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Case 12-47045
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UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF MISOURI
EASTERN DIVISION
In re:
)
C1apter 11
)
Cse No. 12-47045-705
OTOLOGICS, L.L.C.,
Debtor,
)
)
)
Hearing Date: May 27, 2015
HaringTime: 10:00a.m.
)
FINAL APPLICATION FOR ALLOWANCE OF FEES AND EXPENSES
FILED BY ROBERTS & OLIVIA, LLC, SPECIAL fOUNSEL FOR THE DEBTOR
(Summary of Request)
Roberts & Olivia, LLC
Name of Applicant
Approved or an interim basis on July 25,
2012 and on a final basis on August 15,
2012
Date of Approval of
Employment
Identity of Party Represented
Special Counsel for Debtor
November 1 2012 through Date of Final
Application
Time Period Requested
Amount of Fees Requested
.
$3,000
Amount of Expenses
Requested
None
Previous Fee Orders
Interim fees vere approved on January 2,
2013 for $2,843.75 in and expenses for
$161.30.
Interim or Final Application
Final
COMES NOW Roberts & Olivia, LLC ("RO"), ttorneys for Otologics, L.L.C. (the
"Debtor") pursuant to 11 U.S.C.
6136297.2
§
328, 330 and 331, knd files this
Final Application for
Case 12-47045
Allowance
of Fees
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and Expenses Filed by Roberts & Olivia, LLC Special Counsel for the Debtor
(the "RO Fee Application") (Dkt. No. 59). In support thereo RO states as follows:
JURISDICTION
1.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. §
1334 and
157 and E.D. Mo. L.R. 81-9.01(B)(1).
BACKGROUND
2.
On July 23, 2012 (the "Petition Date"), Detor filed its Voluntary Petition for
Relief under Chapter 11 of Title 11 of the United States
ode (the "Bankruptcy Code"). The
Debtor is operating its businesses and managing its propertis as a debtor-in-possession pursuant
to § 1107(a) and 1108 of the Bankruptcy Code.
3.
On July 23, 2012, the Debtor filed an Applliation for Employment of Roberts &
Olivia, LLC as Special Counsel for the Debtor (the "RO Employment Application"). On July
25, 2012, the Court approved the retention of RO on an interim basis and on August 15, 2012, it
approved the retention on a final basis on August 15, 2012 (he "Retention Order").
ROBERTS & OLIVIA, LLC ATTORNEYS' rEES AND EXPENSES
4.
On or about November 20, 2012, the Appliant filed a First Interim Application
for Allowance of Fees and expenses Filed by Roberts & Olivia, LLC, Special Counsel for the
Debtor (the "Interim Application") covering the period July 23, 2012 through October 31, 2012
(the "Interim Application Period"). In the First Interim Aplication, RO requested $21,843.75 in
fees and $161.30 in expenses. On January 2, 2013, the
ourt entered an order approving the
application, authorizing and directing Debtor to pay to RO the remaining unpaid portion of the
approved fees and expenses (the "First Interim Order").
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This Final Fee Application covers the period from November 1, 2012 through the
date of this application (the "Compensation Period").
The Applicant seeks allowance of an
additional $3,000 in attorneys' fees incurred after the Interim Application Fee Period but before
the date of this Application.
6.
Applicant maintains detailed daily records in the ordinary course of its business.
These time records are prepared contemporaneously with the rendition of services to the client.
These time records describe the person performing the services, the date services are rendered, a
detailed description of services and the length of time spent delivering those services. These
time records are kept in increments of tenths of an hour.
7.
The services provided by Applicant have bedn actual and necessary. Reasonable
compensation for such services based on the time, the nature, the extent and value of such
services, and the costs of such services, other than in a dase under this Title, is $24,843.75.
Copies of the invoices for the period November 1, 2012 through the date of this Application are
attached hereto as Exhibit A and incorporated herein by this reference.'
8.
During the Compensation Period, RO's representation focused on drafting and
finalizing a contract manufacturing agreement between Debtor and Cochlear Limited, the
purchaser of substantially all of the Debtor's assets.
INFORMATION REQUIRED BY LOCAL RULES
9.
fee
L.B.R. 20 16-1(B) and the court's Procedures Manual requires that all professional
applications analyze the twelve factors (the "Johnson Factors") for allowance of
compensation set forth in Johnson v. Georgia Highway Express, 388 F.2d 714 (5th Cir. 1974).
See also P.A. Novelly v. Palans (In re Apex Oil Co.), 960 F.d 728 (8th Cir. 1992); Chamberlain
Copies of the invoices for the Interim Application Period were attached to the Interim Application.
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v. Kula (In re Kula), 213 B.R. 729, 736-39 (B.A.P. 8th Cir, 1997); In re Grimes, 115 B.R. 639,
642-43 (Bankr. D.S.D. 1990).
