Yacovi v. Rubin and Rudman, (1st Cir. 2011)

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Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 10-1673

IN RE: NIR YACOVI,

Debtor.

NIR YACOVI,

Appellant,

v.

RUBIN AND RUDMAN, L.L.P.; PETER B. FINN;

HAROLD B. MURPHY, Chapter 7 Trustee,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Lynch, Chief Judge,

Souter, Associate Justice,

[1]

and Stahl, Circuit Judge.

    Valeriano Diviacchi on brief for appellant.

    David C. Fixler and Rubin and Rudman, L.L.P. on brief for

appellees Rubin and Rudman L.L.P. and Peter B. Finn.

    Harold B. Murphy, Christian J. Urbano and Hanify & King, P.C.,

on brief for trustee appellee Murphy.

 

March 18, 2011

 

         STAHL, Circuit Judge. Nir Yacovi, the debtor in a

Chapter 7 bankruptcy, appeals a decision approving the settlement

of legal claims held by his estate. Yacovi also asserts that the

bankruptcy court should have granted his motion to abandon those

claims. We affirm.

I. Facts & Background

         On October 5, 2005, Yacovi resigned from his position

with URS Staffing Corporation and/or United Revenue Service, Inc.

(collectively "URS") to start his own tax preparation business,

IBTS, Inc., which was to provide services similar to those offered

by his former employer. Shortly thereafter, URS accused Yacovi of

violating the employment agreement he had entered into with URS,

and Yacovi retained Peter Finn, an attorney at Rubin and Rudman,

L.L.P. (collectively "R & R"), to advise him about this contractual

issue.

         On October 3, 2006, an arbitrator concluded that Yacovi

had in fact breached the employment agreement and awarded URS

$226,000.

[2]

Although the arbitrator did not find that Yacovi was

prohibited from competing with URS, he concluded that Yacovi

nonetheless violated the agreement by removing, and not timely

returning after his resignation, documents from URS (including

lists of URS's clients and the fees they paid); retaining the fees

generated from some tax and financial services he provided while

employed at URS; soliciting URS's clients and prospective clients

for his own benefit prior to resigning; and, after leaving URS,

using his knowledge of URS's clients' identities and URS's rates

(that is, URS confidential information) to solicit business for

IBTS. The arbitrator also noted that Yacovi's account of some

facts lacked credibility.Within weeks of the arbitration decision, Yacovi filed a

voluntary petition for Chapter 7 bankruptcy relief, and Harold B.

Murphy ("Trustee") of Hanify & King, P.C. ("H & K") was appointed

as the trustee. Yacovi's petition listed R & R as holding a claim

for legal fees and URS as holding a $226,000 claim for the

arbitration award. In early 2007, URS filed a complaint asserting

that the arbitration award was non-dischargeable in Yacovi's

bankruptcy because it was the result of fraud as a fiduciary,

embezzlement, and/or larceny. On March 13, 2008, the bankruptcy

court granted URS's motion for summary judgment on this issue. The

following year, the court granted Yacovi a discharge,

[3]

relieved the

Trustee of his responsibilities, and closed the case.

         However, on May 13, 2009, exactly one month after the

case was closed, Yacovi filed a motion to reopen the bankruptcy

proceedings to list various legal claims against R & R

(collectively "malpractice claims")

[4]

as additional assets of the

estate. Specifically, Yacovi alleged that R & R had advised him

that, because the employment agreement lacked a non-compete clause

covering his post-employment activity, he could operate IBTS and

service URS's clients. In a complaint he sought to pursue against

R & R, Yacovi contended that a lawyer with appropriate experience

exercising the requisite standard of care, "would have advised

[him] . . . that any services provided to clients of [URS] would

most definitely result in expensive litigation . . . [and] that

there was a very real possibility in such litigation that there may

be an adverse finding against him." Yacovi moved for the

bankruptcy court to abandon the malpractice claims or, in the

alternative, "administer this asset to allow him to seek a recovery

of [the arbitration award]."

         On June 24, 2009, the bankruptcy court granted Yacovi's

motion to reopen, but denied his motion to abandon without

prejudice. Accordingly, the Trustee began investigating the

malpractice claims and requested all relevant documents in Yacovi's

possession. The Trustee also successfully applied to the

bankruptcy court to have H & K employed as his own counsel to,

among other things, advise on the merits of the malpractice claims.

