USCA1 Opinion

September 21, 1994

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 93-1889
FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER
OF NEW BANK OF NEW ENGLAND, N.A.,
Plaintiff, Appellee,
v.
FEDDERS AIR CONDITIONING, USA, INC.,
Defendant, Appellant.
____________________
No. 93-1890
FEDDERS AIR CONDITIONING, USA, INC.,
Plaintiff, Appellant,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER
OF BANK OF NEW ENGLAND, N.A., AND AS RECEIVER OF
NEW BANK OF NEW ENGLAND, N.A., ET AL.,
Defendants, Appellees.
____________________
ERRATA SHEET
ERRATA SHEET
On page 2, line 1, replace "1886," with "1986,".
On page
"bank"),".

4, line 5, first

On page 12,
"[$250,000],".

line

5,

full paragraph,

paragraph 2,

replace "bank),"" w

replace

"{$250,000],"

On page 13, line 6, first

"precludes".
On page
"Williams".

14,

line

On page 14, line

word "attorneys'".

3,

full paragraph, replace "preclude" w

paragraph

4, paragraph 2,

2,

replace

add the word

"Williams'"
"of" before

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 93-1889
FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER
OF NEW BANK OF NEW ENGLAND, N.A.,
Plaintiff, Appellee,
v.
FEDDERS AIR CONDITIONING, USA, INC.,
Defendant, Appellant.
____________________
No. 93-1890
FEDDERS AIR CONDITIONING, USA, INC.,
Plaintiff, Appellant,
v.

FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER

OF BANK OF NEW ENGLAND, N.A., AND AS RECEIVER OF
NEW BANK OF NEW ENGLAND, N.A., ET AL.,
Defendants, Appellees.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________

Richard d'A. Belin with whom Michael A. Albert and Foley, Hoa
__________________
__________________
___________
Eliot were on brief for appellant.
_____
Marta Berkley, Federal Deposit Insurance Corporation-Legal,
_____________
Kathleen C. Stone with whom David C. Aisenberg and Williams & Grain
_________________
__________________
________________
were on brief for appellees.
____________________
September 15, 1994
____________________

BOUDIN, Circuit Judge.

On December 1, 1986, Fedders Air

_____________
Conditioning,

USA, Inc. ("Fedders")

signed a

contract with

Liberty Effingham Limited Partnership ("Liberty") to sell

Liberty a very large
by

Fedders.

warehouse in Effingham, Illinois, owned

The warehouse

price was $7 million.

a tenant,

to

covered 10

The warehouse

Sherwin-Williams, and

acres and

the sale

was then under lease to

the contract

provided that

Liberty would assume Fedders' obligations as landlord with an

important qualification concerning roof repairs.
The Sherwin-Williams lease
make certain roof
eliminate

repairs, as well as other

leakage.

expense.

Liberty

for any

would

alterations, to

In the sale of the warehouse to Liberty,

it was intended that

its own

provided that Fedders

Fedders would make the roof

Accordingly, Fedders agreed

loss

or expense

to Liberty

repairs at
to indemnify

arising under

specific repair provisions of the Sherwin-Williams lease.

assure Fedders'
$7 million

performance, the parties agreed

purchase price

to be

paid

To

that of the

by Liberty,

Fedders

would place $250,000 in escrow with Bank of New England ("the

bank").
Liberty made a deposit payment of $50,000 to Fedders and
originally intended to give Fedders the balance--$6,950,000-at the closing; Liberty expected
Bank of

New England and

itself from

to borrow $6.7 million from

to furnish

its own account in

-2-2-

the balance

the same bank.

($250,000)
Fedders, it

was

intended,

England

return

$250,000 to

Bank

of New

to be held in an escrow account for Fedders, pending

completion of
(The

would then

Fedders' repair obligations

stated figures

are

approximate, as

under the

lease.

there were

other

minor adjustments involved in the closing.)

At some point prior
parties that

instead of

balance due on
$250,000
the

having the

the purchase

to the

bank transmit the

to Fedders and

then take

full
back

for the escrow account, it would be simpler to have

bank

Fedders

to the closing, it occurred

retain $250,000

for

only the net amount.

At the

the escrow

account

The parties

closing in December

and pay

agreed to follow

this

course.

1986, Fedders was

paid

the $6.7 immediately due to it (the $7 million purchase

less the $50,000 deposit and $250,00 escrow).

