UNITED STATES BANKRUPTCY
COURT
EASTERN DISTRICT OF
KENTUCKY
LEXINGTON DIVISION
IN RE:
RUSSELL CAVE COMPANY, INC.
f/k/a
The J. Peterman Company
DEBTOR CASE
NO. 99-50142
CHAPTER
11
MEMORANDUM
OPINION
This matter is before the Court on the Objection of
the Official Committee of Unsecured Creditors (the Committee)to the claim of
Donald Staley (Staley), evidenced by his proof of claim #3077 in the amount
of $1,240,595.87. The Committees
objection first appeared as part of its Objection ... to Pre-Petition Employee
Claims (Doc. #604). Upon the filing of
that Objection, Staley filed a Memorandum of Law in Support of Opposition to
Objection to the Official Committee of Unsecured Creditors to Pre-Petition
Claims of Donald Staley (Doc. #758).
The Committee then filed its Supplemental Objection ... to Claim of
Donald Staley (Doc. #853), which set out in detail its objection to Staleys
proof of claim. The debtor has also
filed an Objection to Claim of Donald Staley (Doc. #859), and an Amendment to
Objection (Doc. # 1001), but has withdrawn from active pursuit of its
objections, allowing the Committee to argue the case for the denial or
limitation of Staleys claim. Both
parties have filed further briefs. The parties have also entered into extensive
Joint Stipulations (Doc. #1094), which are incorporated herein by
reference.
Staley, an advertising copywriter, had been associated
with the debtor, a clothing and fine goods retailer, since helping to found it
(as The J. Peterman Company) in 1987.
Staley and his firm Staley Fox produced the debtors signature catalogs
from his apartment in New York City. He prepared the copy and artist Robert
Hagel prepared the illustrations. As
the job of producing catalogs grew, Staley started referring out a portion of
the copywriting for each catalog to freelance writers, and Mr. Hagel, after
consulting with Staley and obtaining his approval, referred some of the artwork
to freelance artists. The catalogs were
produced without supervision or control by the debtor. A provision concerning this freedom from
interference was incorporated into the Consulting Agreement referred to below.
The freelance copywriters and artists were generally
paid on a per item basis, at higher than market rates, set by Staley. They would submit bills for their services
and expenses to Staley Fox, and Staley Fox would bill the debtor. In addition, Staley Fox would bill the
debtor for Staleys monthly retainer (referred to as an Agency Fee), and for
expenses he had incurred. Staley Fox
did not provide the debtor with supporting documentation for the amounts
billed, and the debtor did not request such documentation. Staley did not record or report the hours he
worked on advertising services for the debtor.
The invoices submitted by Staley Fox were promptly paid until
immediately before the filing of this Chapter 11 case.
Up until July 23, 1997, Staley was a member of the
debtors Board of Directors. Further,
there was no formal, written agreement between Staley or Staley Fox and the
debtor concerning the advertising services provided prior to that time. In June 1997, two venture capital firms
agreed to invest in the debtor, and in connection therewith required that
Staley enter into a written consulting agreement (the Consulting
Agreement).
Under the Consulting Agreement, Staley agreed to
provide advertising services to the debtor for three years and agreed to a
non-compete clause which prohibited him from providing services to a catalog
retail competitor of the debtor for a year after the termination of the
Consulting Agreement. Staleys fee was
set at $300,000.00 per year, approximately the same fee he had been receiving
since 1994. Staley was also eligible for
certain bonuses under the Consulting Agreement. The Compensation Committee of the Board of Directors never set
Target Goals, as that term is defined in the Consulting Agreement for purposes
of determining any extra compensation which Staley might receive. The bonus plan reflected in the Consulting
Agreement was not outlined and defined by the Compensation Committee.
The investors further required that Staley resign from
the Board of Directors. In connection
therewith, he submitted a letter on July 23, 1997, resigning from the Board
effective that day. He also executed
the signature page of the Consulting Agreement on July 23, 1997 and delivered
this, along with his letter of resignation, by facsimile transmission to the
office of counsel for the investors on the same date.
