Opinion
CASE NOS. CV F 13-1640 LJO
02-03-2014
IN RE HUMMER TRANSPORTATION, Debtor, HUME, SMITH, GEDDES, GREEN & SIMMONS, LLP, and NATIONAL CONTINENTAL INSURANCE COMPANY, Appellants, v. ROBERT A. HAWKINS, Chapter 7 Trustee, Appellee.
DECISION ON APPEAL OF
BANKRUPTCY COURT ORDER
(Docs. 11.)
PRELIMINARY STATEMENT TO PARTIES AND COUNSEL
Judges in the Eastern District of California carry the heaviest caseload in the nation, and this Court is unable to devote inordinate time and resources to individual cases and matters. This Court must best manage its voluminous caseload without incurring needless delay and misuse of its limited resources. As such, this Court cannot address all arguments, evidence and matters raised by parties and addresses only the arguments, evidence and matters necessary to reach the decision in this order given the shortage of district judges and staff. The parties and counsel are encouraged to contact United States Senators Dianne Feinstein and Barbara Boxer to address this Court's inability to accommodate the parties and this action.
INTRODUCTION
Appellants Hume, Smith, Geddes, Green & Simmons, LLP ("Hume Smith") and National Continental Insurance Company ("NCI") appeal bankruptcy court approval to employ attorney Kenneth J. Allen ("Mr. Allen") to pursue claims against Hume Smith and NCI for the bankruptcy estate of debtor Hummer Transportation, Inc. ("Hummer"). Mr. Allen represented Kimberly Spoa-Harty and Jesse Harty (collectively the "Hartys") in an underlying personal injury action ("personal injury action") and obtained a $5 million judgment for the Hartys against Hummer, which did not satisfy the judgment. The Hartys filed an involuntary Chapter 7 bankruptcy against Hummer, and appellee Robert Hawkins ("Trustee Hawkins"), trustee for the Hummer bankruptcy estate, obtained bankruptcy court approval to hire Mr. Allen to pursue for the bankruptcy estate malpractice claims against Hume Smith and bad faith claims against NCI, Hummer's insurer. Hume Smith and NCI contend that the bankruptcy court erred to approve Mr. Allen's employment in that Mr. Allen failed to disclose facts as to his representation of the Hartys and financial arrangement with them which create conflicts of interest as to the Hummer bankruptcy. Trustee Hawkins and fellow appellee Kenneth J. Allen Law Group ("firm"), Mr. Allen's law firm, respond that Hume Smith and NCI pursue this appeal to attempt to seek "a tactical advantage" in the malpractice/bad faith action against Hume Smith and NCI and to interfere with Trustee Hawkins' "right to select his own special litigation counsel," Mr. Allen and his firm. For the reasons discussed below, this Court AFFIRMS the bankruptcy court's approval of Mr. Allen to pursue malpractice and bad faith claims for the Hummer bankruptcy estate.
BACKGROUND
The Personal Injury Action
Kimberly Spoa-Harty was seriously injured in a traffic collision with a Hummer tractor-trailer rig. The Hartys, through Mr. Allen, pursued the personal injury action in Indiana state court against Hummer, which was represented by Hume Smith. Default as to liability was entered against Hummer based on inadequate discovery responses. The Hartys offered to settle with Hummer for $750,000 and within liability limits of Hummer's insurance policy. NCI, through Hume Smith, rejected the offer. In 2009, after a trial on damages, the Hartys obtained a $5.1 million judgment against Hummer. NCI, as Hummer's insurer, paid policy limits of $842,000, and the remainder of the judgment remains unsatisfied.
Hummer's Bankruptcy
In September 2011, the Hartys filed an involuntary bankruptcy against Hummer, and Trustee Hawkins was appointed the chapter 7 trustee. The Hartys were the only petitioning creditors. Hummer's assets are limited to a claim against NCI for failure to settle the Hartys' claims within policy limits and a claim against Hume Smith for malpractice in its defense of Hummer in the personal injury action.
In the bankruptcy, the Hattys filed claims exceeding $5.1 million. On August 6, 2013, NCI filed a $1.095 million proof of claim for its payment on the personal injury judgment, uncovered attorney fees and costs, and unpaid insurance premiums.