For

its part,

promissory

note

Liberty

for $6.7

gave Bank
million

needed to complete the purchase.

of

New England

to cover

the

its

bank loan

The bank in turn signed the

escrow agreement acknowledging that the bank had received the

$250,000 "deposit" to
"commercial

bank

be held

money

market

in escrow and
account"

invested in

(unless otherwise

directed).

In fact, for reasons that are not explained, the

bank did not set up the escrow account, either then or later.
Although it
appears

held Liberty's note

to have

recorded a

for $6.7 million,

draw-down on

the loan

the bank
of only

$6,450,000.

-3-3-

After

the

complete the

closing

Fedders

roof repairs.

entire roof at

Liberty

not

repair cost from

satisfactorily

eventually replaced the

a cost of over $1 million.

brought suit against Fedders

recover the

did

In 1987, Liberty

in Massachusetts state court to

Fedders.

Later

Liberty added

Sherwin-Williams as a defendant, to obtain declaratory relief

against it;

and Sherwin-Williams

then claimed

damages from

Fedders and Liberty on account of roof leaks it had suffered.

In

December 1990 Liberty assigned

Bank of New England as part

its claim in

the case to

of a workout of its debt

to the

bank.
In January

1991, Bank

of New England

became insolvent

and

the Federal

receiver.

12 U.S.C.

Liberty claim
N.A.
of

Deposit

Insurance

1821(c)(2).

against Fedders to

Corporation became

The FDIC transferred the

New Bank

("the bridge "bank")," see 12 U.S.C.

___
a purchase

England

and assumption

in turn

agreement.

assumed Bank

liability for deposit

of New

accounts.

of New

New Bank

In July

1991, the

In

the FDIC,

removed the

district

court,

as receiver for

Liberty

see

12

suit against

U.S.C.

of New

England's contractual

dissolved and the FDIC became

England,

England,

1821(n), as part

bank was itself

August 1991

its

bridge

its receiver.

New Bank

of New

Fedders to

1819(b)(2),

and

the
was

substituted for Liberty.

-4-4-

In April
court

1992, Fedders

federal district

in Massachusetts against the FDIC as receiver for both

the failed Bank of

bank.

filed suit in

On

several

New England and for the

theories (insured

dissolved bridge

deposit,

breach

of

contract,
Fedders

breach

of

fiduciary

sought to recover the alleged

original Liberty action

Fedders action.

unjust

enrichment),

$250,000 escrow.

against Fedders, previously

to the district court, was

bench

duty,

removed

partly consolidated with the

The district court tried the

trial beginning on April 12, 1993.

The

new

two cases as a

Shortly before the

trial, Sherwin-Williams made its own settlement and ceased to

be a litigant.
The

district judge,

against Fedders

in the

sitting as

the factfinder,

original Liberty action

the FDIC $775,000 for the roof replacement.

the district
the

judge also rejected Fedders'

escrow amount

Fedders was

from

the FDIC.

found

and awarded

At a later date,
claims to recover

The court

found

that

not a "depositor" entitled to recover an insured

deposit because no escrow

account had ever been established,

saying:
The escrow account that [the failed Bank
of New England] was contractually bound
to create and formally acknowledged that
it had created was in fact never created.
Fedders therefore
never acquired the
status of a "depositor," in the sense
relevant
to the
present litigation,
notwithstanding [the bank's] assurances
in the Escrow Agreement.
Consequently,
FDIC as receiver did not succeed to any
-5-5-

"deposit" liability associated

phantom escrow account . . . .

with the

Although the failure to set up such an account gave Fedders a

contract claim against Bank of
that

Fedders had waived this

within the time fixed

New England, the court

claim by failing

Finally, returning to
court

awarded

the FDIC,

England, attorneys'

to assert it

for asserting claims against

as receiver for a failed bank.

12 U.S.C.

fees in the

the FDIC

1821(d).

the original Liberty

as receiver

found

for

action, the

New Bank

of New

amount of $64,855.91.

The

court ruled that Fedders was liable for this amount under its
indemnity

agreement

with Liberty,

Liberty's

rights having

been assigned to the failed bank, then acquired by the bridge

bank pursuant

to the

purchase and assumption

finally held by the FDIC as the latter's

attorneys' fee award was

agreement and

receiver.

How this

calculated is an issue to

which we

will return.
Fedders then appealed to this court.
the district court's
the

FDIC relating

contests

original Liberty

disposition of Fedders' claims

to

the award

First, it disputes

the escrow

amount.

of attorneys'

fees to

action;

Fedders

does

not

against

Second, Fedders
the FDIC

in the

challenge

the

underlying award of $775,000 to the FDIC for Fedders' failure

to repair the roof.

