the still-used sham 1998 bear stearns(JP Morgan)-goldberg finance agreement

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA

In re: Case No. 97-14687-BKC-AJC Chapter 7

STEPHEN JAY LAWRENCE

'.-_T V r —,

:V3

i'J

' I

• J: c £ Debtor. 3 '•"

/ • °n

TRUSTEE'S MOTION FOR APPROVAL OF COMPENSATION ARRANGEMENT FOR COUNSEL TO AND EXPERTS FOR THE TRUSTEE AND BANKRUPTCY

RULE 2014 DISCLOSURES

ALAN L. GOLDBERG, the duly appointed and acting Chapter 7 Trustee for the estate

of Stephen Jay Lawrence (the "Debtor"), by and through his undersigned counsel and pursuant

to Bankruptcy Rule 2014 requests that this Court approve the Trustee's proposed third party

arrangement for compensation of the Trustee's counsel, and in support thereof, respectfully

represents that:

1. On June 12, 1997, the Debtor filed his voluntary Chapter 7 petition and invoked

the jurisdiction of this Court.

2. On June 12, 1997, Movant was appointed to serve as the duly qualified and acting

Chapter 7 Trustee for the estate of the Debtor.

3. On June 20, 1997, Movant filed an Application For Employment ofBerger Davis

& Singerman, P.A. ("BDS") As Attorney For The Trustee Nunc Pro Tunc To June 17, 1998.

4. On June 23, 1997, this Court entered an Order Approving Employment ofBerger

Davis & Singerman, P.A., As Counsel To The Trustee.

5. On March 4, 1998, Movant filed an Application For Employment of Kozyak,

Tropin & Throckmorton, P.A., ("KTT") as Cp-Counsel For The Trustee (Court Paper # 171-1).

F:\4884\00I\ p***" COMP.AGR 6/11/98

Berger Davis & Singerman 200 South Biscayne Boulevard Suite 2950 Miami, Florida 33131-5308 Phone: 305.755.9500 Fax: 305.714.4340

6. On March 12, 1998, this Court entered an Order Approving Employment ofKTT,

As Counsel To The Trustee (Court Paper #174-1).

7. The Trustee's retention of KTT was occasioned as a result of the February 5, 1998

Order ' of this Court which determined, in part, that out of an abundance of caution, but without

any specific findings of any actual conflict of interest, that BDS should not pursue the claims of

the Trustee against the estate of Frederica Lawrence 2.

8. On November 12, 1997, the Debtor filed a Motion A) To Compel Disclosure Of

Any Actual Or Potential Compensation Agreement; and B) To Disqualify Trustee And His

Counsel (Court Paper #94-^("Disqualification Motion").

9. The Debtor's Disqualification Motion baldly and without factual basis accused

BDS and the Trustee of having entered into an improper arrangement with the largest creditor

of the -estate, Bear, Stearns & Company ("Bear, Stearns"), wherein Bear, Stearns would

compensate the Trustee and/of BDS for their efforts in this case.

10. At the December 3, 1997 hearing on the Debtor's Motion to Disqualify, the Court

received and considered detailed testimony from the Debtor, his Counsel and the Trustee during

the course of an evidentiary hearing of several hours duration, the transcript of which is 145

pages in length.

1 Order Granting In Part And Denying In Part Trustee's Supplemental Motion For Employment Of Berger Davis And Singerman, P.A. As Attorneys For The Trustee (Court Paper #141-1)

2 The Trustee's retention of Kozyak, Tropin & Throckmorton, V.A. was not confined to issues relating to Frederica Lawrence.