         On September 29, 2009, the Trustee moved for approval of

a settlement he had reached with R & R. In exchange for the estate

releasing all claims against R & R, the settlement required R & R

to pay $25,000 and waive any claims it may have had against the

estate. In his motion to approve, the Trustee asserted that his

investigation of the malpractice claims consisted of the following:

discussing the claims and defenses with Yacovi's counsel and with

R & R, reviewing the arbitration opinion (which included a detailed

analysis of the employment agreement), reviewing filings in URS's

state court petition to confirm the arbitration award, reviewing

Yacovi's proposed complaint against R & R, and reviewing Yacovi's

letter demanding relief from R & R for the purported malpractice.

Based on this work, the Trustee believed that there was a "real

risk" that litigating the malpractice claims would be unsuccessful,

and therefore concluded that the proposed settlement was in the

best interest of the estate. The Trustee explained that the

arbitrator had found that the employment agreement did not prohibit

Yacovi from competing with URS, and therefore it would be difficult

to prove that advising Yacovi about IBTS's ability to compete with

URS constituted negligence or was the cause of the arbitration

award. Moreover, the Trustee found "little support for the

allegation" that R & R told Yacovi that he could solicit URS's

customers without running afoul of the agreement.

         Yacovi opposed the motion to approve, arguing that the

Trustee's investigation was inadequate and consisted primarily of

discussions with R & R. Although acknowledging that the Trustee

procured the relevant documents, Yacovi's counsel swore in an

affidavit that he was never consulted by the Trustee about the

merits of the malpractice claims. Yacovi's counsel also expressed

his willingness to pursue the claims on a contingency basis with a

percentage allocated to the estate, which was an offer he had

previously proposed in conversations with the Trustee.

         At the conclusion of a hearing held on October 14, 2009,

the bankruptcy court granted the motion to approve, explaining its

decision with only a few sentences:

It's always a tough call when you've got a

disputed piece of litigation that the Trustee

thinks is not worth pursuing and somebody else

thinks is worth pursuing. My obligation

generally speaking is to rely on the expertise

of the Trustee. In this particular matter I

have no reason to doubt the amount of due

diligence Mr. Murphy performed in evaluating

the claim. I am going to grant the motion.

The district court subsequently affirmed. See In re Yacovi, No.

09-11988, 2010 WL 2106171, at *3 (D. Mass. May 24, 2010).

II. Discussion

A.       The Bankruptcy Court Did Not Abuse Its Discretion in          Approving the Settlement

         "Bankruptcy court orders endorsing settlements are

reviewed for manifest abuse of discretion."

[5]

Hicks, Muse & Co. v.

Brandt (In re Healthco Int'l, Inc.), 136 F.3d 45, 50 n.5 (1st Cir.

1998). In deciding whether to approve a settlement pursuant to

Federal Rule of Bankruptcy Procedure 9019, "The bankruptcy court

essentially is expected to assess and balance the value of the

claims being compromised against the value of the compromise

proposal." Id. at 50 (internal marks omitted) (quoting Jeffrey v.

Desmond, 70 F.3d 183, 185 (1st Cir. 1995)). The factors the

bankruptcy court should consider include:

(i) the probability of success in the

litigation being compromised; (ii) the

difficulties, if any, to be encountered in the

matter of collection; (iii) the complexity of

the litigation involved, and the expense,

inconvenience and delay attending it; and,

(iv) the paramount interest of the creditors

and a proper deference to their reasonable

views in the premise.

 

Jeffrey, 70 F.3d at 185; accord Ars Brook, L.L.C. v. Jalbert (In re

Servisense.com, Inc.), 382 F.3d 68, 72 (1st Cir. 2004).

         In addition, "[T]he trustee's judgment is to be accorded

some deference." In re Healthco Int'l, Inc., 136 F.3d at 50 n.5

(internal marks omitted) (quoting Hill v. Burdick (In re Moorhead

Corp.), 208 B.R. 87, 89 (B.A.P. 1st Cir. 1997)). Moreover,

"'compromises are favored in bankruptcy.'" In re Servisense.com,

Inc., 382 F.3d at 71 (quoting LeBlanc v. Salem (In re Mailman Steam

Carpet Cleaning Corp.), 212 F.3d 632, 635 (1st Cir. 2000)). In

short, "'The responsibility of the bankruptcy judge, and ours on

review, is . . . to . . . see whether the settlement falls below

the lowest point in the range of reasonableness.'" Id. at 71-72

(quoting In re Healthco Int'l, Inc., 136 F.3d at 51).