The Johnson Factors are as follows:
10.
a.
The time and labor required. RO has described in detail the time spent and has
included complete descriptions of the tasks performed.
b.
The novelty and difficulty of the questions. This representation was for consulting
the Debtor in during the drafting and negotiation of a contract manufacturing
agreement with the purchaser of substantially all of the Debtor's assets.
c.
The skill required to perform le.-al services properly. RO believes that its lawyers
have demonstrated consistently the skill levels necessary for the vigorous
representation of the Debtor's interests.
d.
The preclusion of employment due to acceptance of/he case. Acceptance of this
case did not preclude other employment.
e.
The customary fee. The rates charged by RO in this case are commensurate with
rates it charges similar clients in similar matters.
f.
Whether the fee is fixed or contin.gent. The fees requested herein are based on
neither a fixed nor contingent fee basis.
g.
Time limitations imposed by the client or the circumstances. This case poses the
normal time pressures inherent in any Chapter 11 case.
h.
The amount involved and the results obtained. RO submits that the fees requested
are appropriate.
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The experience, reputation, and ability
of the
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attorneys. RO represents clients in
the purchase and sale of businesses and other corporate matters, including medical
device companies.
c.
The undesirability of the case. This is not an undesirable case.
d.
The nature and len,gth
of the
professional relationship with the client. RO's
relationship with the Debtor dates to October 1, 2009 and since that time RO has
represented the Debtor in connection with certain of its transactional legal
matters. The attorneys at RO represented Debtor prior to October 1, 2009 at their
predecessor firm, Hogan & Hartson, LLP.
c.
Awards in similar cases. This request is commensurate with requests made in
similar cases in this District.
LOCAL COMPENSATION RULES AND U.S. TRUSTEE GUIDELINES
II.
On January 30, 1996, the Office of the United States Trustee promulgated
guidelines for compensation and reimbursement of expenses from a bankruptcy estate (the "U.S.
Trustee Guidelines"). Reprinted at 28 C.F.R. Part 58,
endix. The information requested
under the U.S. Trustee Guidelines not otherwise disclosed herein is as follows:
Review of Application
This application is being sent to the Debtor and
other parties simultaneously with its filing.
Status of Plan
No plan is on file in this case.
Monthly Operating Reports
Debtor last filed an operating report for
February, 2015.
Quarterly Fees
Debtor has made all quarterly fee payments
due to the Office of the U.S. Trustee.
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Unpaid Administrative Expenses
None, othei than professional fees and ordinary
course of husiness liabilities.
Cash on Hand
The Applicant has already been paid all but
$600 of the requested fees and expenses.
Debtor has access to sufficient unencumbered
funds to pay the remaining amount due.
Unencumbered Funds
There are ro secured creditors holding liens on
the cash on hand.
WHEREFORE, RO respectfully requests this Court to allow attorneys' fees for the entire
Compensation Period in the amount of $24,843.75 and expenses in the amount of $161.30,
including $3,000 in attorneys' fees incurred after the Interin Application Period, authorizing and
directing Debtor to pay all allowed fees and expenses that have not been paid to date under the
local rules and for such other and further relief as is just and equitable.
Dated: May 1, 2015
Respectfully Submitted,
THOMPSON COBURN LLP
By: /s/ David A. WarfIeld
David A. Warfield (EDM0 # 34288M0)
[email protected]
One US Bank ilaza
St. Louis, MO'63 101
Ph. 314.552.6:000
Fax: 314.552.7000
Attorneys for Otologics, LLC
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Certificate of Service
The undersigned certifies that on May 1, 2015, a true and accurate copy of the foregoing
Final Application for Allowance of Fees and Expenses Filel by Roberts & Olivia, LLC Special
Counsel for the Debtor was served on all parties receiving iotice through the Court's CM/ECF
system.