We begin with the escrow

issue which is

by

far

the more

complicated

of

the

two, and

thereafter

address the attorneys' fees award.

-6-6-

At

the

Fedders'

outset,

it

central claim

"deposit"

in

Bank

committed

itself

of
to

is important

to

on

appeal is

that

it has

New

England,

which

the

honor

without regard

$100,000 limitation or any objection

a "deposit" claim.1
alleged commitment
within the

regulations make

to

of the

FDIC

a
has

normal

as to the timeliness of
dispute this

that there was

statute and,

the bank's records

that

made

the

The FDIC in turn does not

but asserts

meaning

understand

no "deposit"

further, that

conclusive.

This

its
is a

civil case, and we take the issues as the parties have framed
them.
One begins
The

in construing

statutory definition

U.S.C.

a statute with

of deposit is

its language.

two pages

long, 18

1813(l), but Fedders relies principally upon clauses

_

that include as deposits two specific categories: "the unpaid

balance of money or its equivalent received or held by a bank

. . in the

usual course of business and

for which it has

given or is obligated to give credit," and "money received or

held

by a bank .

. . in the usual

course of business for a

____________________
1The FDIC as receiver is not the insurer of deposits-the FDIC insures in its corporate capacity--but the FDIC does
pay off
insured deposits, taking the
money from the
appropriate insurance fund.
12 U.S.C.
1821(f).
The FDIC
waived the ordinary $100,000 limit in this case. It also has
not claimed that the request for return of an insured deposit
is untimely, nor has it offered any objection based on its
separate capacity as insurer and receiver.
-7-7-

special or

specific purpose .

funds . . . ."
In

12 U.S.C.

response,

underlined phrase
under

the

. .

including .

Fedders: money or its

escrow

1813(l)(1), (3).
_
FDIC

has

chosen

that is part of the

both subparagraphs

. .

of

to

stress

the

definition of deposit

section 1813(l)
_

relied on

equivalent received or held by

________________

by

a bank

in

the usual course of

the

term "account"

business.

which

The

FDIC also underlines

appears only

in subparagraph

1,

defining "deposit" to include

the unpaid balance of money or its equivalent
received or held by a bank
. . . in the usual
course of business and for which it has given or is
obligated to give credit, either conditionally or
unconditionally, . . . to a[n] . . . account . . .
.
Here,

says

the

FDIC, Bank

of

New

England

receive any money from

Fedders, and there was no

On the

language,

basis

number of

of this

cases, several

of which

the FDIC

"did not
account."

distinguishes

are older

helpful to Fedders, such as FDIC v. Records, 34

____
_______

but otherwise
F. Supp. 600

(W.D. Mo. 1940) (deposit insurance covered payment to cashier

who pocketed
money
v.

the cash).

More important,

the reference

to

"received or held" encourages the FDIC to rely on FDIC

____

Philadelphia Gear Corp.,

________________________

476 U.S.

analysis" in that case, the FDIC tells

426

(1986).

"The

us, "is much the same

in this case."
We can easily put
points

to one side two

of the FDIC's

based on the statute and Philadelphia Gear.

_________________
-8-8-

three

The fact

that Fedders paid no money to the bank means nothing; Liberty

gave the bank

a note, readily described as

"the equivalent"

of money, to cover a loan by the bank to Liberty, $250,000 of

which

the bank promised to

Fedders.

Thus, the

retain as an

equivalent

of

escrow deposit for

money was

"received."

Indeed, nothing in the substance of the transaction

different
bank

if, as

had

given

the parties
Fedders

had originally

the

$250,000

would be

intended, the

and

Fedders

had

immediately given it back to the bank.

Philadelphia Gear is likewise
_________________
Supreme Court

rejected

a claim

credit backed by a contingent

"deposit"

under

admitted that an

section

not in point.
that

There the

a standby

letter

promissory note qualified as a

1813(l)(1).
_

Although

ordinary letter of credit

the bank

based on
letters

to pay the

seller only

if the

an administrative practice of
as

deposits.

In

accepting

the

FDIC

would be treated

as a deposit, it distinguished the standby letter

by

of

(a promise

buyer did not)

not treating standby

this

longstanding

interpretation, the Court noted that the buyer who authorized

the

letter had

not even

contingent promise to pay.