Staley never had federal, state or local taxes, health
insurance costs or pension contributions deducted from his consulting
fees. He was responsible for paying
taxes on all amounts he received from the debtor. He could not participate in any of the benefits programs
available to principals of the debtor John Peterman, Arnold Cohen and John
Rice. Further, these principals
received salaries without the submission of invoices. Staley never had an office at the debtors headquarters in
Lexington, Kentucky, although he attended meetings there. Until December 1998, the debtor paid $524.20
per month in life insurance premiums for Staley. The debtor did not own the life insurance policy.
The Court first
considers the validity of Staley's claim, and the Committee's objection to
it. As stated in In re Allegheny
Intern., Inc., 954 F.2d 167 (3rd Cir. 1992),
The burden of proof for claims brought in
the bankruptcy court under 11 U.S.C.A. §502(a) rests on different parties at
different times. Initially, the
claimant must allege facts sufficient to support the claim. If the averments in his filed claim meet
this standard of sufficiency, it is 'prima facie' valid. .... In other
words, a claim that alleges facts sufficient to support a legal liability to
the claimant satisfies the claimant's initial obligation to go forward. The burden of going forward then shifts to
the objector to produce evidence sufficient to negate the prima facie
validity of the filed claim. It is
often said that the objector must produce evidence in equal force to the prima
facie case. .... In practice, the objector must produce evidence which, if
believed, would refute at least one of the allegations that is essential to the
claim's legal sufficiency. If the
objector produces sufficient evidence to negate one or more of the sworn facts
in the proof of claim, the burden reverts to the claimant to prove the validity
of the claim by a preponderance of the evidence. .... The burden of persuasion
is always on the claimant. (Cites
omitted.)
At pages 173-174. See also In re Fullmer, 962 F.2d 1463 (10th Cir.
1992). The Committees challenge to the
validity of Staleys claim addresses both an arrearages claim portion in the
amount of $159,095.87 and a termination damages claim portion in the amount of
$1,081,500.00.
As concerns the
arrearages portion, the Committee contends that because invoices attached to
the claim were issued by Staley Fox or to Staley Fox for freelance work, they
provide no evidence of a claim against the debtor by Staley. This contention is based on the fact that
the Consulting Agreement provides that Staleys obligation for services under
this Agreement are personal and may not be assigned. The Consulting Agreement makes no mention of Staley Fox. The Committee argues that this indicates
that the claimant is actually Staley Fox or that Staley attempted to delegate
his duties under the Consulting Agreement to Staley Fox.
This reasoning
ignores the fact that the course of dealing among the parties was that the
debtor never differentiated between Staley and Staley Fox. The invoices for Staleys work and that of
the freelancers were submitted by Staley Fox on its stationery, and the
invoices were always paid. Staley and
Staley Fox were treated as essentially the same entity. The language contained in the Consulting
Agreement appears to speak more to the investors desire to bind Staley to the
debtor exclusively, rather than a concern over or interest in the name on the
bills. The invoices are sufficient to
support the prima facie validity of the arrearages portion of Staleys
claim. The Committee has not adduced
facts sufficient to overcome the presumption of validity by virtue of the
billing by Staley Fox. Staley has
agreed that a $2,700.00 adjustment should be made on this portion of his claim,
and that the total arrearages claim is $156,395.87.
The Committee has
further challenged the evidentiary sufficiency of the termination damages
portion of Staleys claim. The
$21,000.00 Accrued Annual Base Fee has already been determined to be included
in the arrearages claim, and that amount is eliminated from this portion of the
claim. The other amounts set out in
that portion of the claim are the $150,000.00 Accrued Annual Incentive Bonus,
the $10,500.00 Pro Rata Annual Incentive Bonus, the $300,000.00 Target Bonus,
and the $600,000.00 Annual Base Fee (for two years from rejection) are
challenged on the basis that they are not supported by the terms of the
Consulting Agreement.
