The Epic Saga of Trabelsi and Nass

Tears spring to the eyes as one reads the testimonies of attorney Shlomo Nass and accountant Gabi Trabelsi, the trustees for Clubmarket, the supermarket chain that had collapsed in a thunderous roar. Selling Clubmarket to Super-Sol (TASE: SAE) was a heroic deed, no doubt about it, one of the most courageous missions ever undertaken in Israel's business sector.

The literary motif that arises time and again in the epic saga of Trabelsi and Nass is "rescue". This is not a story about business, or loans or tycoons or creditors or workers: this is a fascinating human drama about a "patient" that they overcame all odds to save.

Our epic heroes, Trabelsi and Nass, are larger than life, but to our heroes' regret, - not everybody quite sees it that way. So they are left with no choice but to drive home the points themselves: "In our case, the surgeons saved the patient's life by working ceaselessly, day and night, and not resting until we were confident that the patient's faculties were restored and it could lead a healthy life."

Medical doctors are bound by the Hippocratic oath and must handle all patients that knock at their door. But the Clubmarket doctors were a hair more materialistic. They are asking the court for a nice round fee of NIS 52 million for their pains.

Sound excessive, you say? That is just because you haven't heard their reasoning.

In their petition to the court, they present an old chestnut. A man with an agonizing toothache asks for treatment in the middle of the night. As dawn breaks, the treatment ends and the patient stretches in the dentist's chair, then asks what he owes. "Pay me half what you were willing to pay when your tooth hurt," the dentist says.

From which we are to understand that Trabelsi and Nass believe that when Clubmarket collapsed and was delivered to their care, they would have had no pangs of conscience at charging the unhappy creditors of that unfortunate chain NIS 104 million as their fee.

One could derive endless amusement from the superlatives that the twain heap upon themselves in attempting to justify the ludicrous fee they're demanding. They also heap praise on Judge Varda Alshech, presumably so she will approve their gigantic fee. But the important thing is to understand the secret of their success in selling Clubmarket (to Super-Sol, which belongs to Nochi Dankner's IDB group).

To whom the credit really belongs

If anybody deserves a bonus for the high price Dankner paid, NIS 765 million which is to be shared among the creditors, the banks, and the suppliers, then it's the former antitrust commissioner. He agreed to let Super-Sol buy Clubmarket, despite grave concern about anticompetitive aspects.

The high price was not thanks to any astounding administrative achievements by the trustees, who ran the Clubmarket chain for all of two months between its collapse and the time the court approved its sale. It was based mainly on the assessment at IDB and Super-Sol regarding the monopolistic power they'd gain if they bought Clubmarket too. Merged, Super-Sol and Clubmarket control 36% of Israel's entire retail market.

The Clubmarket trustees did perfectly good financial and legal work and are due praise for that. One cannot blame them for the regulatory disgrace in permitting such a dramatic increase in the concentration of power in the retail sector. That is not their responsibility: their job was to obtain the best deal for the creditors' sake.

But the trustees are not entrepreneurs curing a sick company. The risks they undertook were limited. If the chain had collapsed entirely, or had been sold for peanuts, they would have incurred no losses.

Their fee should be based on the number of working hours invested in the Clubmarket project. Assuming that the day at the offices of the valiant doctors Trabelsi and Nass doesn't last more than 24 hours, and that their average intern needs at least 3 hours of sleep a night and one hour for rest and meals, it's hard to reach an NIS 52 million fee, or even a third of that sum.

Actually, this NIS 52 million story smells more like a PR gambit, or a negotiating position. You toss out a completely outrageous figure in order to get half the amount, which in this case looks overdone too.

Judge Alshech, like many of her colleagues, is naturally close to the communities of the lawyers and accountants. It is easy to understand why so many of the people involved in the Clubmarket case feel she is being lenient on this fee business. But her job is not to represent the guild of lion-hearted receivers, trustees, and liquidators: her job is to represent the hundreds of creditors who trusted Clubmarket and lost their money, and are now facing the overwhelming marketing power and negotiating clout of Super-Sol.

The heroic epic of saving the Clubmarket chain through slaving day and night makes for good reading in the papers, and assures more work for the devoted doctors in the future. But to obtain a fair ruling on their fee, Nass and Trabelsi must be required to submit a precise, accurate report of the hours of work actually done and their expenses, so creditors, suppliers and workers throughout the land clearly see that the court is truly fulfilling its role as protector of the public interest.