Good afternoon. Before I proceed with my
remarks, I just want to correct the record.
This morning at the beginning of the educational panel on valuation, Don
Bernstein announced that Michael Kramer of Greenhill & Co. was unable to
attend and that he had offered me the opportunity to replace Michael on that
panel. He said that I had declined
because I was not sure I fitted into the garb of an investment banker. That wasn’t quite true. What Don failed to state is that the real
question presented was the amount and payment of a success fee!
I just wanted to set the record straight.
There is one
other problem. Six or more weeks ago,
Ralph Maybe called me and asked me if I had prepared my remarks for today. I responded in the negative, but told him I
would prepare a draft that evening and send it to him pursuant to his request. When I sent it to him, I did not know that
he was going to steal it and use it during last night’s ceremony. As a result, I have spent all morning
rewriting my remarks.
The ceremony at
the Supreme Court was quite impressive.
I particularly noted Leonard Rosen’s statement that he had majored in
accountancy during college and had expected to pursue that profession. I once asked Len why he had not stayed with
accounting. He told me that soon after
graduating from college, he went for an interview for an accounting
position. There were two candidates,
Len and another young man whose name just happened to be Arthur Anderson. During the interview, Len and Mr. Anderson
were asked a number of questions. One
of those questions was, “How much is 2 + 2?”
Len seized the opportunity and replied, “Four.” The interviewer turned to Mr. Anderson, and
he replied, “How much would you like it to be?”
Len quickly
decided that he had better go to law school.
It is now time
to proceed. It is a great pleasure to
be here this afternoon, particularly with respect to my assigned role. The subject is Leonard M. Rosen.
In the course of one’s life, you meet many persons and one or more of those
persons, because of his or her unique talents and personality, may have a
significant impact on your life and the lives of others. I was hoping that I could say that Len Rosen is that type of person!
I am glad to say that my hope has been gratified. There is no
doubt that Len is a person who has had a significant impact on my life and the
lives of many others.
On a personal level, it is conceivable that but for Len, I might not be standing here this
afternoon. I first met Len, as an
adversary, in 1960. It almost seems
like yesterday. Many of you will be
surprised to learn the respective roles we played at that first meeting. It was in the context of a Chapter XI case
that was filed in the Southern District of New York. Len Rosen was the attorney for the debtors! Remarkably, I represented the creditors’
committee. What a reversal of
roles! At that time Len was a partner
in Seligson, Morris & Neuberger and worked primarily with Professor Charles
Seligson.
Back in those olden, golden days, under Chapter XI of the Bankruptcy Act, there was
provision that required that a debtor post indemnity for the privilege of
seeking to reorganize under Chapter XI if it projected losses during the
Chapter XI administration. The
so-called indemnity hearing was required to occur within the first 10 days of
the commencement of a Chapter XI case.
It was to be followed shortly by the first meeting of creditors. [Throughout my career, I have searched for
the second meeting of creditors. I have
never found it!]
In any event, my confrontation with Len occurred at the indemnity hearing. The debtor in that case, Jane Lee Stores,
Inc., clearly was going to lose money in its operations post Chapter XI. As a first year associate who happened to be
standing in the wrong place in the men’s room, I was assigned to handle the
indemnity hearing. The assignment
presented a difficult problem since I had never taken a course in creditors’
rights. Consequently, I diligently and
exhaustively prepared for the hearing.
I read the Bankruptcy Act provisions carefully. I discovered that a loss in operations by a
debtor in possession, receiver or trustee mandated posting of indemnity. I took the words of the statute at face
value. I poured over the papers filed
by the debtor. I discovered buried in
the heap of papers a 30-day forecast that demonstrated a loss in
operations. I thought I had a summary
judgment case.
I went to the indemnity hearing, waiting to meet my adversaries.
For the time, it was a rather large case, and the courtroom was
packed. At the time I had no real idea
who Charles Seligson was let alone Len Rosen.
Shortly before the 10 o’clock calendar call, a short, rather
benign-looking gentleman entered the courtroom followed by a husky young man
who immediately moved to the counsel table, pushed my papers aside and sat
down.
They were Professor Charles
Seligson, the attorney for the debtor, and his then bag carrier and scribe, Len
Rosen. Professor Seligson shook hands
with me. It was a rather limp
handshake. I said to myself, “I can
take this guy, and I’m sure that Rosen won’t say a word.” I was brimming over with confidence.
At 10 o’clock a.m., the court was called to order; the door to the judge’s chambers opened; and in walked Asa S. Herzog, then a referee in bankruptcy. He mounted the bench. He
looked down and suddenly stood up and said:
Professor
Seligson, what an honor and a
privilege to have you in my courtroom. And welcome to you, Leonard.
He then came down from the
bench, walked around counsel table, past me, and embraced both Professor
Seligson and Len Rosen. I broke out in
a cold sweat. Nevertheless, I persevered. In a brilliant argument I demonstrated
beyond any “peradventure of a doubt” that the debtor would lose money in
operations and erode the assets that might be available to satisfy claims of
creditors.