Applications And Challenges To Employ Mr. Allen
Trustee Hawkins filed his July 13, 2012 application ("first application") to employ Mr. Allen as special counsel to pursue malpractice claims against Hume Smith and bad faith claims against NCI. Trustee Hawkins provided neither Hume Smith nor NCI notice of the first application since neither were creditors of the Hummer bankruptcy estate. Mr. Allen's declaration to support the first application incorrectly stated: "No member of my office has performed any services for the trustee or any creditor or party in interest prior to the date of this Declaration." Hume Smith and NCI note that proper disclosure required revealing that Mr. Allen had represented the Hartys in the personal injury action and to enforce their judgment along with his fee arrangement with the Hartys. The bankruptcy court entered a July 23, 2012 order ("first employment order") to authorize Mr. Allen's employment.
Trustee Hawkins filed an October 5, 2012 application ("second application") to correct payment terms that had been inadvertently misstated in the first employment order. The bankruptcy court's November 10, 2012 order ("second employment order") corrected payment terms but erroneously indicated that Mr. Allen would pursue a malpractice/bad faith action in Fresno County Superior Court.
After approval of his employment, Mr. Allen filed for Trustee Hawkins in Indiana state court a malpractice/bad faith action against Hume Smith and NCI ("malpractice/bad faith action") to allege that Hume Smith and NCI did not cooperate with discovery and did not settle with the Hartys to Hummer's detriment in the personal injury action.
After Hume Smith informed Trustee Hawkins of deficiencies in the first and second employment applications, Trustee Hawkins filed a July 19, 2013 application ("third employment application") to employ Mr. Allen and which Hume Smith and NCI characterize to lack necessary disclosures, including Mr. Allen's fee arrangement with the Hartys. Hume Smith and NCI responded with papers to challenge Mr. Allen's employment given:
1. Non-disclosure of Mr. Allen's long-standing attorney-client relationship with the Hartys;
2. Mr. Allen's status as a Hummer creditor based on his contingency fee arrangement with the Hartys;
3. Mr. Allen's status as a witness in the malpractice/bad faith action against Hume Smith and NCI; and
4. An actual conflict of interest arising from Mr. Allen's representation of the Hartys and Trustee Hawkins.
Trustee Hawkins and the firm characterize as inadvertent failure to disclose Mr. Allen's representation of the Hartys to the bankruptcy court.
Bankruptcy Court Ruling
The bankruptcy court conducted an August 21, 2013 hearing to address Hume Smith's opposition to the third employment application and its motion to set aside Mr. Allen's employment. At the hearing, NCI requested a continuance for discovery into issues as to Mr. Allen's representation of the Hartys and Trustee Hawkins. The bankruptcy court's September 12, 2013 order ("September 12 order") approved the third employment application for Mr. Hawkins, denied Hume Smith's motion to vacate the first and second employment orders, and concluded that:
1. Mr. Allen "has no claim enforceable against Hummer and is disinterested";
2. Mr. Allen's role in the malpractice/bad faith action "is not a disqualifying interest";
3. Mr. Allen's representation of the bankruptcy estate in the malpractice/bad faith action "does not presently conflict with or limit his continued representation of the Hartys;"
4. "There has been no showing that Allen's testimony will be necessary" in the malpractice/bad faith action; and
5. The "interests of the estate are best served by Allen's continued participation" despite Mr. Allen's "failure to disclose his connections" to the Hartys. The September 12 order did not permit discovery into Mr. Allen's representation of the Hartys or Trustee Hawkins.
DISCUSSION
The parties' opening papers make cursory points regarding Hume Smith's and NCI's respective standing to pursue this appeal. This Court need not address the standing issue in that the September 12 order did not address standing, the parties' opening papers provide limited briefing on the issue, and this Court addresses below the merits of this appeal. Moreover, this Court need not address standing issues raised for the first time in Hume Smith and NCI's reply papers. "Reply papers should be limited to matters raised in the opposition papers. It is improper for the moving party to 'shift gears' and introduce new facts or different legal arguments in the reply brief than presented in the moving papers." Clark v. County of Tulare, 755 F.Supp.2d 1075, 1090 (E.D. Cal. 2010). "Parties cannot raise a new issue for the first time in their reply brief." State of Nev. v. Watkins, 914 F.2d 1545, 1560 (9th Cir. 1990). "Arguments not raised by a party in its opening brief are deemed waived." U.S. v. Romm, 455 F.3d 990, 997 (9th Cir. 2006). A "district court need not consider arguments raised for the first time in a reply brief." Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007).
