IN THE UNITED STATES BANKRUPTCY COURT

Transcription

1 Malcolm M. Mitchell, Jr., (VSB No ) Byron L. Pickard, (VSB No ) Vorys, Sater, Seymour and Pease LLP 277 South Washington Street, Suite 310 Alexandria, Virginia (703) Local Co-Counsel for the Official Committee Of Unsecured Creditors IN THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION X In re: US AIRWAYS GROUP, INC., et al. Debtors X Chapter 11 Case No (SSM) Jointly Administered Hon. Stephen S. Mitchell SECOND AND FINAL FEE APPLICATION OF VORYS, SATER, SEYMOUR AND PEASE LLP, LOCAL CO-COUNSEL FOR THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF US AIRWAYS GROUP, INC., ET AL., FOR INTERIM COMPENSATION AND FOR REIMBURSEMENT OF EXPENSES FOR SERVICES RENDERED DURING THE PERIOD FROM AUGUST 22, 2002 THROUGH MARCH 31, 2003 Name of Applicant: Authorized to Provide Professional Services to Date of Retention: Vorys, Sater, Seymour and Pease LLP OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF US AIRWAYS GROUP, INC., ET AL. September 16, 2002, nunc pro tunc to August 22, 2002 Compensation Period: August 22, 2002 through March 31, 2003 Compensation Sought: $384, Expenses Sought: $25, This application is: Monthly Interim X Final Requested Approved Date Submitted Period Covered Fees Expenses Fees Expenses 5/30/03 8/22/02 to 3/31/03 $384, $25,005.36

2 Malcolm M. Mitchell, Jr., (VSB No ) Byron L. Pickard, (VSB No ) Vorys, Sater, Seymour and Pease LLP 277 South Washington Street, Suite 310 Alexandria, Virginia (703) Local Co-Counsel for the Official Committee Of Unsecured Creditors IN THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION X In re: US AIRWAYS GROUP, INC., et al. Debtors X Chapter 11 Case No (SSM) Jointly Administered Hon. Stephen S. Mitchell SECOND AND FINAL FEE APPLICATION OF VORYS, SATER, SEYMOUR AND PEASE LLP, LOCAL CO-COUNSEL FOR THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF US AIRWAYS GROUP, INC., ET AL., FOR INTERIM COMPENSATION AND FOR REIMBURSEMENT OF EXPENSES FOR SERVICES RENDERED DURING THE PERIOD FROM AUGUST 22, 2002 THROUGH MARCH 31, 2003 Vorys, Sater, Seymour and Pease LLP ( Vorys or Applicant ), local co-counsel to the Official Committee of Unsecured Creditors (the Committee ) of US Airways Group, Inc., US Airways, Inc., Allegheny Airlines, Inc., PSA Airlines, Inc., Piedmont Airlines, Inc., MidAtlantic Airways, Inc., US Airways Leasing and Sales, Inc., and Material Services Company, Inc., (the Debtors ), hereby submits its second and final fee application pursuant to 11 U.S.C. 330 and 331 for an allowance of compensation for services rendered and for reimbursement of expenses incurred in connection therewith and respectively represents as follows: 2

3 I. INTRODUCTION 1. By this application, Vorys seeks (i) an allowance of compensation for the professional services rendered by Vorys as local co-counsel for the Committee for the period from August 22, 2002 through March 31, 2003 (the Compensation Period ), in the aggregate amount of $384,915.05, representing 1,343.9 hours of professional services, and a courtesy discount of $9,346.20, which represents a discount of fees for time spent conducting extensive conflicts searches, which searches are required by Rule 2014 of the Federal Rules of Bankruptcy Procedure. 2. Venue of this proceeding and this application is proper in this district pursuant to 28 U.S.C and The statutory predicates for the relief sought herein are 11 U.S.C. 330 and 331 and Federal Rules of Bankruptcy Procedure 2002(a) and II. BACKGROUND 3. On August 11, 2002 (the Petition Date ), the Debtors filed voluntary petitions for reorganization under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of Virginia (Alexandria Division). On March 18, 2003, the Court entered an Order confirming the First Amended Joint Plan of Reorganization of US Airways Group, Inc. et al. (the Plan ). The Plan became effective on March 31, The Debtors represent, among other things, that as of the Petition Date, they were the largest airline east of the Mississippi River and that they operated the seventh largest airline in the United States and the fourteenth largest in the world. The Debtors also represent that they had approximately 40,000 part-time and full-time employees worldwide. The Debtors have continued in the management and operation of their businesses and property pursuant to 1107 and 1108 of the Bankruptcy Code. 3

