Vermilion Bay Land Co. v. Fitzgerald

MILLER, Circuit Judge

(dissenting in part).

The claims of Harold M. Shapero and J. Adrian Rosenberg, attorneys for a group who held ranching contracts with the debt- or, of Edward T. Kelley and Darden and Brashear, attorneys for a stockholders committee, and of Harley C. Waitman and others, forming a group of stockholders, for attorneys’ fees, were rejected in toto by the District Court. I disagree with so much of the majority opinion as approves that disposition of those claims. The ruling in each instance appears to be based largely upon the finding that the legal services rendered in connection with the formulation of the plan were primarily for the benefit of special clients to whom the at- • torneys could and should look for their compensation. I do not believe that such a finding justifies the rejection of the claim, provided the services contributed to the plan. Sections 242 and 243 of the Act, Sections 642 and 643, Title 11 U.S.C.A.., do not contain such a limitation, but on the contrary authorize compensation to such claimants if either the services contributed to the plan or were beneficial in the administration of the estate. They do not require that both conditions exist. These sections supersede and to some extent change the earlier provisions of Section 77B of the Bankruptcy Act dealing with allowances. See Hearings before House Judiciary Committee, 75th Congress, 1st Sess. (1937) 186; In re Porto Rican American Tobacco Co., 2 Cir., 117 F.2d 599, 601. To a certain extent all creditors and stockholders, and the attorneys representing them, are actuated by their personal interests, but such an interest does not prevent them from joining with others in constructing a plan which is acceptable to other parties in interest and to the Court. In my opinion, the services rendered by these attorneys contributed to the plan, regardless of the benefit which their clients derived from the plan, and should be compensated for by an allowance by the District Court. If such allowances increase the total allowances to an unreasonable amount, a general revision of all allowances would be the remedy.