/s/ David A. War field
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EXHIBIT A
Invoices
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Exhibit A-
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Exhibit A-
Roberts & Olivia, LLC
2060 Broadway, Suite 250
Boulder, CO 80302
Invoice submitted to:
Otologics, LLC
Attention: Jose H. Bedoya, Chief Executive
Officer
5445 Airport Boulevard
Boulder, CO 80301
[email protected]
vailebotologics.com
August 01, 2013
Invoice #1019
Professional Services
Hrs/Rate
7/12/2013 KMO Review
Review draft of CMA Waiver Letter; phone conference with J. Bedoya
regarding same
For professional services rendered
0.50
375.00/hr
0.50
Amount
187.50
$187.50
Previous balance
$637.50
Total payments
($75.00)
Balance due
$750.00
Current
187.50
30 Days
131.25
60 Days
262.50
90 Days
0.00
120 Days
168.75
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Exhibit A-
Roberts & OlMa, LLC
2060 Broadway, Suite 250
Boulder, Co 80302
Invoice submitted to:
Otologics, LLC
Attention: Jose H. Bedoya, Chief Executive
Officer
5445 Airport Boulevard
Boulder, CO 80301
[email protected]
vailebotologics.com
July 01, 2013
Invoice #998
Professional Services
Hrs/Rate
6/27/2013 KMO Phone cell from client
Review changes to Waiver Letter with Cochlear; phone conference with
J. Bedoya regarding same
For professional services rendered
0.25
Previous balance
93.75
$93.75
$993.75
Total payments
($450.00)
Balance due
Current
206.25
0.25
375.00/hr
Amount
$637.50
30 Days
262.50
60 Days
0.00
90 Days
0.00
120 Days
168.75
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Exhibit A-
Roberts & Olivia, LLC
2060 Broadway, Suite 250
Boulder, CO 80302
Invoice submitted to:
Otologics, LLC
Attention: Jose H. Bedoya, Chief Executive
Officer
5445 Airport Boulevard
Boulder, CO 80301
[email protected]
[email protected]
June 03, 2013
Invoice #975
Professional Services
Hrs/Rate
5/1/2013 KMO Review
Review revisions to Waiver Letter for Contract Manufacturing Agreement
5/3/2013 KMO Phone call from client
Phone conference with J. Bedoya regarding Contract Manufacturing
Agreement Waiver; draft response to J. Marcil regarding same
Amount
0.25
375.00/hr
93.75
0.50
187.50
375.00/hr
5/9/2013 KMO Phone call from client
Phone conference with J. Bedoya regarding finalizing Contract
Manufacturing Agreement; phone conference with P. Ramos regarding
insurance matters; draft correspondence regarding same
0.50
375.00/hr
187.50
5/10/2013 KMO Phone call from client
Phone conference with D. Warfield regarding court approval of Waiver
letter; draft correspondence regarding same
0.25
375.00/hr
93.75
For professional services rendered
1.50
Previous balance
$1,481.25
Total payments
($1,050.00)
Balance due
Current
825.00
$562.50
$993.75
30 Days
0.00
60 Days
0.00
90 Days
0.00
120 Days
168.75
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Exhibit A-
Roberts & Olivia, LLC
2060 Broadway, Suite 250
Boulder, CO 80302
Invoice submitted to:
Otologics, LLC
Attention: Jose H. Bedoya, Chief Executive
Officer
5445 Airport Boulevard
Boulder, CO 80301
[email protected]
[email protected]
May 02, 2013
Invoice #951
Professional Services
Hrs/Rate
Amount
0.75
281.25
4/17/2013 KMO Conference with client
Conference with J. Bedoya regarding modifications to Contract
Manufacturing Agreement
375.00/hr
4/19/2013 KMO Conference with client
Conference with J. Bedoya regarding modifications to Contract
Manufacturing Agreement
375.00/hr
4/23/2013 KMO review and revise documents
Review and revise Waiver Letter for Contract Manufacturing Agreement
0.25
0.75
93.75
281.25
375.00/hr
4/24/2013 KMO Phone call from client
Phone conference with J. Bedoya regarding Waiver Letter for Contract
Manufacturing Agreement; revise same
0.75
375.00/hr
281.25
4/30/2013 KMO Phone call from client
Phone conferences with J. Bedoya and P. Ramos regarding insurance
requirements for Contract Manufacturing Agreement and related matters
1.00
375.00
375.00/hr
For professional services rendered
Previous balance
3.50
$1,312.50
$5,212.50
Total payments
($5,043.75)
Balance due
$1481.25
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Otologics, LLC
Exhibit A-
Page
Current
1312.50
30 Days
0.00
60 Days
0.00
90 Days
0.00
120 Days
168.75
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Exhibit A-
Roberts & Olivia, LLC
2060 Broadway, Suite 250
Boulder, CO 80302
Invoice submitted to:
Otologics, LLC
Attention: Jose H. Bedoya, Chief Executive
Officer
5445 Airport Boulevard
Boulder, CO 80301
bedoyajotoIogiCS.com
[email protected]
December03, 2012
Invoice #801
Professional Services
11/13/2012 KMO Conference with client
Review and revise Transition Services Agreement and Contract
Manufacturing Agreement; conference with J. Bedoya regarding same
Hrs/Rate
Amount
1.25
468.75
375.00/hr
0.50
11/18/2012 KMO review and revise documents
Review and revise Motion to Approve Contract Manufacturing Agreement
375.00/hr
11/21/2012 KMO Phone call froii client
0.50
375.00/hr
Phone conference with D. Warfield and J. Bedoya regarding status of
contracts with Cochlear; phone conference with J. Bedoya regarding
same
187.50
$843.75
For professional services rendered
$18,699.75
Previous balance
($14331.00)
Total payments
$5212.50
Balance due
Current
843.75
187.50
30 Days
3,543.75
60 Days
0.00
90 Days
581.25
120 Day
243.75