F:\4884\O01\ COMP.AGR 6/11/98 2

Berger Davis & Singerman 200 South Biscayne Boulevard Suite 2950 Miami, Florida33131-5308 Phone: 305.755.9500 Fax: 305.714.4340

11. After considering all of the evidence, the Court ruled that there was no evidence

of any potential compensation agreement between Bear, Stearns and the Trustee and/or his

counsel nor was there any other improper or otherwise inappropriate conduct or activities on the

part of the Trustee or BDS. The Court found that the Debtor had wholly failed to meet his

burden to disqualify the Trustee or BDS. See, March 25, 1998 Order Denying Debtor's Motion

To Compel Disclosure of Actual and Potential Compensation Agreements and to Disqualify

Trustee and His Counsel, Par. (l)(e) & (f); (2).

12. The Court also ruled that if any such compensation agreement existed and was

properly disclosed under Bankruptcy Rule 2014, that such an arrangement would be proper and

of benefit to the estate. See, March 25, 1998 Order Denying Debtor's Motion to Compel

disclosure of Debtor and Potential Compensation Agreement and to Disqualify Trustee and His

Counsel, Par. (1) (k). This Court held:

"The Court finds that the type of third party compensation agreement complained of by the Debtor is not per se objectionable. Such agreements, if properly documented,;disclosed and approved by Order of the Bankruptcy Court are recognized and accepted methods of compensating functionaries of the estate where no assets or other means to provide compensation exist. Efforts to reach such agreements which often facilitate the prosecution of claims and the recovery of money or property for distribution to creditors are to be applauded, not condemned."

13. On May 5, 1998, the Trustee and his counsel engaged in the first direct discussions

with Bear, Stearns with respect to a third party compensation agreement.

14. Pursuant to Bankruptcy Rule 2014, this pleading is expressly intended to constitute

full compliance with Bankruptcy Rule 2014, and seeks to obtain express authorization from this

Court to enter into the compensation arrangement disclosed hereinbelow.

F:\48S4\O01\ COMP.AGR 6/11/98

Berger Davis & Singerman 200 South Biscayne Boulevard Suite 295.0 Miami, Florida33131-5308 Phone: 305.755.9500 Fax: 305.714.4340

15. Bear, Steams has agreed to pay the Bankruptcy Court approved legal fees and

expenses incurred by BDS, KTT, and any experts retained by the Trustee with the approval of

the Bankruptcy Court, in the event that there does not exist sufficient funds in the estate to cover

the allowed fees and expenses of counsel and such experts.

16. BDS and KTT have each agreed to provide Bear, Stearns with monthly,

informational time-billing reports, which reports shall be appropriately redacted to assure that

attorney-client privileged materials are not compromised.

17. Nothing contained in this Agreement shall in any manner preclude Bear, Stearns

from filing and prosecuting an objection to any of the fee applications filed by BDS, KTT and/or

the Court approved experts.

18. BDS and KTT shall be first required to seek payment of their allowed fees and

expenses from the available assets of the estate, after the payment therefrom of allowed fees and

the expenses of the Trustee. Bear, Stearns has not agreed to guaranty or pay any fees or

expenses which may be awarded by the Court to the Trustee.

19. In the event that there are insufficient funds within the estate from which to

compensate BDS for its allowed fees at its regular hourly rates, BDS has agreed: A) to accept

reduced rates of twenty (20%) percent off its regularly billed hourly rates for its attorneys; and

B) to credit Bear, Stearns with a one-time waiver of $25,000.00 of fees which may be awarded

by the Court. If there are sufficient funds in the estate to pay the any fees awarded by the Court

to BDS, BDS will receive its regular non-discounted fees, as allowed by the Court. Bear, Steams

will compensate KTT and any Court approved experts at par.

F:\4884\001\ COMP.AGR 6/11/98 4

Berger Davis & Singerman 200 South Biscayne Boulevard Suite 2950 Miami, Florida33131-5308 Phone: 305.755.9500 Fax: 305.714.4340

20. To the extent that funds are realized by the estate subsequent to any payment of

fees and expenses by Bear, Steams under the terms of this Agreement, Bear, Steams shall be

entitled to an immediate reimbursement of any and all fees and expenses which it has paid to

BDS, KTT and/or any Court approved experts under this Agreement (subject to the maintenance

of a proper reserve for the fees and expenses which may be due to the Trustee), upon the filing

of an affidavit with the Court setting forth the dates and amounts of the payments made to BDS,

KTT and/or any Court approved experts.

