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In re Chicago

decided: February 8, 1988.

IN THE MATTER OF CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD CO., DEBTOR. APPEAL OF STICKNEY CORPORATION AND DAVID D. ROSENSTEIN, APPLICANT-APPELLANTS,
v.
CHICAGO MILWAUKEE CORPORATION AND THE DEBTOR, OBJECTOR-APPELLEES



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 77-B-8999 # 64, Prentice H. Marshall, Judge.

Bauer, Chief Judge, Coffey, Circuit Judge, and Eschbach, Senior Circuit Judge.

Author: Coffey

COFFEY, Circuit Judge.

Attorney David D. Rosenstein appeals from a district court order denying his application for attorney's fees to compensate him for his work on the bankruptcy court supervised reorganization of the Chicago, Milwaukee, St. Paul and Pacific Railroad Company. We affirm.

I.

This case has its genesis in the reorganization of the Chicago, Milwaukee, St. Paul and Pacific Railroad Company (the "Milwaukee Road") commenced in the United States Bankruptcy Court for the Northern District of Illinois in 1977. Initially, attorney Rosenstein participated in litigation against the Milwaukee Road during 1968, representing the preferred shareholders of the Milwaukee Road before the Interstate Commerce Commission in two class action lawsuits challenging another corporation's (Northwest Industries) offer to exchange its preferred stock for Milwaukee Road's preferred stock. Among the shareholders he represented was Morton Weinress, a Chicago investment banker who individually had substantial holdings in the securities of the Milwaukee Road and at the same time acted as a financial advisor to other investors who held substantial interests in railroad securities.

In 1975, Weinress, who was acting as the class representative of debenture holders of the Milwaukee Road, in a federal class action lawsuit referred to as the McDonald litigation (named after one of the plaintiff/debenture holders) to force the railroad to pay interest on its income debentures, once again retained Rosenstein. The district court approved a settlement in the lawsuit (1977). McDonald and some of the other plaintiffs objected to and appealed the court-approved settlement on the ground that Weinress had a conflict of interest based upon his acting in the dual capacity as class representative of debenture holders and also as an individual owner of both stock and debenture securities of the railroad. We affirmed the settlement, McDonald v. Chicago Milwaukee Corporation, 565 F.2d 416 (7th Cir. 1977), and approved an award of attorney's fees to Rosenstein of $225,000. Because the Milwaukee Road did not pay the attorneys fees before the railroad filed for bankruptcy on December 19, 1977, Rosenstein filed as a creditor of the estate. The proposed plan of reorganization, filed on March 31, 1983, included a provision for the payment of 5 % interest on the claims of trade creditors.

In 1981, Rosenstein proposed to Basil Vasiliou, an investor associated with a company named Bronstein Factors, Inc., that Vasiliou purchase Rosenstein's McDonald claim at a discount. Vasiliou decided against purchasing the claim, but in June of 1981 he and one of his associates joined Rosenstein and Weinress in forming the Stickney Corporation for the express purpose of acquiring "trade creditor" claims against the debtor.*fn1 At the time of the incorporation, each of the four investors initially purchased 25 % of Stickney's stock for $5,000. Some time later, in December of 1981, the four investors were called upon at this time to loan money to the corporation, and each of them loaned the Stickney Corporation $20,000 for a total investment of $25,000 by each investor.

On May 1, 1982, the Stickney Corporation redeemed the interests held by Vasiliou and his associate, and cancelled their $20,000 notes in exchange for about half of the trade creditor claims Stickney had acquired. After May 1, 1982, Rosenstein and Weinress were the only remaining shareholders of the Stickney Corporation each holding a 50 % interest. After Weinress suffered a stroke in January of 1983, he executed a general power of attorney in favor of his wife Jane Weinress. Mr. Weinress died a year later in January, 1984.

Some time during May, 1983, in what the parties agree was an undocumented transaction, the Stickney Corporation repurchased Weinress's stock and Rosenstein became Stickney's president, sole director, and sole shareholder. Although Rosenstein is uncertain exactly when in May, 1983 this transaction occurred, the company's May 20, 1983 annual report listed him not only as Stickney's president but also as the sole director.

Rosenstein testified that in early 1983, the Stickney Corporation (Rosenstein owned a 50 % interest), in an attempt to obtain an increased interest rate from the debtor on its trade creditor claims, retained Rosenstein. Jane Weinress, now acting on behalf of her husband pursuant to her general power of attorney, signed the written retainer agreement (drafted by Rosenstein in letter form). The retainer agreement provided that Rosenstein would not only work on behalf of the Stickney Corporation to obtain a higher rate of interest on its trade creditor claims, but "also on behalf of the entire class of trade creditor claimants. . . " Rosenstein's agreement also recited: (1) the provisions of the pending reorganization plan dealing with the payment of trade creditor claims, (2) that contesting the proposed rate of interest would be time consuming, and (3) that Stickney may attempt to seek reimbursement from the bankruptcy estate if its efforts to obtain a higher rate of interest for trade to creditors was deemed beneficial to the reorganization. The letter continued:

"While you (Rosenstein) should maintain records of your time, notwithstanding the time spent, you will be paid by Stickney: (a) not more than $15,000 during the balance of the calendar year 1983, (b) not more than $15,000 during 1984, and (c) in total, not more than the greater of either (i) $50,000, or (ii) one-half of the amount that Stickney actually collects on its claims less the amount that Stickney would have collected on such claims if the 5 % simple interest rate proposed in the plan was approved."

In an obvious attempt to allow him to represent other trade creditor claimants, the letter also contained a provision authorizing him to do so, but stating that in such a situation, "it is expected that they (other trade creditors) will bear a pro-rata share of your fees and costs."

Pursuant to his retainer agreement, Rosenstein began to participate in the Milwaukee Road reorganization proceedings in May of 1983. Rosenstein testified before the special master that Stickney engaged his services for the purpose of "seek[ing] to obtain a higher rate of interest for the claims of trade creditors." At some time during 1985, another trade creditor, Bronstein Factors, retained Rosenstein for the same purpose as Stickney: to gain a higher rate of interest on its trade claims ...


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