|
Bryan Marsal
and John Suckow of Alvarez & Marsal are essentially running what
remains of Lehman Brothers.
Mr. Marsal
serves as Lehman’s C.E.O., while Mr. Suckow is Lehman’s president
and chief operating officer.
The lawyers, accountants and restructuring experts overseeing the
remains of Lehman Brothers have already racked up more than $730
million in fees and expenses, with no end in sight.
Anyone wondering
why total fees doled out in the Lehman bankruptcy could easily
total the $1 billion mark merely has to look at the bills buried
among the blizzard of court documents.
They’re a Baedeker to the continuing bankruptcy bonanza, a world
where the meter is always running — sometimes literally: in the
months after Lehman’s collapse in September 2008, the New York law
firm Weil, Gotshal & Manges paid one car-service company alone more
than $500 a day as limo drivers cooled their heels waiting for
meetings to break (and this in a city overflowing with taxis).
While most of corporate America may be just emerging from the Great
Recession, bankruptcy specialists have spent the last two years
enjoying an unprecedented boom.
The mega cases — Lehman, General Motors, Chrysler and Washington
Mutual, to name a few — are orders of magnitude larger than most
bankruptcies in the past, and their size and complexity have created
a feeding frenzy of sorts for those asked to sort them out.
To date,
Weil, the lead law firm representing Lehman, has billed the Lehman
estate for more than $164 million.
With first- and second-year associates charging more than $500 an
hour in some of these bankruptcy cases, according to court records,
that can amount to some pretty expensive downtime. At several firms,
including Weil and Milbank, Tweed, Hadley & McCloy, partners now
charge $1,000 an hour or more for their bankruptcy services.
THINK the lawyers are expensive? Meet the consultants.
Alvarez & Marsal, a turnaround firm that is essentially running what remains
of Lehman, has billed more than $262.1 million.
A Brownfield partner said an employee didn’t realize that there was
a separate charge to use the fitness club and didn’t notice it on
the hotel bill. The firm agreed to remove the charge after the
examiner brought it to the firm’s attention.
Analysts say bounteous fees reduce the money left for creditors.
In the Lehman case, some unsecured creditors,
including bondholdrs, banks and vendors, are likely to get just 14.7
cents on the dollar for their claims, according to Lehman’s proposed
reorganization plan.
Nor will they get their money quickly — some
experts say they believe that the Lehman case could drag on for
three to five more years.
“The legal skill we used to sell Lehman’s North American capital
markets business to Barclays saved 10,000 jobs and preserved the
business itself, capturing value that otherwise would have been
lost,” said Harvey Miller, 77, a Weil partner who is considered the
dean of the bankruptcy bar.
Many people in the industry agree that Lehman, in particular, is a
huge case that tests even the most experienced lawyers. “Lehman is a
sufficiently complicated company that it would be safe to assume
that if it weren’t for equally sophisticated professionals running
the Chapter 11 case, that the creditors would essentially receive
nothing,” says Stephen J. Lubben, a professor at the Seton Hall
University School of Law. “In those situations, it makes sense for
sophisticated professionals to handle the case.”
Others, however, have a distinctly different perception about the
fees that advisers are harvesting in bankruptcies.
“It violates any sense of proportion,” says Kenneth Feinberg, the
Washington lawyer who serves as the “pay czar” for banks bailed out
by the government and whom the court appointed last June to monitor
fees associated with the Lehman bankruptcy. The court asked him to
participate after concerns were raised in the news media about the
soaring fees in the Lehman case.
Harvey Miller defends the $164 million his firm has billed to
Lehman.
“Unemployment is over 9 percent, and to be paying first-year
associates $500 an hour angers the public,” he observes. “People
read about all of this and say that lawyers and the legal system are
one more example of Wall Street out of control.”
Despite the rise in bankruptcy fees over the years, there was little
or no public criticism or pushback until recently. Lawyers were
reluctant to challenge their peers, fearing retaliation. Analysts
say watchdogs from the United States Trustee’s office, a part of the
Justice Department that oversees bankruptcy cases and monitors
billing practices and possible conflicts, were overworked and
outgunned. Even as its workload has increased, the Trustee’s office
has seen its staffing fall to 1,323 in 2010 from 1,468 in 2007.
Meanwhile, judges, many of whom used to work at the firms now
benefiting from the bankruptcy boom, were also reluctant to
challenge the status quo. All of this, analysts say, has fed a legal
culture with few restraints on billing for bankruptcies.
“I don’t think professionals cheat the client, but in a number of
ways they can talk themselves into doing things that they wouldn’t
do for clients outside of bankruptcy,” says Nancy B. Rapoport, a
former bankruptcy lawyer at Morrison & Foerster who teaches law at
the University of Nevada, Las Vegas. “If you send eight people to a
hearing because there is an outside chance they might have to speak
at that hearing and you try that outside of bankruptcy the client
will go ballistic.”