Section 7.3 of the
Consulting Agreement deals with termination for material breach. It states:
If there is a Termination of Consulting
Service Without Cause or a termination of the consulting services by the
Consultant for Material Breach, the Consultant shall receive the following: (a)
immediately after the Date of Termination in lump-sum in immediately available
funds, an amount equal to the sum of (1) the Consultants Accrued Annual Base
Fee, and (ii) any Accrued Annual Incentive Bonus, and (iii) the Consultants
Prorata Annual Incentive Bonus and (b) beginning one month following the Date
of Termination in equal installment payments over the remainder of the Contract
Term (or if greater, two (2) years), an amount equal to the product of (i) the
number of years (stated as whole and fractional years) remaining in the
Contract Term as of the Termination Date or if greater than two (2) years,
multiplied by (ii) the sum of the Annual Base Fee and the Target Bonus
determined based upon the amount of gross revenues of the Company for the
Fiscal Year immediately preceding the Date of Termination.
Section 1.27 of the Consulting Agreement
defines the term Material Breach. The
pre-petition breach under the Consulting Agreement is set out at Section
1.27(c) as
the failure of the Board to form, elect and
reelect a committee (the Compensation Committee) comprised of John Peterman
(or if John Peterman shall no longer be a member of the Board, then Arnold
Cohen), an Investor Director and upon electing [an] Independent Director in
accordance with 1.27(d) hereof an Independent Director to administer and make
all compensation and benefits determinations under this Agreement including but
not limited to setting Target and Threshold Goals for the Annual Incentive
Bonus in accordance with Section 4.2, or the failure of such Compensation
Committee to so administer this Agreement including, but not limited to setting
Target and Threshold Goals for the Annual Incentive Bonus in accordance with
Section 4.2.
Section 4.2
provides that Staley would be paid the Annual Incentive Bonus for each of the
three calendar years encompassed by the Agreement. Staley was eligible for an Annual Incentive Bonus as a
percentage of his Annual Base Fee (the Target Bonus) depending on the debtors
earnings for the year in question. He
was further eligible for an Annual Incentive Bonus equal to 40% of whatever
the Target Bonus amount was.
Included in the
provisions concerning Material Breach, however, is the following pertinent language:
Notwithstanding the foregoing, no act or
omission by the Company shall constitute Material Breach hereunder unless the
Consultant gives the Company thirty (30) days prior written notice of the act
or omission which constitute (sic) Material Breach and the Company fails to
cure such act or omission within the thirty (30) day period ...
The prepetition breach in this matter is
the failure of the Compensation Committee to set Target and Threshold Goals for
the Annual Incentive Bonus. The bonus
amounts that Staley was eligible for, and that he claims here, were never
set. In order for this omission to be
considered a Material Breach, Staley (the Consultant) had to give the debtor
thirty days notice of the omission, with the debtor then having the opportunity
to cure. There is no evidence in the
record that Staley ever gave the debtor the requisite thirty days notice. Therefore there can be no Material Breach in
regard to amounts claimed as Accrued Annual Incentive Bonus, Pro Rata Annual
Incentive Bonus, and Target Bonus.
As concerns
Staleys claim for an amount equal to twice his Annual Base Fee, or
$600,000.00, the significant event is the debtors postpetition rejection of
the Consulting Agreement. Pursuant to
11 U.S.C. §365(g), the rejection of an executory contract of the debtor
constitutes a breach of that contract.
Pursuant to Section 7.3 of the Consulting Agreement, Staley is entitled
to the amount claimed. The giving of
notice is not at issue here, as rejection of the Consulting Agreement was not a
Material Breach defined in the Consulting Agreement, and it would be pointless
for Staley to be required to give the debtor notice of an action it had chosen
to take in its bankruptcy case. In
summary, the Court concludes that Staley has a valid total claim in the amount
of $756,395.87, the sum of $156,395.87 in arrearages and $600,000.00 in
termination damages.