__________

given the

bank anything

beyond a

Id. at 440.
___

But Philadelphia Gear did not say that it is a condition

_________________

of all "deposits" that hard currency be paid to the bank; the

Court

was

standby

concerned

with distinguishing

and ordinary letters of

credit.

narrowly
In

between

fact the Court

-9-9-

noted the FDIC's

own concession that

credit

seller's

in

the

unconditional promissory
440.

Here, such an

favor,

an ordinary letter

backed

note, would be

by

of

the

buyer's

a deposit.

Id. at
___

unconditional note for

a sum including
_________

the $250,000 escrow was given to the bank.

Although

the

Philadelphia Gear
_________________

"held
are red

or

received"

herrings, the remaining

the FDIC's statutory argument--the statutory

"account"--does
money

language

deserve attention.

and

point in

reference to an

Under the

statute, the

or its equivalent must not only be held or received by

the bank,

but must (unless another

alternative condition is

satisfied) be a payment "for which [the bank] has given or is

obligated to give credit

. . . to a[n]

. . . account."

12

U.S.C.

1813(l)(1).
_

account,

Here, the

so the money or

FDIC

says, there

its equivalent cannot

was no

be deemed a

deposit.
We
that

there

$250,000
its

agree with the

was no

account

established

equivalent for which the

pertaining to

the

the bank

for Fedders.

credit to an

or its equivalent for which

promissory note to

$250,000 of which
account

district court,

bank "has given"

obligated" to give credit

gave a

with the

escrow; but the statute speaks not only of money or

account but also money

"is

FDIC, and

to an account.

Here Liberty

the bank in exchange

promised to place

Although

the bank

the bank

for a loan,
in an

failed

escrow

either to

-10-10-

create the account or deposit the money in it, it does appear

that it was "obligated" to give credit to an account for this
amount.
Fedders relied on the "obligated" language in its brief,
and the FDIC has not

answered it.

There may be

answers not

obvious to us in

this very technical area.

paragraphs of section
but

elaborately,

Still,

1813(l) define "deposit,"

_

to

cover

very

large

the five

technically
number

of

transactions, many of which might not be called deposits by a

lay person.

In sum, we hold that the promissory note was the

equivalent of money; that it was held or received by the bank

in

the usual course of business

to support a loan; and that

in

exchange the bank was "obligated" to credit an account in

the amount of $250,000.

We

do

Fedders that
the
We

not reach

the

alternative

the "escrow" reference in

transaction a deposit

argument made

by

subparagraph 3 makes

even if subparagraph

1 does not.

do note that there is no parallel "obligated" language in

subparagraph
actually

3,

and the

FDIC could

argue that

only funds

treated by the bank as escrow funds are embraced by

subparagraph 3.

But the

argument that an escrow

is automatically

FDIC has made

no expressio unius
________________

payment excluded from subsection (3)

outside subsection

any such exclusivity is implied.

-11-11-

(1), and we

doubt that

The FDIC's other line of defense

under

12 C.F.R.

account

records

purposes of

on

of

the

it

asserts that

failed bank

are

"the deposit

controlling
___________

determining deposit insurance coverage."

section, after
funds

330.3(h),

is its own regulation;

explaining that ownership under

deposit is

necessary

for
That

state law of

condition for

insurance

coverage, continues:
"Deposit insurance coverage is also a
function of the deposit account records
of the insured depository institution . .
. which, in the interest of uniform
national rules
for deposit insurance
coverage, are controlling for purposes of
determining deposit insurance coverage."
The

FDIC then tells us that "numerous courts" have held that

the FDIC
the

may rely "exclusively" on the

failed

institution

to

"account records" of

determine

deposit

insurance

to see why

the FDIC

coverage.
Assuming

this to

be so,

believes

that "account

Far from

defining "account

regulation states
variety

of

certificates of deposit,
and
___

"other

books

records" are
records"

that "deposit

specific

and

we fail

items

missing in

this case.

narrowly, a

companion

account records" include

(e.g.,
____

account

authorizing corporate
records of

the

insured

ledgers,

resolutions)
depository

institution [including computer records] which relate

to the

depository institution's deposit taking function . . . ."

C.F.R.

12

330.1(d) (omitting exclusions not here relevant).

-12-12-

In this case the district court made a specific finding,

not

challenged by

the

FDIC on

appeal,

that Bank

of

New

England "held . . . . a copy [of the escrow agreement] in its

records."

This agreement,

signed

on behalf

explicitly acknowledged "receipt of said

denominated the "Deposit"; and
deposit to
account"
Fedders

be invested
(unless

in writing).

in a

different
In

of the

bank,

amount [$250,000],"

the document provided for the

"commercial bank money
investment was

other words, the

market

approved

by

bank's books and

records did include evidence of the "deposit."