Standard Of Review Of Bankruptcy Court Orders
Hume Smith and NCI contend that the September 12 order erroneously:
1. Failed to find Mr. Allen's actual conflict of interest to represent the Hartys and the Hummer bankruptcy estate and to recognize that Mr. Allen will be a witness in the malpractice/bad faith action where he will take positions inconsistent to those asserted in the personal injury action;
2. Approved Mr. Allen's employment without disclosure of Mr. Allen's fee arrangement with the Hartys and the nature of his current representation of the Hartys; and
3. Denied Hume Smith and NCI to conduct discovery into Mr. Allen's connections to the Hummer bankruptcy estate.
Bankruptcy court orders regarding employment, disqualification, and compensation of professionals are reviewed for an abuse of discretion. In re Thomas, 476 B.R. 579, 584 (N.D. Cal. 2012). An abuse of discretion arises if the bankruptcy court bases its ruling on an erroneous view of the law or clearly erroneous factual findings. In re Thomas, 476 B.R. at 584.
A district court reviews de novo a bankruptcy court's conclusions of law. Paulman v. Gateway Venture Partners III, 163 F.3d 570, 575 (9th Cir. 1998). A bankruptcy court's factual determinations are reviewed for clear error. In re Retz, 606 F.3d 1189, 1196 (9th Cir. 2010); see F.R.Bankr.P. 8013 (bankruptcy judge's findings of fact "shall not be set aside unless clearly erroneous"). "A court's factual determination is clearly erroneous if it is illogical, implausible, or without support in the record." In re Retz, 606 F.3d at 1196.
"Mixed questions of law and fact are reviewed de novo. Such a question arises when the historical facts are established, the rule of law is undisputed, and the issue is whether the facts satisfy the legal rule." In re OTA, 179 B.R. 149, 155 (B.A.P. 9th Cir. 1995). Mixed questions are reviewed "de novo because they require consideration of legal concepts and the exercise of judgment about the values that animate legal principles." In re Bammer, 131 F.3d 788, 792 (9th Cir. 1997).
With these standards in mind, this Court turns to Hume Smith and NCI's challenges to the September 12 order.
Disinterestedness
Hume Smith and NCI argue that Trustee Hawkins failed to demonstrate that Mr. Allen is disinterested to undermine the September 12 order's approval of Mr. Allen.
A chapter 7 trustee is obligated to "collect and reduce to money the property of the estate for which such trustee serves." 11 U.S.C. § 704(a)(1). Subsection (a) of 11 U.S.C. § 327 ("section 327") authorizes a trustee, "with the court's approval, [to] employ one or more attorneys . . . that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee's duties under this title." (Bold added.) 11 U.S.C. § 101(14)(A) defines a "disinterested person" to include a person who "is not a creditor, an equity security holder, or an insider." "A person who is not disinterested as that term is defined in § 101(14) is disqualified from acting as a professional for the estate." In re Capitol Metals Co., Inc., 228 B.R. 724, 726-727 (9th Cir. BAP1998).
Section 327 generally "imposes the 'disinterested' requirement on all general and special counsel employed under that section . . ." In re Maximus Computers, Inc., 278 B.R. 189, 196 (9th Cir. BAP 2002). The applicant bears the burden of proving that "the standards for appointment have been met." In re Capitol Metals, 228 B.R. at 727. "The Bankruptcy Code imposes particularly rigorous conflict-of-interest restraints upon the employment of professional persons in a bankruptcy case." Rome v. Braunstein, 19 F.3d 54, 57 (1st Cir. 1994). "The disinterestedness requirements must be strictly enforced." In re Hot Tin Roof, Inc., 205 B.R. 1000, 1003 (1st Cir. BAP 1997). Section 327(a) has been interpreted "to mean that the attorney must not represent an adverse interest relating to the services which are to be performed by that attorney." In re Fondiller, 15 B.R. 890, 892 (9th Cir. BAP 1981).
Hume Smith and NCI characterize Mr. Allen as "a creditor because in a contingency-fee arrangement, he assumed the risk of non-recovery" and may assert lien or other rights against a recovery in the malpractice/bad faith action to affect potential negotiation in the malpractice/bad faith action. Hume Smith and NCI thus conclude that Mr. Allen is not disinterested.
