rdd Doc 459 Filed 04/27/17 Entered 04/27/17 14:30:38 Main Document Pg 1 of 14

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1 rdd Doc 459 Filed 04/27/17 Entered 04/27/17 14:30:38 Main Document Pg 1 of 14 Kevin J. Nash, Esq. Goldberg Weprin Finkel Goldstein LLP Counsel for the Debtor 1501 Broadway, 22 nd Floor New York, New York Telephone: Facsimile: knash@gwfglaw.com UNITED STATES BANKRUPTCY COURT Hearing Date and Time: SOUTHERN DISTRICT OF NEW YORK May 19, 2017 at 10:00 a.m x In re: Chapter 11 JOYCE LESLIE, INC. Case No (RDD) Debtor x FIRST AND FINAL APPLICATION OF GOLDBERG WEPRIN FINKEL GOLDSTEIN LLP FOR ALLOWANCE OF ATTORNEY FEES AND REIMBURSEMENT OF EXPENSES FOR SERVICES RENDERED AS COUNSEL TO THE DBETOR Goldberg Weprin Finkel Goldstein LLP (hereafter the Applicant ), counsel to the Debtor, Joyce Leslie, Inc. (the Debtor ), as and for its First and Final Application for Allowance of Attorney Fees for the period from the Chapter 11 filing on January 9, 2016 through the filing of the notice of entry of the Confirmation Order on March 2, 2017 seeking final compensation in the total sum of $389,217 (inclusive of the unapplied retainer of $47,000 and prior interim compensation of $188,164.20), together reimbursement of expenses in the amount of $4,094.83, respectfully states and alleges as follow: PRELIMINARY STATEMENT 1. Applicant has effectively handled this Chapter 11 case through a successful confirmation process following an expeditious liquidation of the Debtor s operating assets and leases that maximized a recovery for unsecured creditors. Working cooperatively with counsel 1

2 rdd Doc 459 Filed 04/27/17 Entered 04/27/17 14:30:38 Main Document Pg 2 of 14 for the Official Committee of Unsecured Creditors and the Debtor s CRO, Lee Diercks, Applicant conducted two separate full day and night auctions of the Debtor s assets, settled all of the landlord cure claims, presented and confirmed a plan of reorganization and disclosure statement that was almost unanimously accepted by a vote of more than 100 creditors, negotiated substantial reductions in various union claims, eliminated $15 million in tort claims pursuant to stipulation, and worked out a settlement to potentially eliminate any pension withdrawal liability claims by the PBGC. 2. The goal has always been to complete the liquidation of assets and resolution of claims efficiently so as to generate a dividend for unsecured creditors. Based upon current projections it appears that this goal will be realized. Moreover, Applicant enjoyed a good working relationship with counsel for the Creditors Committee which allowed for important efficiencies and helped control administrative expenses. 3. With the Debtor s Chapter 11 Liquidating Plan confirmed, and the end of the case drawing near, Applicant now seeks final allowance of compensation for all time charges from the Petition Date through the notice of entry of the Order confirming the Plan (1/9/16 3/2/17). 4. Pursuant to the Order on Debtor s Motion to Establish Procedures for Interim Compensation and Reimbursement of Expenses of Professionals (Dkt. No. 230) (the Interim Compensation Order ), Applicant previously submitted a Combined Monthly Fee and Expense Statement for the period from January 9, 2016 through June 30, 2016 seeking interim compensation of $250, This request was subsequently adjusted by $15,000 at the request of the U.S. Trustee to $235, to address certain lumping concerns. Pursuant to the Interim Compensation Order, Applicant received payment of 80%, or $188,164.20, which is being applied to the final award. 2

3 rdd Doc 459 Filed 04/27/17 Entered 04/27/17 14:30:38 Main Document Pg 3 of The final application covers the interim compensation period from January 9, 2016 to June 30, 2016, plus unpaid services from July 1, 2016 through March 2, 2017, for which no interim compensation was sought or paid. Thus, of the final total amount of $389, sought, Applicant has already received $188, in interim compensation, leaving the sum of $201, outstanding ($154, from the Debtor and $47,000 from the unapplied retainer). APPLICANT S BACKGROUND AND BILLING PRACTICES 6. Applicant is the successor by merger to Finkel Goldstein Rosenbloom & Nash, LLP which was engaged in the practice of bankruptcy and insolvency law for a period of more than eighty (80) years. Various members of Applicant s firm have represented the full gamut of debtors, creditors, committees and trustees in hundreds of bankruptcy proceedings before the New York Bankruptcy Courts. Various members of Applicant s firm have also lectured extensively to credit groups, bar associations and continuing education classes. By reason of this vast experience, Applicant is recognized and respected as being highly proficient in the field of insolvency law involving small to mid-size companies. 7. The many facets of this reorganization case have consumed a good deal of legal time and effort. For the sake of brevity, however, Applicant will not detail all of the specific tasks performed by each member or associate of the firm, but will instead highlight the major areas of concentration. 8. Applicant previously filed an interim statement of fees, including a copy of Applicant s actual time logs for the period from January 9, 2016 through June 30, (Dkt No. 417). Applicant s interim statement is re-submitted herewith as Exhibit A for the Court s ready reference. A complete time log for the entire period covered by the application (1/9/16 3