21. Bear, Stearns, BDS and/or KTT. shall each have the right to terminate their rights

and obligations under this Agreement by providing written notification to each of the parties

hereto, the Office of the United States Trustee and with a copy to the Bankruptcy Court.

Notwithstanding the foregoing, the obligations of Bear, Steams hereunder shall remain valid and

enforcable up through and including the date of the issuance of the notification of termination

by any party hereto.

22. This Agreement may be executed in counterparts and each such counterpart,

including the signature pages thereof shall be considered original copies for purposes of filing

with the Bankruptcy Court.

23. As this Court is well aware, this case has generated extraordinarily complex,

voluminous and detailed litigation. In order to assure the maximum recovery to creditors in what

has been until recently a wholly assetless estate, the Trustee believes that the voluntary agreement

by Bear, Steams to be responsible for the legal fees and expenses incurred on behalf of the estate

in the prosecution of the Trustee's numerous claims against the Debtor and his assets is a

substantial benefit to the estate and all of the creditors.

F:\4884\001\ COMP.AGR 6/11/98 5


24. This Motion was not filed earlier because of stay which was imposed by the United

States District Court, pursuant to an Order dated May 13, 1998, in District Court Docket 98-587-

Cv-Nesbitt.

. WHEREFORE, it is requested that this Court enter an Order:

1. Directing that (i) BDS, KTT and any Court approved experts file their fee

applications in this case in the ordinary course, and that to the extent that there are estate funds

from which any such allowed fees and expenses may be paid, after payment or reserve for fees

and costs which may be awarded to the Trustee, BDS, KTT and /or any Court approved experts

shall receive their compensation from said estate assets and (ii) in the event that BDS, KTT

and/or the Court approved experts are unable to receive their allowed fees and expenses from the

available assets of the estate, Bear Stearns is authorized and directed to pay the fees and expenses

incurred by KTT at par and to pay BDS for its fees (net of the $25,000.00 referenced in

Paragraph 19 (B) above) at the reduced rate of twenty (20%) off the regular hourly rates charged

for attorneys at BDS and the expenses incurred by BDS at par;

2. Allowing Bear, Stearns to be reimbursed for any and all fees and expenses paid

to BDS, KTT and/or any Court approved experts under this Agreement from estate assets once

realized (and subject to the maintenance of a proper reserve for the fees and expenses to the

Trustee) upon the filing of an Affidavit setting forth the dates and amounts of the fees and

expenses advanced to BDS, KTT and/or any Court approved experts; and

3. Granting such other and further relief as may be just and proper.

F:\4884\001\ COMP.AGR 6/11/98 6


LOCAL RULE 910 (A) CERTIFICATION (AS TO COUNSEL ONLY)

We HEREBY CERTIFY that we are admitted to the Bar of the United States

District Court for the Southern District of Florida and we are in compliance with the additional

qualifications to practice in this Court set forth in Local Rule 910(A).

BERGER DAVIS & SINGERMAN, P.A. Attorneys for Trustee 200 S. Biscayne Boulevard Suite 3410 Miami, FL 33131 Telephone No. (305) 755-9500

I (HUU^V I.AM. Steveh Singe^naii, Paul

Fla. Bar No. 378860 Esq.

