On Friday, May 29, 2009, attorneys for the Type A LandAmerica lead case, Matthew B. Luxenberg, Trustee of the Matthew B. Luxenberg Revocable Family Trust (“Luxenberg”), filed their application for interim compensation of $645,122.50 and reimbursement of expenses of $50,710.10 for services rendered from January 23, 2009 through April 30, 2009. Luxenberg is represented by Sands Anderson Marks & Miller, P.C., DurretteBradshaw PLC, and Bernstein Shur Sawyer & Nelson, P.A.
On January 7, 2009, the Joint Motion of Debtor and LES Committee for Order Establishing Scheduling Protocol for Adversary Proceedings was filed seeking entry of a protocol for adjudicating the lead cases. The Court’s Order Establishing Scheduling Protocol for Adversary Cases was entered on January 16, 2009 (the “Protocol”). The Protocol selected five leads cases: Millard Refrigerated Services, Inc. v. LandAmerica 1031 Exchange Services, Inc., Adv. Proc. No. 08-03147, Frontier Pepper’s Ferry LLC v. LandAmerica Exchange Services, Inc., Adv. Proc. No. 08-03148, HealthCare REIT, Inc. v. LandAmerica 1031 Exchange Services, Inc., Adv. Proc. No. 08-03149, Howard Finkelstein v. LandAmerica 1031 Exchange Services, Inc., Adv. Proc. No. 08-03171, and a fifth comingled case to be identified later (the “Test Case(s)”).
The comingled exchangers were divided into three Lead Cases: Type A, Type B, and a comingled exchanger who transferred both cash and non-cash proceeds to LES (the “Hybrid Exchanger(s)”). Frontier Pepper’s Ferry, LLC represents the Type B comingled exchangers, Howard Finkelstein represents the Hybrid Exchangers, and the Type A comingled exchangers’ representative was not yet identified.
On January 19, 2009, the Unofficial Ad Hoc Committee of Comingled Exchangers (the “Ad Hoc Committee”) filed the Motion for Order to Appoint Official Committee of LandAmerica 1031 Exchange Services, Inc. Comingled Exchange Participants, or, in the Alternative, to Allow Comingled Test Case Plaintiffs’ Professional Fees and Expenses as Administrative Expenses Pursuant to Sections 503(B)(3) and/or 503(B)(4) (the “Motion”). As the title of the Motion indicates, the Ad Hoc Committee sought the appointment of an official comingled exchanger committee or the alternative relief of allowing the professional fees and expenses of all comingled Lead Case plaintiffs.
Despite objections from LES and the Committees, the Court found that serving as a Lead Case plaintiff constituted a “substantial contribution” to LES’s bankruptcy estate and granted the alternative relief, allowing an application for professional fees and expenses for the unidentified Type A comingled Lead Case to be filed. As a clarification to its ruling, the Court held that upon motion of the other comingled lead case plaintiffs, the Court would rule on allowing an application for their professional fees and expenses.
On January 23, 2009, the Ad Hoc Committee identified Luxenberg as having an Exchange Agreement with LES that qualified him as a Type A Claimant.
On February 2, 2009, Luxenberg, LES, and the Committees filed a joint stipulation consenting to Luxenberg’s selection as the Lead Type A Plaintiff.