The next issue to
be determined is whether this total amount is limited by 11 U.S.C. §502(b)(4)
or §502(b)(7), or both. These sections
deal with claims of insiders and employees, respectively. The Court will first address
§502(b)(4). That section provides that:
(b) if such objection to a claim is made,
the court, after notice and a hearing, shall determine the amount of such claim
in lawful currency of the United States as of the date of the filing of the
petition, and shall allow such claim in such amount, except to the extent that
(4) If such claim is for the services of an insider or attorney of the
debtor, such claim exceeds the reasonable value of such services.
An individuals status as an insider was
dealt with by the court in Allegheny Intern., supra. There the court stated:
Courts have construed the definition of an insider flexibly. An insider has been defined as any entity or
person with a sufficiently close relationship with the debtor that his conduct
is made subject to closer scrutiny than those dealing at arms length with the
debtor. In re Acme-Dunham, Inc., 50
B.R. 734, 739 (D.C.Me. 1985).
[The debtor] argues that because [the claimant] was an officer and
director of the debtor, he was an insider. [The claimant] asserts, however,
that because 11 U.S.C. §502(b) uses the language as of the date of the filing
of the petition, that this is the appropriate time for deciding if one is an
insider. He maintains that since he was
not an insider when [the debtor] went into bankruptcy, he is not an insider for
the purposes of 11 U.S.C. §502(b)(4).
The phrase as of the date of the filing of the petition, however,
modifies the amount of the claim.
Further, insider in this context relates to the services performed. The contract services were services of an
insider.
This court has previously decided that the relevant time for determining
ones status as an insider, under 11 U.S.C. §502(b)(4), is the time services
were rendered and when the compensation contracts for such services were
formed. (Cite omitted.)
In re Allegheny Intern., Inc., 158 B.R. at
339. Staley was a founder of The J.
Peterman Company. He considered himself
the voice and conscience of the company.
He produced the signature catalogs that were the foundation of the
business, and had unfettered control over every aspect of their production. He sat on the Board of Directors until 1997,
when the investors required that he be removed. At the same time they required that he enter into a written
Consulting Agreement, to guarantee that his crucial services remained devoted
to the debtor. It is clear that he was
an insider, and as such his claims are subject to the terms of 11 U.S.C.
§502(b)(4).
Staley further
argues, however, that his claim should be allowed in its entirety as
reasonable, even if §502(b)(4) applies.
The Committee contends that Staleys entire termination damage claim
should be disallowed, as well as $44,323.79 of the arrearage claim,
representing Staleys January 1999 Agency Fee and January 1999 retainers for
Robert Hagel and a copywriter, Amy Bloom.
This Court disagrees. As
concerns the determination of the reasonable value of the claim, the court in
In re Tamarack Trail Co., 30 B.R. 99 (Bkrtcy.S.D.Ohio 1983), stated:
As to a claim for services of an insider
the statute enjoins us not to allow such claims which exceed the reasonable
value of any services. 11 U.S.C.
§507(b)(5) (now §502(b)(4)). We
conceive the significance of this statutory provision for present purposes to
be that it creates a burden which a claimant must bear in order to succeed in
his claim. The burden which must be
borne is that claimant prove that the claim asserted is reasonable value for
services rendered.
At 101.
This reasoning speaks to what this Court believes is the intent of
§502(b)(4), i.e., that the claims of insiders are to be subjected to intense
scrutiny, not that an insider should never have a claim for future damages
under an employment or other contract for his services. The Court concludes that the reasonable
value of Staleys services pursuant to 11 U.S.C. §502(b)(4) is $756,395.87.
Next the Court
considers whether Staleys claim is limited by 11 U.S.C. §502(b)(7). This section provides for the payment of a
claim under §502(b) except to the extent that
(7) if such claim is the claim of an
employee for damages resulting from the termination of an employment contract,
such claim exceeds
(A) the compensation provided by such contract, without acceleration,
for one year following the earlier of
(i) the date of the filing of the petition; or
(ii) the date on which the employer directed the employee to terminate,
or such employee terminated, performance under such contract; plus
(B) any unpaid compensation due under such contract without
acceleration, on the earlier of such dates.