         We conclude that the settlement in this case fell within

the "range of reasonableness" and the bankruptcy court did not

abuse its discretion in approving it. To be sure, $25,000 amounted

to only a fraction of the damages

[6]

that Yacovi alleges resulted

from what he claims was R & R's malpractice. Nonetheless, the

settlement constituted a "definitive, concrete and immediate

benefit[]" that the Trustee reasonably concluded outweighed the

uncertainty and delay of litigation. See In re Healthco Int'l,

Inc., 136 F.3d at 50. The Trustee was appropriately apprehensive

about litigating the malpractice claims in light of (1) the fact

that the arbitrator did not find that the employment agreement

prohibited Yacovi from competing with URS, (2) the arbitrator's

judgment that Yacovi's account of some relevant facts lacked

credibility, and (3) the dearth of evidence that R & R actually

advised Yacovi that he could solicit URS's clients without any

legal repercussions. Although the Trustee made this decision using

counsel from his own law firm, there is no indication that H & K

offered deficient advice or otherwise undermined the Trustee's

ability to analyze the malpractice claims.

         We are mindful of our instruction that a court approving

a settlement must set forth its rationale "in sufficient detail

[such] that a reviewing court [can] distinguish it from 'mere

boilerplate approval' of the trustee's suggestions." In re Boston

& Providence R.R. Corp., 673 F.2d 11, 12 (1st Cir. 1982) (quoting

Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc.

v. Anderson, 390 U.S. 414, 434 (1968)); see also Jeremiah v.

Richardson, 148 F.3d 17, 23 (1st Cir. 1998) ("The court's

consideration . . . should demonstrate whether the compromise is

fair and equitable, and whether the claim the debtor is giving up

is outweighed by the advantage to the debtor's estate."). In this

case, the bankruptcy court offered only four sentences to explain

its decision. Providing a more detailed statement would have been

preferable, and under different circumstances a somewhat succinct

explanation might prevent affirmance. However, where, as here, an

experienced trustee conducts an adequate investigation of the

claims and offers a satisfactory explanation for his settlement

decision, the record supports the reasonableness of that decision,

and the bankruptcy court receives briefing on the motion and holds

a hearing, a cursory explanation, in and of itself, does not rise

to the level of an abuse of discretion.

[7]

Cf. In re Boston &

Providence R.R. Corp., 673 F.2d at 12-13 (remanding where

"trustee's petition and supporting affidavit gave only the most

cursory description and conclusory evaluation" and the lower

court's "findings and order do not demonstrate an independent

evaluation"). Indeed, in the very case this court relied on in

issuing its caution against "boilerplate approval" of settlements,

the Supreme Court acknowledged:

If . . . the record contained adequate facts

to support the decision of the trial court to

approve the proposed compromises, a reviewing

court would be properly reluctant to attack

that action solely because the court failed

adequately to set forth its reasons or the

evidence on which they were based. The

deficiency in this case, however, is not a

merely formal one.

Anderson, 390 U.S. at 437.

B.       Yacovi Waived His Challenge to the Denial of the Motion          to Abandon

         In addition to his objection to the settlement, Yacovi

contends that "equity demands that the malpractice claims be

abandoned."

         On June 24, 2009, the bankruptcy court denied, without

prejudice, Yacovi's motion to abandon. Over three months later, on

September 29, the Trustee filed a motion to approve the settlement.

Yacovi filed an opposition brief to this motion, which included two

sentences again requesting that the malpractice claims be

abandoned.

[8]

After a hearing on October 14, 2009, the bankruptcy

court granted the Trustee's motion to approve. The next day,

October 15, Yacovi filed a notice of appeal, pursuant to Federal

Rule of Bankruptcy Procedure 8002(a), characterizing his appeal to

the district court as "from the Order entered in this Action on 14

October 2009 granting the Motion filed by the Trustee to Approve

Settlement." Also on October 15, Yacovi filed a Statement of

Issues and Designation of Record on Appeal ("Statement of Issues on

Appeal"). See Fed. R. Bankr. Pro. 8006. This filing failed to

mention abandonment and framed the appellate issue solely as

"[w]hether the Court erred in granting the Motion filed by the

Trustee to Approve [S]ettlement." On appeal, the district court

declined to address Yacovi's abandonment argument, saying the

following:

As set forth in the Debtor's Statement of

Issues, the only question on appeal is whether

the Bankruptcy Court erred in allowing the

Trustee's Motion to Approve . . . . To the

extent that the Debtor also seeks to reargue

his Motion to Abandon the Malpractice Claim,

that issue is not properly before this court.

