12-50073-lmc Doc#348 Filed 10/12/12 Entered 10/12/12 22:48:51 Main Document Pg 1 of 5

IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

IN RE:

X X DELTA PRODUCE, L.P. X X DEBTOR X ____________________________________ X

CASE NO. 12-50073-LMC CHAPTER 11

OMNIBUS OBJECTIONS TO SEVERAL MOTIONS FOR ATTORNEYS FEES The Pumpkin Patch, LLP, Juniper Tomato Grower, Inc., Greenhouse Produce Company, LLC., London Fruit, Inc., and Triple H Produce, LLC. (collectively PACA Trust Beneficiaries), submit their Omnibus Objections to Several Motions for Attorneys Fees, and in support thereof state: I. Special PACA Trust Counsels Omnibus Objections. PACA Trust Beneficiaries incorporate Special PACA Trust Counsels Omnibus Objections to PACA Creditors Fee Applications as if fully set forth herein [D.E. #347].

III.

Harlee Packing, Inc. [D.E. 113 in Superior Case, and 304 in the Delta Case] This creditor seeks fees of $9,516.40 for combined time spent in both the Delta and Superior

cases. As Special Counsel points out, the rates of $410/hour and $460/hour are excessive given the lack of experience in PACA cases, and should be reduced to $300/hour. The 14.8 hours spent x $300/hour = $4,440.00, which needs to be apportioned between the two cases. /// /// /// Page 1

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III.

Muller Trading Company, Inc. [DE 300 and 301] Muller Trading Company, Inc. (Muller) has a qualified PACA trust claim of $24,573.50,

and is apparently seeking $42,561.80 in fees and costs.1 On December 28, 2011, Muller filed a PACA trust complaint seeking $42,561.80 and injunctive relief against Delta and Superior in the US District Court for the Western District of Texas. It was one of three cases filed that day against Delta and Superior, and it was a mere six days before Delta and Superior filed for bankruptcy on January 3, 2012. During the six days (one of which was New Years Day) two attorneys at the Chicago law firm of Freeborn & Peters, LLP billed $6,739.00, and two attorneys at the Chicago firms local law firm in Texas billed $3,149.00, for a total of $13,478.00 during those six days. By comparison, the Undersigned, who has practicing law for 24 years and who likewise specializes in PACA trust cases, also filed a lawsuit against Delta and Superior on December 28, 2011, which sought PACA trust funds of $481,058.00, and from that date through January 3, 2012, billed, together with local counsel, approximately $6,800.00 during those six days. It is suggested that reasonable pre-petition fees for Muller should be no more than $6,800.00. It appears that Muller seeks $29,083.80 in fees for time spent in the bankruptcy case.2 Like the role of a Chapter 7 trustee who serves to protect the interest of unsecured creditors, the idea in this case was that the Court would appoint a Special PACA Trust Counsel and provide him with the power to take the laboring oar to handle those matters that all the PACA trust beneficiaries had in common, and thereby minimize the need for each attorney representing a PACA trust beneficiary act for the benefit of creditor group, and thereby minimize the amount of attorneys fees that would be

$13,686.90 in DE 300, and $28,874.90 in DE 301. Page 2

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drained from the PACA trust res. What was left for each attorney who represented one or more PACA trust beneficiaries to handle were those matters that were unique to a particular creditor, and they generally fell into the following categories: (1) (2) initial consultation with a client creditor; assisting the client creditor with filling out a PACA proof of claim form, which given

the simplicity of the form should take no more than 1 hours time; (3) responding to Special PACA Trust Counsels objections, if any, made to that client

creditors claim to be a qualified PACA trust beneficiary3; (4) overseeing the actions of the Special PACA Trust Counsel (like the role of the

unsecured creditors committee); and (5) communicating with Special PACA Trust Counsel about the status of the case.

It is submitted that the above activities should have taken no more than fifteen (15) hours for each attorney who represented one or more creditors, which at a rate of $350.00/hour would total $5,250.00. To this would be added fees that fall into two additional categories, if any: (6) if an attorney established that that they assisted Special PACA Trust Counsel in

accomplishing a task that did not involve duplication of effort with Special PACA Trust Counsel,

2 3

$42,561.80 less the $13,478.00 incurred in the District Court.

Special PACA Trust Counsel objected to some creditors claims, and the claims were resolved relatively quickly. With one exception, the objections were resolved through voluntary exchanges of documents (there was no formal discovery) and telephonic negotiations between Special PACA Trust Counsel and the attorney for a creditor without the need for a trial. The exception was Special Counsels objection to A&A Concepts claim, in which the Court ruled that A&A Concepts substantially complied with the requirement to preserve its PACA trust rights against the Debtor Superior. Page 3

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then the attorneys client(s) should be able to recover their reasonable fees;4 and (7) if an attorney filed one of the three PACA trust complaint complaints in the US

District Court for the Western District of Texas in late December of 2011which triggered the bankruptcy filing on January 3, 2012and if that attorneys client was entitled to recover attorneys fees, then that attorneys client(s) should be able to recover their reasonable fees. Based upon the foregoing, it is submitted that Rios fees and costs should be limited to $12,050.00.5

IV.

I.Kunik Company, Inc.s [DE 305 and DE 30] There is no objection to the timely request for $4,566.70 in DE 305. This appears to include a

request for fees for local counsel in the amount of $115.43 There is an objection to the untimely supplemental request for fees for local counsel in the amount of $1,802.50 in DE 312. The amount is said to be the total billed by local counsel, and so presumably includes the $115.43 for local counsels time that was sought in DE 305. The ground set forth in the supplemental request is an apology to the Court. That is not a ground to allow an untimely request. Moreover, local counsel does not submit any time records, and very possibly local counsel seeks compensation for time making an esoteric argument about why the Court may lack jurisdiction, which argument was rejected, and so should not be compensable.

For example, some attorneys assisted Special PACA Trust Counsel in drafting the Claims Procedure Order, and some attorneys assisted in the collection of the Debtors accounts receivables. Page 4

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RESPECTFULLY SUBMITTED,

By:

s/Robert E. Goldman ROBERT E. GOLDMAN, ESQ. Law Office of Robert E. Goldman Admitted Pro Hac Vice 1 East Broward Blvd., Ste. 700 Fort Lauderdale, FL 33301 Tel: (954) 745-7450 Fax: (954) 745-7460 robert@goldmanlaw.com

CERTIFICATE OF SERVICE I hereby certify that on October 12, 2012, I electronically filed the foregoing Omnibus Objections to Several Motions for Attorneys Fees with the Clerk of the Court using the CM/ ECF system which will send a notice of electronic filing to all parties of record.

By:

Robert E. Goldman Robert E. Goldman

Pre-petition fees and costs of $6,800.00 plus post-petition fees of $5,250.00. This amount would be increased by the amount, if any, that Muller demonstrate reasonable time spent in categories (6) and (7). Page 5