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Full title: Application/Motion to Employ/Retain Fox Rothschild LLP as Attorneys for Chapter 7 Trustee Filed by Alfred T. Giuliano. Hearing scheduled for 5/28/2021 at 02:00 PM at US Bankruptcy Court, 824 Market St., 5th Fl., Courtroom #6, Wilmington, Delaware. Objections due by 5/10/2021. (Attachments: # 1 Exhibit A - Affidavit of Michael G. Menkowitz # 2 Notice # 3 Proposed Form of Order) (Niederman, Seth) (Entered: 04/22/2021)
Document posted on Apr 21, 2021 in the bankruptcy, 7 pages and 0 tables.
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L.R. 2014-1, authorizing the employment and retention of the law firm Fox Rothschild LLP (“Fox Rothschild”) as his attorneys in this case, nunc pro tunc to March 23, 2021 (the “Motion”). C. Compensation and Fee Application 14. Subject to Court approval in accordance with Section 330 of the Bankruptcy Code, compensation will be payable to Fox Rothschild at its normal and customary rates, plus reimbursement of actual, necessary expenses and other charges incurred.The expenses charged to clients typically include, among other things, telephone and telecopier toll and other charges, mail and express mail charges, special or hand delivery charges, document retrieval, photocopying charges, charges for mailing supplies (including, without limitation, envelopes and labels) provided by Fox Rothschild to outside copying services for use in mass mailings, travel expenses, expenses for “working meals,” computerized research, and transcription costs.To check and clear potential conflicts of interest in this case, Fox Rothschild researched its client database to determine whether it had any relationships with the following entities, limited to potential conflicts in its engagements as attorneys to the Trustee (collectively, the “Interested Parties”): a. Court enter an Order (a) authorizing the Trustee to retain and employ Fox Rothschild as his attorneys in these proceedings pursuant to 11 U.S.C. §§ 327 and 328, Fed.
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Document ContentsIN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: Chapter 7 MISHTI HOLDINGS LLC, et al., Case No. 19-11813 (CSS) Debtors.1 Jointly Administered Hearing: May 28, 2021 at 2:00 p.m. ET Objections Due: May 10, 2021 at 4:00 p.m. ET MOTION FOR AN ORDER AUTHORIZING THE RETENTION AND EMPLOYMENT OF FOX ROTHSCHILD LLP AS ATTORNEYS FOR ALFRED T. GIULIANO, CHAPTER 7 TRUSTEE, PURSUANT TO 11 U.S.C. §§ 327(a) AND 328(a), FED. R. BANKR. P. 2014 AND DEL. BANKR. L.R. 2014-1, NUNC PRO TUNC TO MARCH 23, 2021 Alfred T. Giuliano (the “Trustee”), the Chapter 7 trustee for the jointly administered estates of Mishti Holdings LLC, et al. (the “Debtors”), respectfully requests the entry of an order, pursuant to 11 U.S.C. §§ 327(a) and 328(a), Fed. R. Bankr. P. 2014, and Del. Bankr. L.R. 2014-1, authorizing the employment and retention of the law firm Fox Rothschild LLP (“Fox Rothschild”) as his attorneys in this case, nunc pro tunc to March 23, 2021 (the “Motion”). In support of this Motion, the Trustee submits the Affidavit of Michael G. Menkowitz, Esquire (the “Menkowitz Affidavit”), which is attached hereto as Exhibit A, and incorporated by reference herein, and respectfully represents as follows: JURISDICTION 1. The Court has jurisdiction over this Motion pursuant to 28 U.S.C. §§ 157 and 1334. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A). 1 The Debtors in these cases, along with the last four digits of each Debtors’ federal EIN, are as follows: Mishti Holdings LLC (1193); Lolli and Pops, Inc. (1938); and Meetha Ventures LLC (3065). The Debtors’ mailing address is c/o Theodora Oringher, 535 Anton Blvd., 9th Floor, Costa Mesa, CA 92626.