Now, however, a handful of fee examiners in several high-profile
bankruptcies are taking a harder line on such charges, setting the
stage for a confrontation with lawyers and consultants opposed to
the moves. Both Mr. Feinberg and the examiner in the G.M. case,
Brady C. Williamson, for instance, have suggested reductions in
hourly fees charged by some firms.
That’s the kind of precedent that sets some of the bankruptcy
industry leaders’ teeth on edge. “Mr. Feinberg doesn’t know what
he’s talking about,” says Mr. Miller. “We don’t generally give
discounts. Just because bankruptcy has been the hot legal area for
the last 19 months doesn’t demand you cut fees.”
If Mr. Feinberg and others succeed in reining in certain fees and
expenses, the outcome could reverberate through the bankruptcy
universe.
“This is a very important test case; it’s bigger than just Lehman,”
observes Mr. Feinberg. “The culture of bankruptcy is unique.”
So what, asks Bryan Marsal, co-founder of the restructuring firm
Alvarez & Marsal. “I don’t care whether Feinberg or Moses comes into
this case, you’re not going to get me to apologize,” he says. “If
you look at this case in the context of the billions of dollars that
has been recovered and the billions of dollars in claims that have
been managed, just because the case was big doesn’t mean it was
operated inefficiently.”
ON the evening of Sunday, Sept. 14, 2008, Mr. Marsal was sitting in
his study in Westchester County, N.Y., when the phone rang.
Calling was Mark Shapiro, who ran Lehman’s restructuring practice.
He told him that Lehman’s lawyers were preparing a bankruptcy filing
and that the board wanted Mr. Marsal’s firm to oversee the
bankruptcy and eventual liquidation after Barclays and others bought
pieces of the firm.
Since receiving that call, Mr. Marsal’s firm has been billing $13
million to $18 million a month in fees and expenses for its work on
Lehman, a 160-year-old name on Wall Street.
Mr. Marsal says the firm will most likely bill at $13 million a
month through October, just after the second anniversary of Lehman’s
collapse. After that, rates will begin to decrease, although Alvarez
& Marsal will also earn an incentive fee at the end of the case,
which could total more than $50 million.
A jovial, self-deprecating man who points out a coffee stain on his
shirt and, later, jokes that he wants to put on a blazer to hide a
rotund midsection, Mr. Marsal is unapologetic about the fees that he
and his staff are earning. Those fees pay for the salaries of the
150 people from Alvarez & Marsal now working inside Lehman (down
from a peak of 185), including Mr. Marsal himself. He serves as
Lehman’s C.E.O., while John Suckow, an Alvarez & Marsal managing
director, is Lehman’s president and chief operating officer.
“The size of
this case justifies the size of the fees,” says Mr. Marsal,
shrugging as he sits in a conference room at Lehman’s headquarters
in Midtown Manhattan. Mr. Marsal and Mr. Suckow estimate that they
have increased the potential recovery value for Lehman creditors by
$4 billion to $5 billion in the last year.
As if the magnitude of the bankruptcies weren’t enough, there’s also
the matter of the complex financial instruments that some of the
companies held.
“There was commercial real estate, bank loans — all of that stuff is
pretty well known to our team, but derivatives? We hadn’t had much
experience in derivatives,” acknowledges Mr. Marsal, who added that
his firm hired two subcontractors to work through Lehman’s
derivatives book.
Mr. Miller adds that those derivatives, even today, are taking up a
lot of time and energy. “We’re still in the process of unwinding
them,” he says, “which raises all sorts of difficult and novel legal
issues.”
In April, Lehman filed a plan with the court that would create an
asset-management business, called Lamco, that would manage Lehman’s
real estate and private-equity assets for five years.
By not selling some assets at fire-sale prices, the estate will be
able to recoup much more money for creditors, notes Mr. Marsal.
“The money that’s going to the creditors is my money,” he says,
pointing out that he’s aligned with the creditors’ goals. That’s
because, at the end of the case, Mr. Marsal’s firm will receive an
incentive fee that is based on a percentage of the money returned to
creditors.
Mr. Marsal says critics should be careful about identifying where
problems lurk in bankruptcy fees. He says the savings that result
from making sure that no one is flying first class to Europe are
“peanuts.”
“You should be much more worried about the two or three lawyers who
are overbilling and whether they should even be in attendance at a
meeting,” he says. “I think the fee committee and the fee examiner
is a lot of hooey.”
IF anyone is a master of getting to yes, it’s Kenneth Feinberg. As a
mediator, he brokered settlements in long-running product liability
suits brought by those who said they were victimized by Agent
Orange, asbestos and the Dalkon Shield. More recently, he managed to
win praise on delicate assignments like determining how much the
Sept. 11 Victim Compensation Fund should pay out — or what is an
appropriate salary for an executive at a financial institution that
the government propped up with taxpayer funds.
But he says that challenging bankruptcy lawyers is tougher in some
ways. “In the 9/11 case, the country was behind me; as pay czar,
there was a lot of support for what I was doing,” he says. “This is
more problematic.”