The September 12 order characterized Mr. Allen as "disinterested" in the absence of his enforceable claim against Hummer. The September 12 order explained that the "only persons having an obligation to Allen under his contingency fee agreement would be the other parties to that agreement, his clients [the Hartys]." The September 12 order pointed to the absence of legal authority to establish Mr. Allen's right to payment enforceable against Hummer arising from a contingency fee agreement with the Hartys.
Hume Smith and NCI fail to demonstrate error in the September 12 order's finding that Mr. Allen is disinterested. Mr. Allen is not a creditor of the Hummer bankruptcy estate and lacks an enforceable claim against Hummer. Hume Smith and NCI fail to substantiate that Mr. Allen's fee arrangement or relationship with the Hartys relinquishes his disinterested status under section 327(a). Hume Smith and NCI identify no adverse interest relating to his services for Trustee Hawkins to question Mr. Allen's disinterestedness. As such, the September 12 order is not in error as to Mr. Allen's disinterestedness.
Conflict of Interest
Hume Smith and NCI argue that Mr. Allen's conflict of interest precludes his employment as special counsel for the Hummer bankruptcy estate.
Section 327(c) provides that "a person is not disqualified for employment under this section solely because of such person's employment by or representation of a creditor, unless there is objection by another creditor or the United States trustee, in which case the court shall disapprove such employment if there is an actual conflict of interest." (Bold added.) "Section 327(c) allows the appointment of counsel to represent the trustee, even where counsel represents a creditor, where the court finds no 'actual conflict of interest.'" Stoumbos v. Kilimnik, 988 F.2d 949, 964 (9th Cir. 1993). When "the trustee seeks to appoint counsel only as 'special counsel' for a specific matter, there need only be no conflict between the trustee and counsel's creditor client with respect to the specific matter itself." Stoumbos, 988 F.2d at 964. "Thus, where the interest of the special counsel and the interest of the estate are identical with respect to the matter for which special counsel is retained, there is no conflict and the representation can stand." In re AroChem Corp., 176 F.3d 610, 622 (2nd Cir.1999).
A conflict of interest is "actual and warrants disqualification under § 327(c) if there is active competition between two interests, in which one interest can only be served at the expense of the other." In re Johnson, 312 B.R. 810, 822 (E.D. Va. 2004) (internal quotations and citations omitted). When "an attorney is employed by both the trustee and a creditor, there is no 'actual conflict of interest' warranting disqualification unless (i) the interests of the trustee and the creditor are in fact directly conflicting or (ii) the creditor is actually afforded a preference that is denied to other creditors. In re Johnson, 312 B.R. at 822. "§ 327(c) makes clear that an attorney's representation of a creditor does not per se deprive that attorney of 'disinterested' status, but rather becomes a potential disqualifier for employment to represent the trustee on the conceptually distinct theory of 'actual conflict of interest.'" In re Kobra Properties, 406 B.R. 396, 403 (E.D. Cal. 2009).
Hume Smith and NCI note that an "actual conflict of interest" mandates disqualification. See In re First Jersey Securities, Inc. 180 F.3d 504, 509 (3rd Cir. 1999); In Re Marvel Entertainment Group, Inc., 140 F.3d 463, 476 (3d Cir.1998). Hume Smith and NCI continue that a "mere appearance of a conflict" warrants denial of employment in that "section 327(a) is designed to limit even appearances of impropriety to the extent reasonably practicable, doubt as to whether a particular set of facts gives rise to a disqualifying conflict of interest normally should be resolved in favor of disqualification." Rome, 19 F.3d at 60. Hume Smith and NCI characterize as an "actual conflict of interest" the status of "a lawyer who represents a creditor, or a witness in ongoing litigation."
Hume Smith and NCI contend that Mr. Allen faces an actual conflict of interest in that he represents two interests (the Hartys and Trustee Hawkins) which pursue the same entities (Hume Smith and NCI) for payment. Hume Smith and NCI argue that Mr. Allen, as counsel for the Hartys and Trustee Hawkins, is unable to "maintain allegiances to both set of interests." Hume Smith and NCI contend that a settlement on the bankruptcy estate's behalf will dilute the Hartys' recovery whereas a settlement outside of bankruptcy "in exchange for the Hartys withdrawing their proofs of claims in the bankruptcy case would yield a greater recovery to the Hartys."
