Taking Stock / The Epic Trabelsi-Nass Saga

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 collapsed in a thunderous roar.

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 collapsed in a thunderous roar. Selling Clubmarket to Supersol 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 about 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 shade 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 have not heard their reasoning.

In their petition to the court, they presented 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 this, we can understand that when Clubmarket collapsed and was delivered to their care, Trabelsi and Nass would have had no pangs of conscience over charging the unhappy creditors of that unfortunate chain NIS 104 million as their fee.

One could derive endless amusement from the superlatives that the duo heap upon themselves in attempting to justify the ludicrous fee they are demanding. They also heap praise on Judge Varda Alshech, presumably so that 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 - it is the former antitrust commissioner. He agreed to let Super-Sol buy Clubmarket, despite grave concern about anticompetitive aspects of the deal.

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 by IDB and Super-Sol of the monopolistic power they would gain if they bought Clubmarket, too. Merged, Super-Sol and Clubmarket control 36 percent of Israel's entire retail market.

The Clubmarket trustees did perfectly good financial and legal work and deserve praise for that. One cannot blame them for the regulatory disgrace of 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 were 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 they invested in the Clubmarket project. Assuming that a day at the offices of the valiant doctors Trabelsi and Nass does not last more than 24 hours, and that their average intern needs at least three hours of sleep a night and one hour for rest and meals, it is 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 public relations gambit, or a negotiating position. You toss out a completely outrageous figure in order to get half the amount, which in this case also looks excessive.

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 that she is being lenient over 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 by 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 they actually worked and their expenses, so that creditors, suppliers and workers throughout the land can see that the court is genuinely fulfilling its role as protector of the public interest.