION, Defendant.

No. 72 Civ. 981(MP).

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

February 26, 1974.

Theodore H. Focht, Michael E. Don, Washington, D. C., for plaintiff.

Edwin L. Gasperini, Trustee, pro se.

Gasperini, Koch & Savage, New York City, for trustee.

ORDER ON APPLICATION FOR FEES

POLLACK, District Judge.

In this liquidation under the Securities Investor Protection Act (hereinafter "SIPA"), 15 U.S.C. §§ 78aaa-78lll, the Trustee and his counsel (the law firm which is headed by the Trustee) have applied to this Court for a final fee allowance. The amount sought totals some $30,000 — $5,000 for the Trustee, and $25,000 for his firm.¹ That figure purports to represent compensation for 77.7 hours of the Trustee's time and 476.4 hours of counsel's time, asserted by the applicants to have been necessarily spent on this liquidation. Midway in the proceedings, the Trustee and his law firm applied for an interim fee allowance of $8,075; this was denied as premature "without prejudice to the right of the applicants to present requests for allowances of compensation upon the practical completion of the administration of the estate involved." Securities Investor Protection Corp. (hereinafter "SIPC") v. Charisma Securities Corp., 352 F.Supp. 302 (S.D.N.Y.1972).

The facts relating to this liquidation, its scope, relatively narrow problems, absence of assets, and rather prosaic character, have already been set forth in detail in that prior opinion and need no repetition. Thereafter, on November 2, 1973, the Trustee filed his "Final Report and Account" which was approved by the Court and an order was entered terminating this liquidation except for the allowance of compensation to the applicants; this was reserved for separate order herein.

The background of the administration of this liquidation is particularly significant with respect to the instant applications. Shortly after his appointment, the Trustee hired accountants highly experienced in financial and securities matters. Those accountants undertook and performed most of the significant tasks herein. They collected such records of the company as were to be had; they examined those records carefully and prepared work sheets; they identified and communicated with all potential claimants; these boiled down to a total of only 37 customers; they ascertained that only 24 customers presented allowable claims and that each had only a comparatively small claim; and they catalogued each claim presented and submitted a recommended disposition to the Trustee.² Scrutiny of the claims file shows that the input thereon of the Trustee and his counsel both before and after the work of the accountants was largely limited to the preparation of a single "form" letter to be mailed to each claimant, as well as a short reply, prepared in terms following the recommendation of the accountants on the validity and extent of the claim. In virtually every instance, all substantive work — including the subsequent contacts and negotiations with the claimants, and the fielding of controversies presented therein — was performed by the accountants. The accountants' determination of the validity and the allowable amount of the claims presented was covered in three reports to the Trustee which, without exception, became the basis of the rejection of a claim or the payment of the claim by SIPC on request of the Trustee. For their professional services, the accountants were paid by SIPC on request of the Trustee the sum of $13,773.75.³

The total sums paid out to claimants in this liquidation was approximately $43,000. Together with the fees paid to the accountants, the applications before the Court would result in total fees for administering those claims of $43,773.75 (plus stenographic charges which SIPC has apparently paid to the Trustee or his law firm). The total would represent a cost of about $1,000 for every $1,000 of net equities returned to Charisma's customers.

A fee allowance, whether in Chapter X proceedings or satellites thereof must bear a sensible and practical relation to the size of the estate, the number of claims involved and the actual services reasonably and necessarily required in the administration. The value of the estate is a highly significant factor to be appreciated. See 352 F.Supp. at 307. See also SEC v. Quodar Equities, Ltd., 372 F.Supp. 487 (E.D.N. Y.1973) ("The Trustee's fee must be related to the value of the estate.")

To be sure, the Trustee and his counsel were additionally faced with the somewhat unenviable task of uncovering Charisma's assets — which here totalled less than $15 — and reconstructing the events leading to the corporation's downfall. Furthermore, at least two of the claimants presented some complexities that had to be resolved apart from the benefit of the accountants' recommendations. Nonetheless, the responsibilities undertaken, the routine and simple tasks performed, and the work exhibited herein simply fail to justify the need for the claimed services or the fees requested.