12. Venue of this proceeding and this Motion is proper in this district pursuant to 28 U.S.C. §§ 1408 and 1409. 3. The statutory predicates for the relief sought herein are Sections 327(a) and 328(a) of Title 11 of the United States Code (the “Bankruptcy Code”), Rule 2014 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), and Rule 2014-1 of the Local Rules for the United States Bankruptcy Court for the District of Delaware (the “Local Rules”). BACKGROUND 4. On August 12, 2019 (the “Petition Date”), the Debtors each filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code against the Debtor. 5. The Debtors were owner-operators of well-known candy stores throughout the United States. 6. Following a sale of substantially all of the Debtors’ assets, on February 24, 2021, the Court entered an Order converting this case to a case under Chapter 7 of the Bankruptcy Code [Docket No. 753]. 7. On February 25, 2021, the Office of the United States Trustee appointed the Trustee as Chapter 7 trustee, which appointment remains in effect [Docket No. 755]. 8. The Trustee has determined, subject to this Court’s approval, to retain Fox Rothschild as his attorneys in connection with the administration of this case, effective as of the March 23, 2021, the date upon which Fox Rothschild commenced its services. RELIEF REQUESTED 9. By this Motion, pursuant to 11 U.S.C §§ 327 and 328, Fed. R. Bankr. P. 2014, and Del. Bankr. L.R. 2014-1, the Trustee seeks the entry of an order authorizing him to retain
2and employ Fox Rothschild, effective as of March 23, 2021, as his attorneys to represent and assist the Trustee in these Chapter 7 proceedings. BASIS FOR RELIEF REQUESTED 10. Section 327(a) of the Bankruptcy Code provides that a Chapter 7 trustee may employ an attorney to represent or assist the Chapter 7 trustee in carrying out the trustee’s duties only if that attorney is disinterested, as that term is defined in section 101(14) of the Bankruptcy Code, and does not hold or represent an interest adverse to the estate. See 11 U.S.C. § 327(a). 11. Section 328(a) of the Bankruptcy Code empowers a Chapter 7 trustee appointed under Section 701 of the Bankruptcy Code to employ, subject to court approval, an attorney to perform services for a Chapter 7 trustee under any reasonable terms and conditions of employment, including a retainer, on an hourly basis, or on a contingent fee basis. See 11 U.S.C. § 328(a). A. Fox Rothschild’s Qualifications 12. The Trustee seeks to employ Fox Rothschild because of its extensive experience and knowledge in matters of this nature, and the Trustee believes that Fox Rothschild is well qualified and competent to perform the services required by the Trustee. Fox Rothschild has advised the Trustee that it may have previously represented, may currently represent, and may in the future represent, in matters unrelated to the Debtors and these Chapter 7 cases, entities that are claimants of the Debtors or other parties-in-interest in these cases. Fox Rothschild has not, and will not, represent any such party, or any of their affiliates or subsidiaries, in relation to the Trustee, the Debtors, or these cases. The Trustee believes Fox Rothschild is qualified to represent the Trustee in this case.
3B. Scope of Employment 13. The professional services that Fox Rothschild will provide to the Trustee include, but shall not be limited to, the following: a. to provide legal advice with respect to the powers and duties as a Trustee; b. to prepare on behalf of the Trustee any necessary applications, motions, answers, orders, reports and other legal papers; c. to appear in Court and protect the interests of the Trustee, the estates and the creditors; and d. to perform all other legal services for the Trustee that may be necessary and proper in these proceedings. C. Compensation and Fee Application 14. Subject to Court approval in accordance with Section 330 of the Bankruptcy Code, compensation will be payable to Fox Rothschild at its normal and customary rates, plus reimbursement of actual, necessary expenses and other charges incurred. The principal attorneys and paralegals presently designated to represent the Trustee and their current standard hourly rates are: a. Michael G. Menkowitz (Partner) $ 885 per hour b. Seth A. Niederman (Partner) $ 540 per hour c. Jesse M. Harris (Associate) $ 380 per hour d. Robin I. Solomon (Paralegal) $ 415 per hour 15. The hourly rates set forth above are Fox Rothschild’s standard hourly rates for work of this nature. These rates are set at a level designed to fairly compensate Fox Rothschild for the work of its attorneys and paralegals and to cover fixed and routine overhead expenses. These rates are subject to periodic adjustments to reflect economic and other conditions. Other
4attorneys and paralegals may from time to time serve the Trustee in connection with the matters herein described. 16. It is Fox Rothschild’s policy to charge its clients in all areas of practice for all expenses incurred in connection with a client’s cases. The expenses charged to clients typically include, among other things, telephone and telecopier toll and other charges, mail and express mail charges, special or hand delivery charges, document retrieval, photocopying charges, charges for mailing supplies (including, without limitation, envelopes and labels) provided by Fox Rothschild to outside copying services for use in mass mailings, travel expenses, expenses for “working meals,” computerized research, and transcription costs. Fox Rothschild will charge the Trustee for these expenses in a manner and at rates consistent with charges made generally to Fox Rothschild’s other clients. Fox Rothschild believes that it is more fair to charge these expenses to the clients incurring them than to increase the hourly rates and spread the expenses among all clients. 17. Fox Rothschild has not received or requested a retainer in this case. 18. Fox intends to apply to the Court for interim and final allowance of compensation for professional services rendered and reimbursement of expenses incurred in accordance with Section 330 of the Bankruptcy Code and the other applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, and such other procedures as may be fixed by orders entered by the Court. 19. The Trustee submits that the compensation arrangements with Fox Rothschild are reasonable and at market rates, and similar to the rates charged to other clients in similar circumstances.