4 rdd Doc 459 Filed 04/27/17 Entered 04/27/17 14:30:38 Main Document Pg 4 of 14 3/2/17) is attached hereto as Exhibit B. Because Exhibit B is a full time log, it also includes the prior time entries from January 9, 2016 through June 30, These time logs provide a detailed record of the specific legal services rendered on a day-to-day basis. 9. In evaluating Applicant s services, this Court is respectfully requested to consider the following core criteria: (1) the complexity and necessity of the legal services rendered; (2) the time necessarily and actually expended by Applicant; (3) the efficiency of Applicant s services; and (4) the overall results achieved, culminating in a confirmed Chapter 11 plan. BACKGROUND 10. The Debtor operated a chain of women s retail clothing stores located throughout New York, New Jersey, Pennsylvania and Connecticut, for close to seventy years, selling a variety of junior women s apparel. For many decades, the Debtor operated profitably, with sales of more than $100 million per year. Unfortunately, the last several years saw a steady decline in sales volume that made bankruptcy inevitable. 11. Once it became clear that the decline in sales was irreversible, the Debtor retained Clear Think Group to streamline certain expenses. The Debtor met with various potential suitors over the ensuing year, but a ready and willing buyer never emerged. Accordingly, the decision was made to begin liquidating the stores started on November 14, 2015 when the process of liquidating five stores began pursuant to an Agency Agreement with SB Capital Group LLC ( SB Capital ) 1, leaving some 42 stores and leases to be sold during the Chapter 11 case. HIGHLIGHTS OF THE SERVICES PROVIDED A. Liquidation of Assets 12. Immediately after the Chapter 11 filing on January 9, 2016, Applicant began the process of liquidating the Debtor s inventory, fixtures and leases in an orderly manner. Although 1 The sales were actually not completed until January 31, 2016, after the Chapter 11 filing. 4

5 rdd Doc 459 Filed 04/27/17 Entered 04/27/17 14:30:38 Main Document Pg 5 of 14 Applicant moved for approval of a marketing program to solicit a going concern buyer, including the retention of Oberon Securities LLC ( Oberon ) to act as broker, Applicant simultaneously began comprehensive going out of business sale procedures, addressing a myriad of issues involving landlords. 13. Drawing on the experience with SB Capital in conducting the pre-petition sales, Applicant helped negotiate a new agency agreement with SB Capital to act as a stalking horse for the going out of business liquidation sales at the Debtor s remaining 42 stores. Applicant also negotiated an agreement with an entity known as Madrags to purchase at least 12 store leases, together with the associated fixtures. 14. In an effort to move forward expeditiously with the proposed sales, Applicant prepared a detailed motion setting forth the proposed terms of the various agreements, establishing bidding procedures, and authorizing going out of business sales at each store. The motion was approved after expedited notice by Order dated January 27, 2016 (Dkt. No. 87), leading to an orderly auction process conducted by Applicant on the Debtor s behalf. 15. At various points, Applicant worked virtually around the clock in an effort to procure a potential going concern buyer for the Company, while simultaneously proceeding with an auction process. In the end, efforts to obtain a going concern buyer were unsuccessful, and Applicant conducted the first set of auctions on February 2, 2016, at which time Gordon Brothers Retail Partners LLC ( Gordon Brothers ) emerged as the highest and best offeror to liquidate the Debtor s inventory under a revised agency agreement. The revised agency agreement provided for an enhanced recovery to the Debtor s estate of 68% of the cost value of remaining inventory. The Bankruptcy Court approved the Revised Agency Agreement on February 4, 2016, after a hearing on February 3, Gordon Brothers completed the GOB sales by mid to late February 5