KRAMER, GREEN, ZUCKERMAN & KAHN, P.A. Attorneys for Bear, Steams & Co. 4000 Hollywood Blvd., Suite 485 South Hollywood, FL 33021 Telephone No. (954) 966-2112

Howard Kahn, Esq. Fla. Bar No. 0724416

MARK D. COHEN, P.A. Attorney for Bear, Stearns & Co. 4000 Hollywood Boulevard Suite 485 South Hollywood, FL 33021 Telephone No. (954) 962-1166

Mark D. Cohen, Esq. Fla. Bar No. 347345

BEAR, STEARNS SECURITIES CORP. 245 Park Avenue Third Floor New York, NY 10167

Daniel S. Taub Managing Director

KOZYAK TROPIN & THROCKMORTON, P.A. 2800 First Union Financial Center 200 South Biscayne Boulevard Miami, FL 33131-2335

John W. Kozyak, Esq. Fla. Bar No. 200395

F:\4884\O01\ COMP.AGR 6/11/98







KRAMER, GREEN, ZUCKERMAN & KAHN, P.A. Attorneys for Bear, Steams & Co. '4000 Hollywood Blvd., Suite 485 South Hollywood, FL 33021 Telephone No. (954) 966-2112

Paul Steven Singerman, Esq. Fla. Bar No. 378860

Howard Kahn, Esq. Fla. Bar No. 0724416

MARK D. COHEN, P.A. Attorney for Bear, Stearns & Co. 4000 Hollywood Boulevard Suite 485 South Hollywood, FL 33021 Telephone No. (954) 962-1166






\f'

F:\4884\001\ COMP.AGR 6/2/98 7

Berger Davis & Singerman 200 Souih Biscayne Boulevard Suite 2950 Miami, Florida 33131-5308 Phone: 305.755.9500 Fax: 305.714.4340






KRAMER, GREEN/^UCKERMAN & KAHN, P.A. Attorneys for Bea£ Steams/& Co. 4000 Hollywoo/Blvd., S^ite 485 South Hollywood, YD 3302UT Telephone Nc/(954yfU-J^]A2


Howard Kahn,>e.sq. Fla/Bar No 1)724416

MARK D. COHEN, P.A. Attorney for Bear, Steams & Co. 4000 Hollywood Boulevard Suite 485 Sol * Hollywood] Hi) \33021 TelepHbftie 4 * ^ ^ 5 4 ) 962-1166

MarkUAjiuoften, esq. Fla. Bar % V 7 3 4 5


BEARygTEARNS SECURITIES CORP. 245 Park Avenue Third Floor New York, NY 10167


John W. Kozyak, Esq. Fla, Bar No. 200395

F:\4884\001\ COMP.AGR 6/2/98






BERGER DAVIS & SINGERMAN; P.A. Attorneys for Trustee 200 S. Biscayne Boulevard Suite 3410 Miami, FL 33131 Telephone No. (305) 755-9500

KRAMER, GREEN, ZUCKERMAN & KAHN, P.A. Attorneys for Bear, Stearns & Co.

. 4000 Hollywood Blvd., Suite 485 South Hollywood, FL 33021 Telephone No. (954) 966-2112


Howard Kalin, Esq. Fla. Bar No. 0724416

MARK D. COHEN, P.A. Attorney for Bear, Steams & Co. 4000 Hollywood Boulevard Suite 485 South Hollywood, FL 33021 Telephone No. (954) 962-1166



)aniel S. Taub Managing Director



F:\4884\001\ COMP.AGR 6/2/98

Berger Davis & Singerman 200 South Biscayne Boulevard Suite 2950 Miami. Florida 33131-5308 Phone: 305.755.9500 Fax: 305.714.4340

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Trustee's Motion

For Approval Of Compensation Arrangement For Counsel To And Experts For The Trustee And

Bankruptcy Rule 2014 Disclosures to all parties on the attached Service List via regular, first

class U.S. Mail^this the [A_ day of June, 1998.