The Professor (Charles was always referred to as the “Professor”) rose, Len handed him a set of notes, and
he proceeded to wax eloquently on the philosophy of rehabilitation and
reorganization. He did not refute the
fact that the debtor in possession would lose substantial monies in operations
during the Chapter XI period. I noted
the same in my rebuttal. We rested.
Judge Herzog looked up at
the ceiling of the courtroom, paused, looked down at me, and stated
unequivocally, “The motion for indemnity is denied. You made a very nice argument, Mr. Miller, but the principles
enunciated by the debtor’s attorneys as to the objectives and purposes of
Chapter XI must be respected. The
imposition of indemnity would render those principles illusory.”
Although demolished, the
consequence of that hearing was the beginning of a friendship with Len as well
the Professor that has dramatically changed my life. It led to Len Rosen a year or so later offering me a position
with Seligson & Morris. I did not
hesitate to accept that position, even though I was warned that it might be
temporary. It opened up whole new
vistas and intellectual stimulation for me.
Len became my boss and very dear friend. The only problem that arose was that about two years later, Len
casually announced to me that he, Marty Lipton and George Katz had decided to
leave the firm. That was a sad day for
me.
So Len went off and helped
to build Wachtel, Lipton. I soon
discovered he had once again seriously impacted my life. I found that out to my dismay as I
periodically read The American Lawyer and became aware of the profits per
partner at Wachtel Lipton. It is at
those moments that I said to myself, “Len, how could you have left me
behind?”
Of course, I’m not serious
about that. I take great pride in what
Len and his partners have accomplished.
As the years passed and I discovered that oppressed debtors really
needed better representation, our roles reversed as, from to time to time, I
became a debtor’s attorney and Len, more often than not, ended up representing
the creditors’ committee in cases that I initiated. That is with one exception.
As many of you know, Len was
the attorney for W.T. Grant Company, the first billion-dollar Chapter XI case
when it was filed in October 1975. Once
again, I represented the creditors’ committee and thereafter the trustee in
bankruptcy. That was the last time that
Len Rosen represented a debtor. It was
a great and seminal case for all of us.
The creditors’ committee met twice a week commencing at 7:30 a.m. at the
W.T. Grant headquarters in Time Square in New York. The meetings often went into the late hours of the night. It was always exciting to sit there in the
boardroom and watch the luncheon sandwiches curling up as midnight approached. As the case progressed, each day we would
watch Len’s hair slowly turning gray.
It also became painfully obvious that Len had no intention of every
representing a debtor again.
Although Len implemented
that intention, we continued to work together over the subsequent years to the
mutual benefit of our clients and in other aspects for the improvement of our
Bankruptcy Code. I am extremely
grateful to Len for the very positive impact which he has had on my life and
the development of my career.
As to Len’s impact upon
others, for the past 47+ years, Len Rosen has stood out as an exemplar of a
human being, attorney and teacher. He
has pursued with dedication and diligence the improvement of our nation’s
bankruptcy law. First, as a practicing
attorney and a founding partner of the prestigious law firm of Wachtel, Lipton,
Rosen & Katz. Second, as an
untiring member and, ultimately, Chairperson of the National Bankruptcy
Conference from 1984 – 1992, critical years in the evolution of our Bankruptcy
Code. Third, as an adjunct professor of
law at New York University School of Law for many years.
On
top of all of that, Phyllis has told me, and I have no reason to doubt it, that
Len is a great husband, and I know he is a wonderful father. All you have to do is speak with any one of
his three sons, Adam, Stephen, and David, or his beautiful daughter, Carol, and
also their respective spouses and his eight grandchildren.
Throughout
his professional career and his personal life, Len has exhibited enormous
talent, intellectual honesty, intelligence, objectivity, personal dignity and
an infectious good will – qualities that have enabled him to calm stormy waters
and allow competing parties to reconcile their differences and resolve their
disputes. His ability to diffuse
conflict is legendary. In more than one
complex restructuring or reorganization, it was Len’s ingenuity, perseverance
and persuasiveness that cut the Gordian knot.
The Chrysler restructuring is just one example of this great talent.
Despite
his great success, Len is a man of great humanity. He has been, and continues to be, extraordinarily sensitive to
the needs and interests of the underprivileged and the under-represented
through his active participation in public and charitable organizations. His wisdom and advice are respected by all
who know him. His achievements speak
for themselves. During the 43 years
that I have known Len, I have never heard anyone utter a bad word about
him. Len is always referred to as a
“good man.” Not many of us can make
that claim. It is quite an achievement,
particularly in the perspective of our peculiar and often adversarial and
litigious environment.
Len has proven that Leo Durocher [for those who are too young to remember him, he
was the manager of the Brooklyn Dodgers and then the New York Giants] was
absolutely wrong when he said, “Nice guys finish last.” Len, unequivocally, has been and continues
to be in first place in all divisions.
Len
truly is a man for all seasons. It has
been and continues to be a great privilege to know him, to work with him and to
enjoy life with him. He adds luster to
the College by his acceptance of the 2003 Distinguished Service Award. It is my great privilege to stand here today
to honor Len and to present him with the College’s Distinguished Service
Award.