In particular, Mr. Feinberg is perplexed by why fees keep rising in
the Lehman case, even though it’s no longer the chaotic affair it
was in the weeks and months after the bankruptcy filing. “Now the
emergency is over; it is more like a traditional bankruptcy,” he
says. “Yet the fees are higher than ever.”
Mr. Feinberg has managed to get under the skin of the lawyers in the
case. And he is equally frustrated. His voice rising and Boston
accent thickening (think “debt-ah” and “credit-ah”), he says that
bankruptcy professionals “still haven’t gotten the message.”
The four-member Lehman fee committee, of which Mr. Feinberg is
chairman, has disagreed about how to rein in fees, he says. But he
declines to elaborate. Mr. Miller says it’s because creditors and
debtors are willing to pay well so they can get “the best
representation possible.”
On a rainy summer day last year, Mr. Feinberg journeyed to the plush
offices of Mr. Miller in the General Motors building in Manhattan.
His pitch was simple: Cut 10 percent to 15 percent right off the top
of the fees being billed.
Mr. Miller and Dennis Dunne, a partner at Milbank who represents
creditors, told him, “You don’t know how complicated this is; you
don’t know how difficult it is,” Mr. Feinberg recalls.
Mr. Miller doesn’t dispute Mr. Feinberg’s account,
and Mr. Dunne declined to comment for this article.
Despite these frictions, a deal was eventually struck.
Among the new fee rules being enforced are these: Air travel must be
in coach class only. Ground transportation is limited to $100 a day,
and only after 8 p.m. Hotel rooms are capped at $500 a night.
Photocopy charges are limited to 10 cents a page. Late meals can’t
be more than $20 each.
“If you continue to violate the very guidelines that are in place,
50 percent of the disputed amounts will be deducted,” says Mr.
Feinberg. After that, the full amount will automatically be
deducted, he added.
The lawyers reserve the right to challenge the fee committee’s
decisions at the end of the case, but the ultimate call will be up
to the bankruptcy judge, James Peck. He declined to comment.
Mr. Feinberg has so far challenged a very small percentage of the
fees and expenses in the case. But he is intensifying his efforts.
In March, the court increased his monthly budget to $250,000 from
$75,000, giving Mr. Feinberg more accountants, examiners and others
to pore over records and to zap overcharges. His firm and the fee
committee have billed the Lehman estate $645,000 in fees for
services through March.
Already, he’s called out Jones, Day, saying it charged $70,800 extra
for photocopying and spent $2,856 too much on taxi rides last
summer. According to court filings, a Jones, Day partner, William
Hine, claimed more than $2,100 for late-night rides home in one
month. Milbank, according to court filings, charged $148,426 just to
compile its bills and time records — a move akin to a doctor
charging a patient to prepare a bill after expensive, complex
surgery.
“Lawyers don’t charge for invoice preparation except in bankruptcy,”
Mr. Feinberg says. “I’ve prepared bills my entire professional life.
You don’t charge a fee. Most people would argue that charging
anything is inappropriate.”
Jones, Day and Milbank both declined to comment.
Like the restructuring executives, bankruptcy lawyers seem defiant
and want to make sure precedents aren’t set that would make it
easier to curb fees in the future.
“When people work late and they want to go home, we don’t like to
send people in the subway at midnight or thereafter,” Mr. Miller
says. “I don’t believe it’s appropriate to require people to fly
coach for 15 hours and then go to a meeting.”
Nevertheless, Mr. Miller is going along with Mr. Feinberg’s
guidelines.
“Those are the rules; we’re going to abide by the rules and pick up
the difference,” Mr. Miller says.
FOR all his annoyance at Mr. Feinberg’s role in the Lehman case, Mr.
Miller saves his real vitriol for Mr. Williamson, the fee examiner
in the G.M. bankruptcy, which Weil also worked on. In the case’s
first seven months, Weil accounted for $16.5 million of the $90
million in fees paid. Mr. Williamson objected to a small portion of
the expenses. Weil, according to court documents, agreed to deduct
$500 in expenses relating to the cancellation of a vacation, and
said that any first-class travel charges were included
“inadvertently” and reduced. It also agreed to pay for any meals in
excess of $20.
Mr. Williamson also recommended that a 5 percent cut in Weil’s
overall rates would be “appropriate,” especially given that several
other large firms in the case already provided discounts.
“Williamson is way off base,” says Mr. Miller. “He perceives himself
to be a sage, giving advice to the world, and that is not his role.”
Mr. Williamson wrote in an e-mail message: “Courts appoint
independent examiners to help ensure transparency and
accountability, most recently where tax dollars and significant
economic issues are at stake. Not everyone, unfortunately, always
appreciates either the role or the rules the examiner is bound to
apply.”
Mr. Miller sees his own work as a battle between corporate life and
death, with the money spent on photocopies and dry cleaning an
insignificant detail.
“If you had cancer and you were going into an operation, while you
were lying on the table, would you look at the surgeon and say, ‘I’d
like a 10 percent discount,’ ” he explains. “This is not a public,
charitable event.” |