We

might have a different case if the FDIC had disputed

the amount of the

That regulation
conclusive

as

deposit and invoked 12 C.F.R.

does purport

to the

to make the

"amount" of

330.3(i).

"deposit account"

deposit.

Assuming a

"deposit account" is something narrower than the bank's books

and

records--which

challenged

the

may

$250,000

subsection (i).
is fair to

it

well

figure

be--the
nor

FDIC

has

it

Once again, after years of

resolve the

case in the

has

never

relied

upon

litigation, it

terms that the

parties

have presented it.

Accordingly, we think
case to plunge
bear

on

it is unnecessary for

ourselves into the

whether

and

when

us in this

morass of decisions

erroneous
_________

bank

records

conclusive against the depositor and when correctly

but unauthorized activity
____________

that
are

recorded

by a bank (e.g., paying an insured

____

-13-13-

account to a
cases

thief) precludes

reflect the

severe

an insurance

tension between

claim.2
two values:

legitimate expectations of the depositor and the

These
the

regulator's

desire to rely upon existing records to expedite the handling

of

bank emergencies.

point the same way.

Not surprisingly, the cases do not all

Here, however, the FDIC's

premise that

the

"deposit

account

records"

defeat

Fedders'

claim

is

mistaken.
What
court's
fees

remains

Fedders

award of attorneys' fees.

was

Fedders

is the

the

clause

in the

attack

on the

The only

indemnity

district

basis for such

agreement

between

and Liberty incident to the purchase and sale of the

warehouse and the latter's assumption of the Sherwin-Williams

lease.

The agreement, as

required

Fedders

arising

from

construed by the

to indemnify

litigation

provisions of the lease.

Liberty for

related

to

district court,
attorneys' fees

certain

roof-repair

The FDIC has succeeded to Liberty's

rights of indemnification.
In the district court the FDIC
covered all
___

of

its attorneys'

repair action originally brought

fees

urged that the indemnity

incurred in

the

roof

by Liberty against Fedders.

The district court, however, determined that only the portion

____________________
2See, e.g., In Re Collins Securities Corp., 998 F.2d 551
___ ____ _____________________________
(8th Cir. 1993); Abdulla Fouad & Sons v. FDIC, 898 F.2d 482
_____________________
____
(5th Cir. 1990); Jones v. FDIC, 748 F.2d 1400 (10th Cir.
_____
____
1984); FDIC v. Irving Trust Co., 137 F. Supp. 145 (S.D.N.Y.
____
________________
1955); FDIC v. Records, 34 F. Supp. 600 (W.D. Mo. 1940).
____
_______
-14-14-

of Liberty's or

the FDIC's attorneys'

Sherwin-Williams
Williams

in

agreement.

own

that

lease

case,

claims,
were

fees that related

asserted

covered

by

by
the

Sherwinindemnity

Sherwin-Williams ceased to be a party after

pretrial

itself.

On appeal, this construction of the indemnity is not

by

but

either side.

shortly

The

only

before

issue

the

very

lengthy

disputed

activity

to

concerns

trial

the

district court's apportionment of counsels' bills.

Because

the

Liberty

and

FDIC counsel

had

not

kept

records to segregate particular hours to work relating to the

Sherwin-Williams' claims,
apportionment.

the district

Of the $165,000 of

court

made its

own

attorneys' fees incurred

by Liberty or the FDIC in Liberty's action, counsel estimated

for the court that 50 percent
attributable to the

of the total attorney time was

Sherwin-Williams claims.

The

district

court found this boilerplate conclusion insufficient standing

by

itself; but its own evaluation of the record persuaded it

that the work done by Liberty or FDIC counsel on the SherwinWilliams claims justified an

award of just under

$65,000 in

attorneys' fees, calculated as follows:

First,

of the

fees incurred

by Liberty

between April

1988 and March 1991, the district court found that just under

$25,500

was

attributable

(rather than
percent

to

the

Sherwin-Williams

claims

the $36,000 claimed by the FDIC based on its 50

apportionment).

The

court

examined

each of

for each

one

the

-15-15-

invoices

submitted

by

counsel

separate estimate (ranging from

portion of each invoice

and

made

15 to 50 percent) as

so attributable.

The court

to the
said it

was resolving all ambiguities against the FDIC since it

bore

the burden of proof as to fees.