6 rdd Doc 459 Filed 04/27/17 Entered 04/27/17 14:30:38 Main Document Pg 6 of 14 and remitted the net sum of $1.52mm to the Debtor s estate after all adjustments and reconciliations. 16. On February 9, 2016, the Bankruptcy Court entered an Order granting that portion of the Debtor s motion relating to the sale of the leases, and approving Madrags as a stalking horse bidder. Even before the Order was entered, Rainbow Northeast Leasing Inc. emerged as a better prospect, and ultimately made the high bid of $1.4 million for 19 leases at the second Auction held on February 16, Additionally, several other purchasers emerged for specific stores, with the purchaser oftentimes being the landlord, thereby eliminating potential rejection claims at a substantial savings to the Estate. In this connection, a Madrags affiliate, 618 Main Street Corp, purchased two leases (33 and 78) for $100,000, store number 30 was sold for $39,158.74, store number 8 was sold for $63,000, Store 41 sold for $165,000, store 45 sold for $41,000 and store 46 sold for $80,000. Applicant prepared and obtained approval of a series of Orders formally authorizing the assumption and assignment of these leases [Dkt. Nos. 158, 172, 182, 183, 190, 209 and 211]. 18. In connection with the sale of leases, numerous landlords filed objections regarding cure amounts and adequate protection information. Following the sale of the leases, Applicant negotiated and resolved a dozen or more cure claim disputes within the budget of approximately $90,000, through a series of stipulations that have been So Ordered by the Court. [Dkt Nos. 304, 208, 325, 346, 411 and 445]. 19. To minimize the administrative rent claims being incurred by the Debtor, Applicant prepared and filed a Motion for Order Pursuant to 11 U.S.C. 105(a), 365(a) and 554 Authorizing and Approving Procedures for Rejection of Executory Contracts and 6

7 rdd Doc 459 Filed 04/27/17 Entered 04/27/17 14:30:38 Main Document Pg 7 of 14 Unexpired Leases [Dkt. No. 46]. Pursuant to the Lease Rejection Procedures Order, Applicant prepared and filed seven omnibus rejection notices [Dkt. Nos. 46, 96, 170, 188, 191, 242 and 247] providing for the rejection of 22 leases and 3 executory contracts. 20. On March 25, 2016, Applicant also obtained an Order authorizing the Debtor to sell Company-owned vehicles by private sales, which generated additional net proceeds of $142,045 [Dkt. No. 246]. B. Objections to Claims 21. Applicant obtained a Bar Date of May 31, 2016 for the filing of claims. Because of the relatively large number of creditors, Applicant also coordinated the retention of Rust Omni as claims agent. 22. Over 500 proofs of claims were filed against the Debtor. Applicant thoroughly reviewed the claims with Clear Thinking Group, and the assistance of the Official Committee of Unsecured Creditors, and identified a number of major claim disputes that could potentially impact the projected distributions to unsecured creditors. 23. A substantial period of time was devoted to reviewing claims, with special emphasis on classifying priority claims consistent with the Bankruptcy Code. Applicant not only sought to fix the proper amount of each claim, but also to insure that the many claims filed by customers and employees are given the proper statutory treatment even if the underlying claims were misclassified. 1. Pension Claims 24. Under Applicant s direction, the Debtor, as sponsor of the Joyce Leslie, Inc. Defined Benefit Plan (the Pension Plan ), initiated a standard termination of the Pension Plan 7

8 rdd Doc 459 Filed 04/27/17 Entered 04/27/17 14:30:38 Main Document Pg 8 of 14 following the closure of the stores, including compliance with a Pension Benefit Guaranty Corporation ( PBGC ) audit under 29 U.S.C. 1303(a). 25. The PBGC filed three contingent claims (the PBGC Claims ) against the Debtor in the total amount of $3,189, 254. The PBGC Claims are based on the contingency that the Pension Plan will terminate under 29 U.S.C. 1341(c) or Over several months, Applicant negotiated the terms of an agreement with the PBGC for the conduct of an audit to assist in the Standard Termination process, and has maintained regular contact with the PBGC s counsel to insure that the process is moving forward in an orderly fashion. Applicant has been advised that initial results it appears there will likely be no significant liability to the PBGC when the pension plan termination is completed. 27. In addition, the National Retirement Fund ( NRF ) (the Union plan) filed a claim in the amount of $3,167,721, asserting withdrawal liability under ERISA. NRF is the union pension plan for Local 340A NY-NJ Joint Board covering many of the Debtor s warehouse and store employees. NRF filed a claim for withdrawal liability after the Debtor closed its stores and terminated the majority of its employees. 28. Applicant informally raised a number of objections to the NRF claims, including (i) that since Joyce Leslie was insolvent when it closed, its withdrawal liability is subject to the 50% reduction rule under ERISA; and (ii) NRF s actuarial assumptions imbedded in the withdrawal liability claim are unsupported and subject to challenge. Based on Applicant s efforts, a settlement was negotiated in principle reducing the claim to $2 million without the necessity of litigation. 8