Apart from the foregoing, both Trustee and his counsel have repeated the mistake of their earlier interim fee application in attempting to bill their time at the "going rates" for law firms in New York.⁴ As noted in that opinion, the "going rate" suggested here is not necessarily the standard for determining allowances in simple, routine liquidations which involve little more than accounting ascertainment and payment of net equities of stock brokerage customers. See also Surface Transit, Inc. v. Saxe, Bacon & O'Shea, 266 F.2d 862 (2d Cir. 1960).

As indicated previously, the SIPA requires that liquidations be conducted in accordance with, and as though they were proceeding under, Chapter X of the Bankruptcy Act. 15 U.S.C. § 78fff(c)(1). See also SEC v. Packer, Wilbur & Co., Inc., 362 F.Supp. 510 (S.D.N.Y.1973). That area of law has been plowed extensively for over 35 years, is well known, and easily navigated by practitioners in the field. That Act provides that "the judge may allow . . . reasonable compensation for services rendered . . . in a proceeding under this chapter . . . by the trustee and . . . his attorneys. . . ." 11 U.S.C. § 641. While it is true that the "economical spirit" of the Bankruptcy Act does not limit the allowance of fees in a SIPC liquidation, neither should this Court permit such a liquidation to be "turned into an opportunity for vicarious generosity at the expense of a stricken entity." 352 F.Supp. at 306; see also In re Polycast Corp., 289 F.Supp. 712 (D. Conn.1968). In short, this Court's function is to allow a "reasonable" compensation for such expert legal and administrative work as is reasonably and sensibly required by the circumstances presented, and in fixing the proper fee to "strike a reasonable mean between the two extremes of free choice and forced economy." 352 F.Supp. at 307; see also In re Mabson Lumber Co., 394 F.2d 23 (2d Cir. 1968); In re Westec Corp., 313 F.Supp. 1296 (S.D.Texas 1970); In re Dole, 244 F.Supp. 751 (D.Me.1965).

In this Court's earlier opinion the relevant standards were expressed as follows:

The standards for fee allowances in a reorganization proceeding call for the ascertainment of the level of services required, consideration of the burden that an estate can safely bear, the value of required services and the overall relationship of the compensation to the size of the estate being administered under a concept of reasonable economy of administration. citation omitted.

. . . The Court should take notice of whether professionals or paraprofessionals may be utilized for the services needed, whether the bulk of the work will require the services of accountants rather than lawyers, and whether the work required is legal or clerical in nature citations omitted. 352 F.Supp. at 307.

In addition to the foregoing, the Court must consider the time and labor required, the novelty of the problems presented, and the difficulty of the questions involved. See A.B.A. Code of Professional Responsibility § DR 2-106. Here, the work done in marshalling the assets and determining the liabilities of Charisma, as well as processing the small number of claims, was properly — and, apparently, also actually — a pure accounting function. Accordingly, since the accountants have already been appropriately compensated for their work in that regard, further payment of fees for legal and administrative services superimposed thereon at top legal rates to the Trustee or his law firm, would simply — and wrongfully — duplicate to a material degree the proper fees already paid. Additionally, many of the "administrative matters" cited by the applicants herein realistically involved only routine, non-expert bookkeeping and hence must be appropriately discounted, if not altogether disregarded. See generally In re Mabson Lumber Co., supra; In re Hardwick & Magee Co., 355 F. Supp. 58 (E.D.Pa.1973); see also In re Roustabout Co., 386 F.2d 354 (3d Cir. 1967). The applications call attention to many hours of extensive "research" into the "background of the securities industry."⁵ This area of time spent must be likewise discounted for an allowance in a simple case of this sort, for it is neither the function nor the purpose of the SIPA to compensate lawyers altogether unfamiliar with this field or the securities business for their self-education therein. Under the law, the Court has no function in the selection of a Trustee or his counsel; it merely orders their appointment on the recommendation of SIPC and the wisdom thereof is not now pertinent. However, the Court is entitled to presume that SIPC appoints and recommends attorneys selected for their acquaintance with, if not expertise in, this area (cf. SIPC v. Oxford Securities, 354 F.Supp. 301 (S.D.N.Y., rev'd mem., 486 F.2d 1396 (2d Cir. 1...