On June 24, 2009, the Bankruptcy Court denied

the Debtor's Motion to Abandon . . . . The

Debtor did not appeal that Order, and the time

to appeal it has since passed.

In re Yacovi, 2010 WL 2106171, *3.

         There is a circuit split about whether the failure to

list an issue in the statement of issues on appeal pursuant to

Bankruptcy Rule 8006 results in a waiver of that issue. Compare

Zimmerman v. Jenkins (In re GGM, P.C.), 165 F.3d 1026, 1032 (5th

Cir. 1999) ("We . . . hold that, even if an issue is argued in the

bankruptcy court and ruled on by that court, it is not preserved

for appeal under Bankruptcy Rule 8006 unless the appellant includes

the issue in its statement of issues on appeal."), and Snap-On

Tools, Inc. v. Freeman (In re Freeman), 956 F.2d 252, 255 (11th

Cir. 1992) ("An issue that is not listed pursuant to [Bankruptcy

Rule 8006] and is not inferable from the issues that are listed is

deemed waived and will not be considered on appeal."), with Office

of the U.S. Tr. v. Hayes (In re Bishop, Baldwin, Rewald, Dillingham

& Wong, Inc.), 104 F.3d 1147, 1148 (9th Cir. 1997) (per curiam)

("We hold that Bankruptcy Rule 8006 does not limit a party's

ability to appeal from a bankruptcy court's judgment. This

document, filed with the trial court clerk, does not impact upon

issue statements required by the court of appeals.")

         We do not state a position on this circuit split. In his

briefing to this court, Yacovi has presented neither adequate

argument nor any citation to caselaw or even to a learned treatise.

As a result, he has waived the issue in this court.

III. Conclusion

         For the foregoing reasons, we affirm.

Footnotes

[1] 'Hon. David H. Souter, Associate Justice (Ret.) of the Supreme

Court of the United States, sitting by designation.

[2] 'The agreement specified that "for any CLIENT lost as a result

of Employee's breach of Paragraphs 22 through 26, Employee shall

owe . . . the greater of $2,000.00, or three times the annual gross

income derived from such CLIENT." The arbitrator found that

Yacovi's breach caused URS to lose 113 clients.

[3] 'In November 2006, the Trustee filed a "Report of No

Distribution," explaining that he had "received no property nor

paid any money on account of the estate except exempt property, and

diligent inquiry having been made . . . there is no nonexempt

property available for distribution to creditors."

[4] 'These claims were breach of contract/warranty, legal

malpractice, and negligent infliction of emotional distress.

[5] 'There may be a question as to whether Yacovi has standing to

pursue this appeal. See Spenlinhauer v. O'Donnell, 261 F.3d 113,

117-20 (1st Cir. 2001) (discussing bankruptcy code's limitations on

a debtor's appellate standing). Because neither party briefed

this issue and we can dispose of Yacovi's appeal on the merits, we

do not address the standing question. Greenwood ex rel. Estate of

Greenwood v. N.H. Pub. Utils. Comm'n, 527 F.3d 8, 13 (1st Cir.

2008) ("This court has consistently interpreted [Steel Co. v.

Citizens for a Better Env't, 523 U.S. 83 (1998)] as applying in its

strict form only to issues going to Article III requirements. . .

. [W]here any concerns over jurisdiction are a matter of statutory

interpretation and not an Article III issue, we may bypass the

jurisdictional inquiry." (internal citation omitted)).

[6] 'Yacovi asserts that the damages include the arbitration

award, which has a present value, with interest, in excess of

$300,000.

[7] 'This is not to say that a bankruptcy court's failure to

independently judge a settlement can be saved by a particularly

persuasive explanation or thorough investigation by the trustee.

To the contrary, we remind bankruptcy courts that they are required

to independently analyze and judge all proposed settlements before

granting approval pursuant to Bankruptcy Rule 9019. See Jeremiah,

148 F.3d at 23 (noting "the requirement that the court's judgment

be independent").

[8] 'These sentences read: "[A]bandonment of the malpractice claim

is the only fair, equitable result and is in the best interest of

the estate. THEREFORE, Debtor asks that the Motion be denied and

that given the Trustee's lack of any interest in seriously pursuing

the malpractice claim that it be abandoned."

              Yacovi contends that this passage constituted a cross-motion

to abandon, and therefore the October 14 settlement approval also

"acted as a denial of [that] cross-motion." Even if we accept this

characterization of Yacovi's opposition brief, however, it would

not explain his failure to mention abandonment in his Statement of

Issues on Appeal and it would not materially impact our analysis of

the waiver question. See infra.

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