The September 12 order noted the absence of "active competition between both interests [the Hartys and Trustee Hawkins] represented by Allen" given that the Hartys have no direct claim against Hume Smith or NCI and "the interests of the Hartys and the estate are aligned." The September 12 order further explained that Mr. Allen's representation in malpractice/bad faith action does not afford a preference to the Hartys in that any recovery would be shared pro rata by the Hartys and NCI to the extent the estate had sufficient funds to pay unsecured creditors.
Mr. Allen, the Hartys and Trustee Hawkins share a common interest to pursue the malpractice/bad faith action to recover monies to which debtor Hummer is allegedly entitled. The September 12 order correctly concluded that the interests of the Hartys, as creditors, and the Hummer bankruptcy estate are aligned and create no actual conflict for Mr. Allen. Hume Smith and NCI's points as to settlement negotiations raise no more than a potential conflict, not an actual conflict required by section 327(c) for disqualification. The September 12 order correctly noted that problems as to settlement are "systemic to § 327(c), applying to every instance where a creditor's attorney is employed by the Chapter 7 trustee." Hume Smith and NCI's points as to Mr. Allen taking contrary positions in the bad faith/malpractice action are imprecise and fail to substantiate "special circumstances" and in turn an actual conflict of interest. Hume Smith and NCI fail to demonstrate error in the September 12 order's finding no actual conflict of interest.
Mr. Allen As A Potential Witness In The Malpractice/Bad Faith Action
Hume Smith and NCI note that Mr. Allen's settlement negotiations during the personal injury action constitute a "central" topic in the malpractice/bad faith action and qualify Mr. Allen as a percipient witness to disqualify Mr. Allen as litigation counsel in the malpractice/bad faith action. Hume Smith and NCI point to Indiana Rules of Professional Conduct, Rule 3.7(a), which is applicable to the malpractice/bad faith action and which precludes a lawyer to "advocate at a trial in which the lawyer is likely to be a necessary witness." (Bold added.)
The September 12 order questioned Mr. Allen's status a "necessary" witness in the malpractice/bad faith action given the absence of a "showing that Allen's testimony will be necessary" and that "such evidence can be offered only through Allen's testimony rather than documentary evidence or testimony of the Hartys or other members of Allen's firm." The September 12 order surmised that Mr. Allen's testimony may be limited to authenticate correspondence as to settlement negotiations and that "he may not need to be called at all."
Hume Smith and NCI fail to demonstrate that Mr. Allen is a necessary witness in the malpractice/bad faith action in that the focus is on Hume Smith and NCI's decline to accept a policy limits offer to settle the personal injury action. Mr. Allen is not a necessary witness to settlement negotiations in the personal injury action, evidence of which will come from sources other than Mr. Allen and including no less than the Hartys. "A necessary witness is not the same thing as the 'best' witness. If the evidence that would be offered by having an opposing attorney testify can be elicited through other means, then the attorney is not a necessary witness. In addition, of course, if the testimony is not relevant or is only marginally relevant, it certainly is not necessary." Harter v. University of Indianapolis, 5 F.Supp.2d 657, 665 (S.D. Ind. 1998).
Hume Smith and NCI's reply papers emphasize their "oral communications" with Mr. Allen and characterize them as "critical" as to "whether NCI had an obligation to accept the settlement offer." Hume Smith and NCI continue that "oral conversations . . . are relevant to explain the proposed contractual terms of the settlement and NCI's response to the settlement proposals." Hume Smith and NCI fail to identify precisely Mr. Allen's expected testimony or oral communications to support their points, although they have knowledge of such matters. Hume Smith and NCI fail to establish their reliance on Mr. Allen's testimony with examples. Hume Smith and NCI witnesses are able to cover and elaborate on their oral communications with Mr. Allen and their "nuances" without Mr. Allen's testimony. Moreover, Trustee Hawkins' evidence to pursue the malpractice/bad faith claims is a matter of his and Mr. Allen's choosing, and they are surely mindful of restrictions of Mr. Allen's witness role.
The September 12 order correctly concluded that Mr. Allen is not a necessary witness to the malpractice/bad faith action.