BERGER DAVIS & SINGERMAN, P.A. Attorney for Trustee 200 South Biscayne Blvd. Suite 3410 Miami, FL 33131 Phone: (305) 755-9500 Fax: (305) 375-7740

By: Paul SteveW Singehnan Florida Bar No. 0378860

F:\4884\001\ COMP.AGR 6/11/98 8

Berger Davis & Singerman 200 South Biscayne Boulevard Suite 2950 Miami, Florida 33131-5308 Phone:305.755-9500 Fax:305-714.4340

SERVICE LIST

Robert A. Stok, Esq. Rosenthal, Rosenthal Rasco et al. Turnberry Plaza, Suite 50 0 2875 Northeast 191st Street Aventura, FL 33180

Mark D. Cohen, Esq. Mark D. Cohen P.A. 4000' Hollywood Blvd., Suite 485S Hollywood, FL 33021

Howard N. Kahn, Esq. Kramer, Green, Zuckerman & Kahn, P.A. 4000 Hollywood Blvd., Suite 485-South Hollywood, FL 3 3 021

Susan E. Trench, Esq. Goldstein & Tanen, P.A. Suite 3250 One Biscayne Tower Two South Biscayne Blvd. Miami, FL 33131

Richard Goldstein, Esq. Goldstein & Tanen, P.A. Suite 3250 One Biscayne Tower Two South Biscayne Blvd. Miami, FL 33131

Office of the U.S. Trustee 51 S.W. First Avenue Room 12 04 Miami, FL 3 313 0

Alan Goldberg, Trustee 3250 Mary Street Suite 301 Coconut Grove, FL 3 3133

Brian Behar, Esq. Behar, Gutt & Glazer, P.A. Concorde Center II 2999 Northeast 191 Street, Suite 800 Aventura, Fl. 3 318 0

Jill Traina, Esq. 4 000 Hollywood Blvd. Suite 485 South Hollywood, Fl. 33021

Berger Davis & Singerman 200 South Biscayne Boulevard Suite 2950 Miami, Florida 33131-5308 Phone: 305.755.9500 Fax:305-714.4340

Michael Budwick Kozyak Tropin & Throckmorton 2 00 S. Biscayne Blvd. Suite 2800 Miami, Florida 33131

Stephen Jay Lawrence 19500 Turnberry Way #23 A Aventura, Fl. 33180

Harold D. Moorefield, Jr., Esq. Stearns, Weaver, Miller, Weissler Alhadeff & Sitterson, P.A. Museum Tower 150 West Flagler Street Miami, Florida 33130

Berger Davis & Singerman 200 South Biscayne Boulevard Suite 2950 Miami, Florida 33131-5308 Phone; 305.755.9500 Fax; 305.714.4340

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA

In re: Case No. 97-14687-BKC-AJC Chapter 7

STEPHEN JAY LAWRENCE

Debtor.

/

NOTICE OF HEARING

•NOTICE IS HEREBY GIVEN that a hearing will be held in the above matter at

a.m. on the day of , 1998,

at the following location: (XX) Claude Pepper Federal Bldg., 51 S.W. 1st Avenue,

Courtroom 1410, Miami, Florida 33130

( ) U.S. Courthouse, Courtroom , 299 E. Broward Blvd., Ft. Lauderdale, Florida 33301

( ) Paul G, Rogers Federal Building, Courtroom #6, Room 312, 701 Clematis Street, West Palm Beach, Florida 33401

to consider the following: TRUSTEE'S MOTION FOR APPROVAL OF COMPENSATION ARRANGEMENT FOR COUNSEL TO AND EXPERTS FOR THE TRUSTEE AND BANKRUPTCY RULE 2014

DISCLOSURES

DATED: KAREN EDDY Clerk of Court

By: Courtroom Deputy

The movant, or movant's counsel, James H. Fierberg, shall serve a copy of this notice and, unless previously served, the above-described pleading to all required parties and within the time frames required by the Federal Rules of Bankruptcy Procedure, Local Rules, or orders of the court, and shall file this original notice and completed certificate of service (printed on reverse) with the court.

All moving or objecting parties shall bring to the hearing, a proposed order, sustaining their position, with appropriate copies and envelopes.

the still-used sham 1998 bear stearns(JP Morgan)-goldberg finance agreement

Documents

Transcript of the still-used sham 1998 bear stearns(JP Morgan)-goldberg finance agreement