Second, of the fees incurred by the FDIC, as receiver of
the

banks who

found

that

just

Sherwin-Williams
the FDIC).
the

succeeded
under

to Liberty's
$40,000

claims (instead of

The court

of

the relevant

assigned 25 percent of
8, 1993

attributable
the $46,500

court
to

the

claimed by

assigned to those claims 50 percent of

fees incurred prior to

review

was

interest, the

December 31, 1992,

docket

entries;

based on its

and it

similarly

the fees between that date

and April

(when Sherwin-Williams settled its

claims) since by

1993 the roof repair claim against Fedders was

trial

and

the

Sherwin-Williams

damage

moving toward
claims

toward

settlement.
Fedders'

argument on

this

appeal is

The company does not attack any

made by the
indemnity

court.

Illinois law;
the

amount

attorneys'
detailed

of the specific computations

Instead, it says

commitment to

Liberty is

simply that
a contract

that Illinois law requires

and

basis"

fees

straightforward.

for

attorneys'

are promised

by

Fedders'

governed by

"detailed proof of
fees

contract;

proof was not supplied in this case.

even

where

and that

such

Fedders' main

-16-16-

authority,

Kaiser
______

N.E.2d 424

(Ill.

attorneys'

fee

maintained during
facts

and

predicated."

v. MEPC American Properties, Inc., 518

________________________________
App.

1987),

claimant

must

the course

computations
Id. at 428.
___

does

of
upon

indeed

present

say

"detailed

the litigation
which

that

the

the

records

containing
charges

are

We will assume from

the district court's description of

what the court had to do (and from the FDIC's silence on this
point)

that

the

FDIC

counsel certainly

did

not

furnish

information needed to separate the Sherwin-Williams time from

the remaining time.

But while such a deficiency would surely

permit

the district

nothing

in Kaiser
______

fill

the gap

in

court

to reject

requires that the

proof

itself.

In

the fee

application,

court do so
fact,

if it can
__

in Kaiser
______

the

appellate court appeared to agree with the claimant that "the

trial

court ha[d] the discretion

the record

[i.e.,
____

reasonable

fee";

discretionary

"the entire
but the

decision

examination necessary

to consider the content of

case file"]

court
not

upheld

"to

the trial

conduct

to locate documents and

substantiate individual items.

to determine

the

judge's
in-depth

pleadings" to

518 N.E.2d at 429.

Even if we treat Kaiser as an authoritative statement of

______
Illinois

law--and

licenses, and
judge's

the

FDIC

certainly does

disputes

this--it

not clearly preclude,

own decision to supply

-17-17-

arguably
a trial

from elsewhere in the record

supporting
neglected

information
to

collect.

precisely this
fee

request

indemnity,
indemnity

and

inferences
Here,

the

that
district

effort, explaining that

was

even

based

on

though

the

more narrowly.

the

court

the FDIC's

reasonable
court

claimant

This course

original

reading

ultimately

made

of

read

the
the

was not required, but

neither do we see why it was forbidden.

Fedders identifies no
It does not try to
deficient beyond
the inadequate
reflect all

other error in the

show how the fee request information

the obvious failure to

boilerplate 50

of the work

percent

the

decision

invoice
that

(which were

are

several pages
25 percent

to

irrational
the

narrow

period).

to

Nor does

upon the district court's own

to the Sherwin-Williams

they

ourselves

to assign

was

allocate (except by
estimate alleged

over a lengthy

Fedders offer specific attacks

computations

calculations.

or

of

long)--for example,
the April

claims--by seeking
without

challenge

made

basis.
by

1, 1988,
to show
Limiting

Fedders,

we

conclude that the award of attorneys' fees was justified.

More broadly, we think that the district court admirably
handled this complex, double-barreled law suit and agree with
its

treatment of practically all

the single one where

of the issues

raised.

On

we part company--the "obligated" clause

of section

1813(l)(1)--we note
_

that the district

court did

-18-18-

not discuss the clause, possibly because

it was not stressed

by counsel at the trial or the subsequent hearing.

The judgment
and the matter

remanded to

permit the judgment

FDIC to

is affirmed in part and reversed in part

_______________________________________
the district court

entered against Fedders in

be adjusted--whether by

reduction or

in order

to

favor of the
by a

counter

judgment in favor of Fedders--to reflect the $250,000 deposit

that the bank was obligated to escrow (including any interest
adjustment that the district
that is now owing to Fedders.
It is so ordered.
________________

court may find appropriate) and

No costs.

-19-19-