The Committee contends that Staley was an
employee for purposes of this statute, and that the Consulting Agreement was an
employment contract. In support of its
position the Committee cites In re Wilson Foods Corp., 182 B.R. 278
(Bkrtcy.D.Kan. 1995), in which a claimant alleged that she was an independent
contractor whose contract to provide consulting services did not make her an
employee of the debtor. The court
disagreed.
The Wilson Foods
court stated that the purpose of §502(b)(7) is to
strike a fair balance between
claimant-creditors who have secured long-term contracts resulting in large
unsecured claims and the claims of numerous other unsecured creditors seeking
pro rata payment from the all-too-often meager assets left for unsecured
creditor distribution.
At 281.
The court went on to analyze whether the claimant fell into the camp of
those who had secured long-term contracts resulting in large unsecured
claims. It determined that she
did.
The claimant had
been a party to a three year Employment Agreement with the debtor, with the
possibility of renewal for a similar term (the Employment Period). When the Employment Period was not renewed,
the Employment Agreement provided that she was to serve as a consultant for a
period of seven years (the Consulting Period). While serving as a consultant she received yearly consulting fees
payable monthly, and had to estimate and pay her own taxes. She had no authority to direct the work of
any employee, and her consulting services were not subject to control or
direction. She was subject to
non-disclosure and non-compete clauses, and the Employment Agreement was only
assignable under certain circumstances.
In re Wilson Foods Corp., 182 B.R. at 279-280.
In response to the
claimants argument that it was the degree of control which the debtor
exercised over her activities which determined her status as an employee or an
independent contractor, the court stated that while this was a determinative
factor under agency principles, it was irrelevant for purposes of
§502(b)(7). The court found that
there is no indication that [the claimant]
and Wilson Foods had anything but an employment contract governing what
amounted to an employment relationship.
The terms contained in the written contract, delineated an Employment
Agreement, evidenced an employment relationship between [the claimant] and the
debtor. ....
Moreover, [the claimants] consulting contract was contained in the same
Employment Agreement that provided for her executive vice-presidency,
justifying the inference that [her] influence or expertise was considerable
enough that she was able to secure a consulting contract at the same time as
her executive vice presidency contract.
At 283.
While this Court does not agree that control over activities is a
non-factor in §502(b)(7) considerations, the critical difference between the
claimant in Wilson Foods and Staley, the claimant here, is that her
consulting contract was part and parcel of the employment contract which
she, at least by inference, had a role in negotiating.
Staley never
entered into an employment contract with the debtor. In fact, he never had any kind of written agreement with the
debtor until the investors insisted that he enter into the Consulting
Agreement. It was presented to him as a
fait accompli; he did not seek such an agreement and had no part in its
creation or negotiation. Further,
Staley runs his own business, a business which provided essential services to
the debtor. These services were
provided from a location hundreds of miles away from the debtor, totally under
Staleys control. He was not paid a
salary. He was guaranteed a certain
yearly fee, but had to submit invoices for payment for services provided and
expenses incurred. He was not eligible
for any of the benefits available to high-ranking employees such as John
Peterman, John Rice, and Arnold Cohen.
This Court is of the opinion that the debtor had a somewhat unusual,
almost symbiotic relationship with Staley, but that he always operated as an
independent contractor and was not an employee in any sense of the word. His claim is therefore not subject to the
limitations of 11 U.S.C. §502(b)(7).
In consideration of
all of the foregoing it is the opinion of this Court that Donald Staleys claim
should be allowed in the amount of $756,395.87. An order in conformity with this opinion will be entered
separately.
Dated:
By the Court -
Judge William S. Howard
Copies
to:
W.
Timothy Miller, Esq.
Edward
M. Fox, Esq.
Randy
D. Shaw, Esq.
Gregory
D. Pavey, Esq.
Frank
T. Becker, Esq.
U.S.
Trustee