5D. Disinterestedness and Disclosure of Connections 20. Except as disclosed in the Menkowitz Affidavit, Fox Rothschild does not represent any entity having an adverse interest with this case. To check and clear potential conflicts of interest in this case, Fox Rothschild researched its client database to determine whether it had any relationships with the following entities, limited to potential conflicts in its engagements as attorneys to the Trustee (collectively, the “Interested Parties”): a. The Debtors, the Debtors’ known affiliates, and the Debtors’ known subsidiaries, including known aliases, trade names, and former names; b. The Trustee; c. The Debtors’ significant equity holders; d. The Debtors’ current and former officers and/or directors; e. The Debtors’ 30 largest (consolidated) unsecured claim holders; f. Lolli & Pops Holdings LLC (the buyer of substantially all of the Debtors’ assets during the Chapter 11 cases); g. Judges and staff of the Delaware Bankruptcy Court; h. Attorneys of the Office of the United States Trustee; and i. Other known parties with an actual or potential interest. A full list of the Interested Parties searched is attached to the Menkowitz Affidavit as Schedule A, and incorporated by reference herein. To the extent that Fox Rothschild’s research of its relationships with the Interested Parties indicates that Fox Rothschild has represented, or currently represents, any of these entities, the identities of these entities are disclosed on Schedule B of the Menkowitz Affidavit. 21. To the best of the Trustee’s knowledge, and except as otherwise disclosed in the Menkowitz Affidavit: (a) Fox Rothschild has no connection with the Debtors, the Debtors’ 30 largest unsecured claim holders, the Office of the United States Trustee for the District of
6Delaware, any person employed in the Delaware Office of the United States Trustee, or any other party with an actual or potential interest in this case or their respective attorneys; (b) Fox Rothschild is not, and has not been, an investment banker for any outstanding securities of the Debtor; (c) Fox Rothschild does not hold or represent an interest adverse to the Debtors’ estates; and (d) Fox Rothschild is a “disinterested person” as that phrase is defined in Section 101(14) of the Bankruptcy Code. 22. The Trustee contends that Fox Rothschild’s employment is necessary and in the best interests of the Trustee, the estates, and the creditors. NOTICE 23. Notice of this Motion has been provided to: (a) the Office of the United States Trustee for the District of Delaware; (b) counsel for the Debtors; (c) counsel for the Debtors’ secured creditors; and (d) those persons who have requested notice pursuant to Bankruptcy Rule 2002. The Trustee submits that no further notice is required and requests that the Court determine such notice is adequate and proper. CONCLUSION WHEREFORE, the Trustee respectfully requests that this Court enter an Order (a) authorizing the Trustee to retain and employ Fox Rothschild as his attorneys in these proceedings pursuant to 11 U.S.C. §§ 327 and 328, Fed. R. Bankr. P. 2014 and Del. Bankr. L.R. 2014-1, effective as of March 23, 2021; and (b) granting such other relief as is just and proper. /s/ Alfred T. Giuliano Alfred T. Giuliano, Chapter 7 Trustee for the Jointly estate of Mishti Holdings LLC, et al. Dated: April 22, 2021