9 rdd Doc 459 Filed 04/27/17 Entered 04/27/17 14:30:38 Main Document Pg 9 of Negligence Claims 29. Various personal injury claimants asserted total unliquidated claims in the sum of $15,168,867. Applicant verified that all of these personal injury claims were covered by existing insurance, and successfully negotiated stipulations from each of the personal injury claimants, limiting their claims to available insurance coverage (Dkt. Nos. 285, 307, 326, 328, 329, 330, 331 and 337). In doing so, Applicant eliminated the prospect of a multi-million dollar contingent liability from eroding dividends to unsecured creditors. 3. Lease Rejection Claims 30. Various landlords for the unsold store locations filed lease rejection claims, including the rejection claim filed by Midway Industrial Terminal LLC ( Midway ) in the total amount of $3,727, Applicant prepared a detailed objection to Midway s claim, seeking to reduce it to no more than approximately $548,000 on the grounds that Midway not only miscalculated the monetary cap imposed on rejection claims by Section 502(b)(6) of the Bankruptcy Code, but also failed to properly apply the cap to the various allowed charges. Early in the Chapter 11 case, Applicant filed opposition to ensure that Midway s letter of credit security deposit was properly applied in conformity with the Bankruptcy Code. 31. After Midway filed responsive papers acknowledging that it had mitigated its damages by entering into a new lease with a new tenant, Applicant filed a reply explaining that the claim should actually be reduced further. Negotiations with Midway are ongoing in an effort to settle the claim consensually. 4. Employee Vacation and Wage Claims 32. Applicant prepared three omnibus claim objections (52 claims each) seeking to reduce 156 disputed wage and vacation pay claims filed in the aggregate sum of $369, to 9

10 rdd Doc 459 Filed 04/27/17 Entered 04/27/17 14:30:38 Main Document Pg 10 of 14 the aggregate sum of $215,648.25, and to insure that all wage claims are given the proper priority afforded under Section 507 of the Bankruptcy Code. 33. Although Applicant moved as part of its First Day Orders to pay accrued prepetition wages, which motion was granted by Order dated January 12, 2016 (Dkt. No. 27), a number of employees filed claims for the pre-petition wages which were then actually paid by the Debtor. A number of employees also filed claims for accrued vacation, but in incorrect amounts, and many failed to assert a proper priority status for their claim. The first three omnibus objections seek to reconcile the employee claims and reclassify them as priority claims where necessary. 5. Severance Claims 34. The Fourth Omnibus Objection concerns severance obligations. The Union filed an omnibus claim on behalf of numerous employees totaling $261, This severance claim raises interesting legal issues since severance is generally accorded administrative priority in bankruptcy. However, in the Debtor s case, the payment of severance only first arose within one year of the Chapter 11 filing following an amendment to the Collective Bargaining Agreement ( CBA ) in February, Prior to that time, the Debtor s CBA did not provide for severance payments to employees at all. Moreover, the CBA amendment treats severance in the same manner as union vacation pay, meaning that severance accrued pre-petition and is payable on a pro rata basis based on longevity. Accordingly, there were grounds for adjustment, and Applicant moved to reduce the total severance claim to approximately $68, Other Claims Objections 35. The Sixth and Seventh Omnibus objections deal with duplicate claims and those claims which do not match the Debtor s records. The Eighth Omnibus objection seeks to grant 10

11 rdd Doc 459 Filed 04/27/17 Entered 04/27/17 14:30:38 Main Document Pg 11 of 14 priority status to customers who filed claims for gift cards and layaway deposits, but failed to assert the proper priority for their claims under Section 507(a)(7). Finally, the Ninth Omnibus Objection seeks to reclassify as general unsecured certain claims of creditors who asserted a Section 503(b)(9) administrative priority for reclamation claims, but whose claims are not within the narrow limits of this section. C. The Development of a Plan and Disclosure Statement that Likely Pays Unsecured Creditors a Dividend 36. With the assets liquidated and the process of resolving major claims under way, Applicant worked diligently in preparing a detailed Chapter 11 Plan and accompanying Disclosure Statement. The terms of the Plan were negotiated with the Committee, and special care was taken to review projections, verify claims information and control expenses to bolster the chances of making a distribution to general creditors. Several drafts of the plan documents were prepared and updated to include revised projections and ongoing evaluation of claims. 37. Applicant finalized all plan documents on October 27, 2016 and filed same with the Bankruptcy Court, together with a motion to schedule the hearing to approve the Disclosure Statement and setting balloting and solicitation procedures. 38. The Disclosure Statement was approved following a hearing on December 29, Applicant attended the hearing and prepared all of the necessary orders and solicitation materials. 39. Applicant coordinated the dissemination of the Plan and Disclosure Statement with the claims agent, and prepared all of the necessary declarations and certification in advance of the confirmation hearing. Applicant attended the confirmation hearing and made the requisite proffer on behalf of the Debtor in support of the Plan. The Plan was nearly unanimously accepted by creditors (106 out of 109 voting), and approved by the Court at the hearing held on 11

12 rdd Doc 459 Filed 04/27/17 Entered 04/27/17 14:30:38 Main Document Pg 12 of 14 February 10, Applicant prepared and obtained entry of the Confirmation Order in consultation with the Creditor s Committee counsel, and arranged for the service of a notice of entry on all creditors and parties in interest. D. Other Administrative Matters 40. In addition to the motion authorizing the Debtor to pay wages, noted above, Applicant also prepared motions for several other First Day Orders to ease administration of the Chapter 11 case and enable the Debtor to conduct normal business operations during the close-out period. The Orders entered on January 12, 2017 included: Order Authorizing Payment of Prepetition Employee Wages, Compensation and Employee Benefits. Order Authorizing the Payment of Prepetition Sales Taxes. Order Authorizing the Continuation of Customer Practices. Order Authorizing Continued Use of Existing Cash Management System and Bank Accounts. Order Prohibiting Utility Providers from Altering, Refusing or Discontinuing Utility Services. 41. Additionally, Applicant prepared retention papers for itself, Clear Thinking Group as consultants, Rust Omni as claims agent, PKF O Connor Davies., LLP as accountants, and Oberon as broker. LEGAL STANDARDS FOR THE AWARD OF COMPENSATION IN BANKRUPTCY 42. Applicant is cognizant of the analysis involved in awarding bankruptcy compensation under the so-called Johnson factors (Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974)), developed for determining reasonable compensation under a lodestar, measured by the hours reasonably expended times a reasonable hourly rate, including: 12

13 rdd Doc 459 Filed 04/27/17 Entered 04/27/17 14:30:38 Main Document Pg 13 of 14 a) The time and labor required and spent; b) The novelty and difficulty of the questions; c) The skill requisite to perform the legal services properly; d) The preclusion of other employment by the attorney due to acceptance of the case; e) The customary fees; f) Whether the fee is fixed or contingent; g) Time limitations imposed by the client or other circumstances; h) The amount involved and the results obtained; i) The experience, reputation and ability of the attorneys; j) The undesirability of the case; k) The nature and length of the professional relationship with the client; and l) Awards in similar cases. 43. Applicant submits that it meets all of these criteria, as Applicant successfully confirmed the Debtor s case in an efficient and cost effective manner. 44. Based on actual timelogs, Applicant has provided total services of $389, during the entire period from January 9, 2016 through March 2, Of this sum, Applicant has already received $188, in interim compensation, leaving the sum of $201, to be paid ($154, from the Debtor and $47,000 consisting of the unapplied retainer). Applicant is also seeking reimbursement of expenses in the amount of $4,093.83, as itemized in the time logs attached hereto as Exhibit B. 45. The services rendered during the case involved almost 930 hours of recorded time over a period of 14 months time, for a blended rate of approximately $419 per hour. 46. Applicant submits that our billing rate is consistent, if not better than, rates for comparable firms of Applicant s size and experience. 47. For all of these reasons, we respectfully submit that our services are properly compensable under the Johnson factors and we are deserving of the requested final compensation. 13

14 rdd Doc 459 Filed 04/27/17 Entered 04/27/17 14:30:38 Main Document Pg 14 of 14 WHEREFORE, Applicant prays for an order awarding final compensation and reimbursement of expenses consistent with the foregoing. Dated: New York, New York April 26, 2017 GOLDBERG WEPRIN FINKEL GOLDSTEIN LLP Attorneys for the Debtor 1501 Broadway, 22 nd Floor New York, NY (212) By: /s/ Kevin J. Nash. Kevin J. Nash, Esq. A Member of the Firm X:\GWFG\New Data\Yen\Word\Joyce Leslie\Fee Application v4.docx 14

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