4 5. On August 16, 2002, the United States Trustee appointed an Official Committee of Unsecured Creditors consisting of: (i) Airbus North American Holdings, Inc.; (ii) Air Line Pilots Association International; (iii) Charles E. Smith Commercial Realty; (iv) Electronic Data Systems Corporation; (v) Wachovia Bank National Association f/k/a First Union National Bank; (vi) Honeywell International; (vii) International Association of Machinists and Aerospace Workers; (viii) J.P. Morgan Trust Company, N.A.; (ix) LSG Sky Chefs, Inc.; (x) Pension Benefit Guaranty Corporation; (xi) Rolls-Royce North America, Inc. and affiliates; (xii) State Street Bank and Trust Company; and (xiii) Wilmington Trust Company. 6. On or about August 22, 2002, the Committee duly selected Vorys as its local cocounsel to represent the Committee in all matters during the pendency of the Debtor s Chapter 11 cases. 7. On September 11, 2002, the Committee filed its Application to Employ Vorys as Local Co-Counsel to the Official Committee of Unsecured Creditors. By Order dated September 16, 2002, this Court approved Vorys retention as counsel to the Committee nunc pro tunc to August 22, III. FEE PROCEDURES ORDER 8. This application is submitted pursuant to the terms of the Order under 105(a) and 331 Establishing Procedures for Interim Compensation and Reimbursement of Expenses for Professionals dated September 6, 2002 (the Fee Procedures Order ). 9. Pursuant to the Fee Procedures Order, each professional is compensated and reimbursed for expenses on a monthly basis. Each professional seeking interim compensation is required to prepare a monthly statement of all fees and costs incurred no earlier than the last day of each month following the month for which compensation is sought (the Monthly Fee Statement ). 4

5 The Monthly Fee Statement is not to be filed with the Court, but rather is to be served on parties as defined in the Fee Procedures Order ( Notice Party ). Each Notice Party shall have twenty (20) days after service to object thereto. If none of the Notice Parties objects as provided in the Fee Procedures Order, then the Debtors shall promptly pay each professional eighty-five percent (85%) of the requested fees and one hundred percent (100%) of the expenses requested in that particular Monthly Fee Statement. The Debtors payments are subject to the Court s subsequent approval as part of the interim and final fee applications. 10. Pursuant to the Fee Procedures Order, beginning with the period ending on November 30, 2002, each professional shall file and serve, on or before the 45 th day following the last day of the period for which compensation is sought, an application for interim Court approval and allowance, pursuant to Section 331 of the Bankruptcy Code, of the compensation and reimbursement of expenses requested for the prior four (4) months. If allowed by the Court, a professional shall receive payment of all fees (including the 15% holdback) and costs not previously paid pursuant to the Monthly Fee Statement. 11. Pursuant to the Confirmation Order, all final requests for payment of Professional Claims and Key Ordinary Course Professional Claims must be filed no later than sixty (60) days after the Effective Date. 12. This is the second and final fee application Vorys has filed with the Court for allowance of compensation and for reimbursement of expenses for services rendered to the Committee. All fees and expenses incurred during the Compensation Period will be allocated to the Debtors. 13. Vorys has previously filed with this Court pursuant to the Fee Procedures Order one interim application encompassing the period from August 16, 2002 through November 30, 2002 (the 5

6 First Interim Period ). During the First Interim Period, Applicant was paid compensation of $167, (consisting of 85% of the actual fees of $197, charged by Vorys) (The First Period Compensation ) and reimbursement of expenses in the amount of $13, (100% of the actual disbursements charged). The Court did not schedule a hearing on Applicant s fee application for the First Interim Period. As a result, the amount of the remaining 15% holdback for compensation incurred during the First Interim Period, but not yet paid, in the amount of 29, (the First Period Holdback ), is still due and owing to Vorys. 14. Pursuant to the Fee Procedures Order and the Order Confirming the First Amended Joint Plan of Reorganization of US Airways Group, Inc. and its Affiliated Debtors and Debtors-in- Possession (the Confirmation Order ), for the period from December 1, 2002 through March 31, 2003 (the Second Interim Period ), Applicant been paid interim compensation in the amount of $161, (consisting of approximately 85% of the actual fees charged of $190, by Vorys) (the Second Period Compensation ) and reimbursement of expenses in the amount of $11, (100% of the actual disbursements charged). 1 The amount of the remaining holdback for compensation incurred during the Second Interim Period, but not yet paid is $28, (the Second Period Holdback ). Combined with the First Period Holdback, the total holdback due and owing to Vorys is $57, (the Holdback Amount ). 1 Paragraph 25 of the Confirmation Order provided for payment upon the Effective Date of the Plan of 85% of a professional s estimated fees and 100% of a professional s estimated expenses for March Pursuant to paragraph 25 of the Confirmation Order, Vorys estimated that its fees and expenses for the month of March 2003 would total $37, and $2, respectively. Based on these estimates, the Debtors paid Vorys 85% of the total estimate ($34,000.00) and subsequently paid Vorys 100% of the actual expenses incurred in March ($2,474.30). Vorys actual fees and expenses were 40, and 2,474.30, respectively. Accordingly, Vorys is owed $6, as a holdback amount for the month of March. 6

7 15. Except as set forth herein, Vorys has received no payment and no promises of payment from any source for services rendered in connection with these cases. There is no agreement or understanding between Vorys and any other person (other than members of Vorys) for the sharing of compensation to be received for the services rendered in these cases. 16. As stated in the Affidavit of Malcolm M. Mitchell, Jr., Esq. annexed hereto as Exhibit A, all of the services for which compensation is sought herein were rendered for and on behalf of the Committee solely in connection with these cases. IV. SUMMARY OF SERVICES RENDERED 17. Since being retained by the Committee, Vorys has rendered professional services to the Committee as requested and as necessary and appropriate in furtherance of the interests of the unsecured creditors of the Debtors estates. The variety and complexity of these cases and the need to act or respond on an expedited basis in furtherance of the Committee s needs have required the expenditure of substantial time by personnel from several legal disciplines, on an as-needed basis, including in certain instances, working into the evening and on weekends. 18. Vorys maintains written records of the time expended by attorneys and paraprofessionals in the rendition of their professional services to the Committee. Such time records were made contemporaneously with the rendition of services by the person rendering such services and in the ordinary course of Vorys practice, and are presented in compliance with Rule of the Court s local rules and the Office of the United States Trustee s guidelines. A compilation showing the name of the attorney, the date on which the services were performed, a description of the services rendered, and the amount of time spent in performing the services during the Compensation Period is annexed hereto as Exhibit B. In addition, Exhibit B hereto contains a summary of the 7

8 hours expended by each of the attorneys during the Second Compensation Period, their normal hourly rates, and the value of their services. 19. Vorys also maintains records of all actual and necessary expenses incurred in connection with the rendition of its professional services, all of which are also available for inspection. A schedule of the categories of expenses and amounts for which reimbursement is requested is annexed hereto as Exhibit B. 20. Vorys respectfully submits that the professional services that it rendered on behalf of the Committee were necessary and have directly benefited the creditor constituents represented by the Committee and have contributed to the effective administration of these cases. 21. The following summary of the services rendered during the Compensation Period is not intended to be a detailed description of the work performed, as those day-to-day services and the time expended in performing such services are fully set forth in Exhibit B. Rather, it is merely an attempt to highlight certain of these areas in which services were rendered to the Committee. 22. Vorys has participated in numerous meetings and weekly teleconferences with the Committee to determine its positions and strategies with regard to the bankruptcy proceedings and has participated in several meetings with the Debtor, including negotiations with the Retirement System of Alabama to become the DIP lender. 23. Vorys has filed all motions and pleadings on behalf of the Committee, which includes service upon hundreds of individuals and entities. 24. Vorys has also reviewed voluminous pleadings filed by the Debtor and creditors and discussed those pleadings with co-counsel so that the Committee could determine its positions with regard to those matters. 8

9 25. Vorys fielded hundreds of phone calls from individual creditors (stockholders and retirees) who were inquiring about their legal rights with respect to their unsecured claims. 26. Vorys has prepared for and attended every omnibus hearing, emergency hearing, deposition and other scheduled hearings on behalf of the Committee. 27. Vorys has conducted extensive research and provided reports to the Committee on issues including Pension Benefit Guaranty Corporation s role in the bankruptcy proceeding, class certifications in bankruptcy matters, and insider payments. V. FACTORS TO BE CONSIDERED IN AWARDNG ATTORNEYS FEES 28. The factors to be considered in awarding attorneys fees have been enumerated in In re First Colonial Corporation of America, 544 F.2d 1291, (5 th Cir. 1977), reh g denied, 547 F.2d 573, cert. denied, 431 U.S. 904, which standards have been adopted by most courts. Vorys respectfully submits that a consideration of these factors should result in this Court s allowance of the full compensation sought. (A) The Time and Labor Required. The professional services rendered by Vorys on behalf of the Committee have required the expenditure of substantial time and effort, as well as a high degree of professional competence and expertise, in order to deal with the many complex issues encountered by the Committee with skill and dispatch. Occasionally, Vorys has been required to perform these services under significant time constraints requiring working late into the evening and on weekends. The services rendered by Vorys were performed efficiently, effectively and economically. (B) The Novelty and Difficulty of Questions. Novel and complex issues have arisen in the course of these Chapter 11 cases, and it can be anticipated that other such issues will be encountered. In this case, as in many others in which the firm is involved, Vorys effective 9

10 advocacy and creative approach have helped clarify and resolve such issues and will continue to prove beneficial. (C) The Skill Requisite to Perform the Legal Services Properly. Vorys believes that its recognized expertise in the area of corporate reorganization, its ability to draw from highly experienced professionals in other areas of Vorys practice, and its creative approach to the resolution of issues, are and will continue to contribute to the maximization of the distributions to the unsecured creditors. (D) The Customary Fee. The fee sought herein is based upon Vorys normal hourly rates for services of this kind. Vorys respectfully submits that the fee sought herein is not unusual given the magnitude and complexity of these cases and the time expended in attending to the representation of the Committee, and is commensurate with fees charged by other attorneys of comparable experience. (E) Whether the Fee is Fixed or Contingent. Pursuant to Sections 330 and 331 of the Bankruptcy Code, all fees sought by professionals employed under Section 327 of the Code are contingent pending final approval by this Court, and are subject to adjustment dependent upon the services rendered and the results obtained. (F) Time Limitations Imposed by Client or Other Circumstances. As already indicated, Vorys has been required to attend to the various issues arising in these cases. Occasionally, Vorys has had to perform those services under significant time constraints requiring attorneys assigned to these cases to work evenings and on weekends. (G) The Amount Involved and Results Obtained. Through the efforts of Vorys, the Committee has been an active participant in these Chapter 11 cases, and its assistance, as well 10

11 as constructive criticism, has contributed to the efficient administration of these cases. Vorys experience enables it to perform the services described herein competently and expeditiously. (H) Nature and Length of Professional Relationship. As described above, Vorys was retained nunc pro tunc to August 22, 2002, pursuant to an Order of this Court dated September 16, Vorys has been rendering services continuously to the Committee as necessary and appropriate. VI. ALLOWANCE OF COMPENSATION 29. The professional services rendered by Vorys required a high degree of professional competence and expertise so that the numerous issues requiring evaluation and determination by the Committee could be addressed with skill and dispatch and have, therefore, required the expenditure of substantial time and effort. It is respectfully submitted that the services rendered to the Committee were performed efficiently, effectively and economically, and the results obtained to date have benefited not only the members of the Committee, but also the unsecured creditor body as a whole and the Debtors estates. 30. With respect to the level of compensation, Section 330 of the Bankruptcy Code provides, in pertinent part, that the Court may award to a professional person (including attorneys for a creditors committee): Reasonable compensation for actual necessary services rendered by such professional person based on the time, the nature, the extent, and the value of such services, and the cost of comparable services other than in a case under this title 11 U.S.C The clear congressional intent and policy expressed in this statute is to provide for adequate compensation in order to continue to attract qualified and competent bankruptcy practitioners to bankruptcy cases. 11

12 31. The time spent by Vorys attorneys during the Compensation Period was 1,343.9 hours, and the time spent by Vorys paraprofessionals was hours. Such services have a fair market value of $384, The work involved, and thus the time expended, was assigned in light of the experience and expertise required for a particular task. 32. As shown by this application and supporting documents, Vorys spent its time economically and without unnecessary duplication of time. Attached hereto as Exhibit B are summaries of the hours expended by the attorneys during the Compensation Period, their normal hourly rates, and the value of their services. 33. In addition, Vorys incurred actual expenses in connection with the rendition of the professional services to the Committee in the sum of $25, for which Vorys respectfully requests reimbursement in full. 34. The disbursements and expenses have been incurred in accordance with Vorys normal practice of charging clients for expenses clearly related to and required by particular matters. Such expenses were often incurred to enable Vorys to devote time beyond normal office hours to matters, which imposed extraordinary time demands. Vorys has endeavored to minimize these expenses to the fullest extent possible. 35. Vorys billing rates do not include extra charges for photocopying, telephone and telecopier toll charges, computerized research, travel expenses, working meals, secretarial overtime, postage and certain other office services, unless incurred specifically for this client. Vorys believes that it is fairest to charge each client only for the services actually used in performing services for it. Vorys has endeavored to minimize these expenses to the fullest extent possible. 36. Vorys charges the following: $.15 per page for in-house photocopying services; and the actual cost from the vendor with respect to computerized research services. Vorys charges $

13 per page plus long distance tolls for outgoing facsimiles and does not charge for incoming facsimile transmissions. 37. No agreement or understanding exists between Vorys and any other person for the sharing of any compensation to be received for professional services rendered or to be rendered in connection with these cases. 38. No prior application has been made in this or in any other Court for the relief requested herein for the Compensation Period. 39. Vorys has served a complete copy of this application on the Reorganized Debtors, the United States Trustee, counsel for the Post-Confirmation Committee and counsel for the Plan Sponsor. Due to the length of the application and accompanying exhibits, Vorys has served only notice of the hearing to approve the application on the parties required by the Procedures Order. Copies of the application may be obtained, at the requesting parties expense, upon written request, from Vorys, Sater, Seymour and Pease, LLP, 277 South Washington Street, Suite 310, Alexandria, Virginia Further, the application and all pleadings and orders of the Court are publicly available, for a fee, at the Court's website: Vorys submits that no other or further notice need be given. WHEREFORE, Vorys respectfully requests that this Court enter an Order, a copy of which is annexed hereto as Exhibit C : (a) approving the allowance of compensation for professional services rendered to the Committee during the period from August 22, 2002 through March 31, 2003 in the amount of $384,915.05; 13

14 (b) approving the reimbursement of Vorys expenses incurred in connection with the rendering of such services during the period from August 22, 2002 through and including March 31, 2003 in the amount of $25,005.36; (c) directing the Debtors to pay the total allowed fees and expenses to the extent not previously paid pursuant to the Fee Procedures Order; and (d) granting such other and further relief as this Court may deem just and proper. VORYS, SATER, SEYMOUR AND PEASE LLP Dated: May 30, 2003 /s/ Malcolm M. Mitchell, Jr. Malcolm M. Mitchell, Jr., VSB No Vorys, Sater, Seymour and Pease LLP 277 South Washington Street, Suite 310 Alexandria, Virginia (703) Local Co-counsel to Official Committee of Unsecured Creditors 14

15 CERTIFICATE OF SERVICE I, Malcolm M. Mitchell, Jr., do hereby certify that, on May 30, 2003, I caused a copy of the Final Fee Application of Vorys, Sater, Seymour and Pease, LLP, Local Co-Counsel for the Official Committee of Unsecured Creditors of US Airways Group, Inc., et al., for Interim Compensation and for Reimbursement of Expenses for Services Rendered During the Period from August 22, 2002 through March 31, 2003, on the following parties, via overnight delivery: Elizabeth K. Lanier, Esquire US Airways Group, Inc Crystal Drive Arlington, Virginia Debtors Lawrence E. Rifken, Esquire McGuireWoods LLP 1750 Tysons Boulevard Suite 1800 McLean, Virginia Co-counsel to the Debtors John Wm. Butler, Jr., Esquire Skadden, Arps, Slate, Meagher & Flom 333 West Wacker Drive, Suite 2100 Chicago, Illinois Counsel to the Debtors Dennis J. Early Office of the U.S. Trustee 115 South Union Street Plaza Level, Suite 210 Alexandria, Virginia Alexandria Assistant U.S. Trustee Lorraine S. McGowen Orrick, Herrington & Sutcliffe LLP 666 Fifth Avenue New York, New York Counsel for The Retirement Systems of Alabama /s/ Malcolm M. Mitchell, Jr. Malcolm M. Mitchell, Jr. 15