Non-Disclosure Of Information Revealing Conflict Of Interest
Hume Smith and NCI challenge Mr. Allen's employment because Mr. Allen "omitted critical facts demonstrating conflicts of interest" in that his employment applications failed to disclose:
1. His representation of the Hartys in the personal injury action (until such omission was brought to Trustee Hawkins' attention);
2. His compensation arrangement with the Hartys;
3. His potential role as a Hummer creditor arising from his compensation arrangement;
4. His role as a witness to support malpractice claims against Hume Smith and bad faith claims against NCI in that the claims address "refusals to accept settlement offers communicated by [Mr. Allen] to Hume Smith"; and
5. The need to take in the malpractice/bad faith action positions inconsistent to those Mr. Allen asserted in the personal injury action.
F.R.Bankr.P. 2014(a) addresses employment of professionals, including attorneys, for a bankruptcy estate and requires an employment application to be "accompanied by a verified statement of the person to be employed setting forth the person's connections with the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States trustee, or any person employed in the office of the United States trustee." "It is axiomatic that a fiduciary has a duty to disclose any connections with the debtor, creditors, or any other party in interest." In re AFI Holding, Inc., 530 F.3d 832, 852 (9th Cir. 2008).
Nonetheless, a bankruptcy court "has discretion to excuse a failure to disclose." In re Thomas, 476 B.R. 579, 587 (N.D. Cal. 2012). "Once the bankruptcy court acquaints itself with the true facts, it has considerable discretion in determining to allow all, part or none of the fees and expenses of a properly employed professional." In re Triple Star Welding, Inc., 324 B.R. 778, 793 (9th Cir. BAP 2005), abrogated on other grounds by Dye v. Brown (In re AFI Holding, Inc.), 530 F.3d 832, 851 (9th Cir.2008). "If the bankruptcy court finds no need to take remedial measures, it appropriately can do so in the exercise of its discretion." In re Triple Star Welding, 324 B.R. at 793.
Hume Smith and NCI argue that Mr. Allen's "lack of complete disclosure is troubling" in that Mr. Allen, as litigation counsel, obtained judgments against Hummer for the Hartys, who commenced the involuntary bankruptcy against Hummer as petitioning creditors. Hume Smith and NCI characterize as "substantial" Mr. Allen's connection with the Hartys, Hummer's biggest creditors.
The September 12 order found as "unintentional error" Mr. Allen's failure to disclose his connections. The September 12 order further notes that Trustee Hawkins "first brought the matter to the court's attention" and that Mr. Allen's "representation of the Hartys was not being concealed as the representation was evident from the Hartys' judgment, which was attached to the Hattys' proofs of claim."
Based on the record, this Court is not in position to second guess the September 12 order's finding of unintentional error to disclose Mr. Allen's connections to the Hartys. Although such disclosure with the first application would have been preferable, Hume Smith and NCI point to no prejudice arising from delayed disclosure to warrant disqualifying Mr. Allen and his firm, especially given the high likelihood that the Hummer bankruptcy estate and its creditors would be best served by Mr. Allen's continued representation.
Denial Of Discovery
Hume Smith and NCI challenge the September 12 order's approval of Mr. Allen's employment without the opportunity to conduct discovery, as permitted through F.R.Bankr.P. 9014(c). Hume Smith and NCI contend they should have been allowed to conduct discovery "regarding Allen's compensation arrangement with the Hartys and the resulting conflicts of interest." Hume Smith and NCI fault the absence of "all facts" whether Mr. Allen has a conflict of interest in his representation of the Hummer bankruptcy estate in that Mr. Allen "may have a more generous contingency fee arrangement with the Hartys than the contingency fee arrangement he has with the bankruptcy estate."
Since the September 12 order correctly concluded that Mr. Allen had no actual conflict of interest, Hume Smith and NCI's requested discovery was unnecessary, especially given the absence of prejudice to them from denial of discovery. Hume Smith and NCI fail to demonstrate the significance of discovery into Mr. Allen's compensation arrangement with the Hartys in that the bankruptcy court's focus on approval of Mr. Allen's employment was his agreement with Trustee Hawkins, not the Hartys.
CONCLUSION AND ORDER
For the reasons discussed above, this Court finds that the September 12 order is supported by the record and proper analysis to approve Mr. Allen's employment, to deny Hume Smith and NCI's attempt to disqualify Mr. Allen, and to deny Hume Smith and NCI's requested discovery. This Court AFFIRMS the September 12 order and DIRECTS the clerk to close this action. IT IS SO ORDERED.
Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE