
USCA1 Opinion

	




          September 21, 1994                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1889                  FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER                          OF NEW BANK OF NEW ENGLAND, N.A.,                                 Plaintiff, Appellee,                                          v.                         FEDDERS AIR CONDITIONING, USA, INC.,                                Defendant, Appellant.                                 ____________________        No. 93-1890                         FEDDERS AIR CONDITIONING, USA, INC.,                                Plaintiff, Appellant,                                          v.                  FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER                   OF BANK OF NEW ENGLAND, N.A., AND AS RECEIVER OF                        NEW BANK OF NEW ENGLAND, N.A., ET AL.,                                Defendants, Appellees.                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET            On page 2, line 1, replace "1886," with "1986,".            On page  4, line 5, first  full paragraph,  replace "bank),"" with        "bank"),".            On  page 12,  line  5,  paragraph 2,  replace  "{$250,000],"  with        "[$250,000],".            On page 13, line 6, first  full paragraph, replace "preclude" with        "precludes".            On  page  14,  line  3,  paragraph  2,  replace  "Williams'"  with        "Williams".            On page  14, line  4, paragraph 2,  add the word  "of" before  the        word "attorneys'".                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1889                  FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER                          OF NEW BANK OF NEW ENGLAND, N.A.,                                 Plaintiff, Appellee,                                          v.                         FEDDERS AIR CONDITIONING, USA, INC.,                                Defendant, Appellant.                                 ____________________        No. 93-1890                         FEDDERS AIR CONDITIONING, USA, INC.,                                Plaintiff, Appellant,                                          v.                  FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER                   OF BANK OF NEW ENGLAND, N.A., AND AS RECEIVER OF                        NEW BANK OF NEW ENGLAND, N.A., ET AL.,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Richard d'A. Belin with whom Michael  A. Albert and Foley,  Hoag &            __________________           __________________     ______________        Eliot were on brief for appellant.        _____            Marta Berkley,  Federal Deposit  Insurance Corporation-Legal,  and            _____________        Kathleen C. Stone with whom David C. Aisenberg and Williams & Grainger        _________________           __________________     ___________________        were on brief for appellees.                                 ____________________                                  September 15, 1994                                 ____________________                 BOUDIN, Circuit Judge.  On December 1, 1986, Fedders Air                         _____________            Conditioning,  USA, Inc. ("Fedders")  signed a  contract with            Liberty Effingham Limited Partnership ("Liberty") to sell  to            Liberty a very large  warehouse in Effingham, Illinois, owned            by  Fedders.   The warehouse  covered 10  acres and  the sale            price was $7 million.  The warehouse  was then under lease to            a tenant,  Sherwin-Williams, and  the contract  provided that            Liberty would assume Fedders' obligations as landlord with an            important qualification concerning roof repairs.                   The Sherwin-Williams lease  provided that Fedders  would            make certain roof  repairs, as well as other  alterations, to            eliminate  leakage.  In the sale of the warehouse to Liberty,            it was intended that  Fedders would make the roof  repairs at            its own  expense.   Accordingly, Fedders agreed  to indemnify            Liberty  for any  loss  or expense  to Liberty  arising under            specific repair provisions of the Sherwin-Williams lease.  To            assure Fedders'  performance, the parties agreed  that of the            $7 million  purchase price  to be  paid  by Liberty,  Fedders            would place $250,000 in escrow with Bank of New England ("the            bank").                 Liberty made a deposit payment of $50,000 to Fedders and            originally intended to give Fedders the balance--$6,950,000--            at the closing; Liberty expected  to borrow $6.7 million from            Bank of  New England and  to furnish  the balance  ($250,000)            itself from  its own account in  the same bank.   Fedders, it                                         -2-                                         -2-            was  intended,  would then  return  $250,000 to  Bank  of New            England  to be held in an escrow account for Fedders, pending            completion of  Fedders' repair obligations  under the  lease.            (The  stated figures  are  approximate, as  there were  other            minor adjustments involved in the closing.)                   At some point prior  to the closing, it occurred  to the            parties that  instead of  having the  bank transmit the  full            balance due on  the purchase  to Fedders and  then take  back            $250,000  for the escrow account, it would be simpler to have            the  bank  retain $250,000  for  the escrow  account  and pay            Fedders  only the net amount.   The parties  agreed to follow            this  course.  At the  closing in December  1986, Fedders was            paid  the $6.7 immediately due to it (the $7 million purchase            less the $50,000 deposit and $250,00 escrow).                 For  its part,  Liberty  gave Bank  of  New England  its            promissory  note  for $6.7  million  to cover  the  bank loan            needed to complete the purchase.  The bank in turn signed the            escrow agreement acknowledging that the bank had received the            $250,000 "deposit" to  be held  in escrow and  invested in  a            "commercial  bank  money  market  account"  (unless otherwise            directed).   In fact, for reasons that are not explained, the            bank did not set up the escrow account, either then or later.            Although it  held Liberty's note  for $6.7 million,  the bank            appears  to have  recorded a  draw-down on  the loan  of only            $6,450,000.                                         -3-                                         -3-                 After  the  closing   Fedders  did  not   satisfactorily            complete the  roof repairs.  Liberty  eventually replaced the            entire roof at  a cost of over $1 million.   In 1987, Liberty            brought suit against Fedders  in Massachusetts state court to            recover the  repair cost from  Fedders.  Later  Liberty added            Sherwin-Williams as a defendant, to obtain declaratory relief            against it;  and Sherwin-Williams  then claimed  damages from            Fedders and Liberty on account of roof leaks it had suffered.            In  December 1990 Liberty assigned  its claim in  the case to            Bank of New England as part  of a workout of its debt  to the            bank.                 In January  1991, Bank  of New England  became insolvent            and  the Federal  Deposit  Insurance  Corporation became  its            receiver.   12 U.S.C.   1821(c)(2).  The FDIC transferred the            Liberty claim  against Fedders to  New Bank  of New  England,            N.A.  ("the bridge "bank")," see 12 U.S.C.   1821(n), as part                                         ___            of  a purchase  and assumption  agreement.   New Bank  of New            England  in turn  assumed Bank  of New  England's contractual            liability for deposit  accounts.   In July  1991, the  bridge            bank was itself  dissolved and the FDIC became  its receiver.            In  August 1991  the FDIC,  as receiver for  New Bank  of New            England,  removed the  Liberty  suit against  Fedders to  the            district  court,   see  12  U.S.C.      1819(b)(2),  and  was            substituted for Liberty.                                          -4-                                         -4-                 In April  1992, Fedders  filed suit in  federal district            court  in Massachusetts against the FDIC as receiver for both            the failed Bank of  New England and for the  dissolved bridge            bank.    On  several  theories (insured  deposit,  breach  of            contract,  breach  of  fiduciary  duty,  unjust  enrichment),            Fedders  sought to recover the alleged  $250,000 escrow.  The            original Liberty action  against Fedders, previously  removed            to the district court, was  partly consolidated with the  new            Fedders action.  The district court tried the  two cases as a            bench  trial beginning on April 12, 1993.  Shortly before the            trial, Sherwin-Williams made its own settlement and ceased to            be a litigant.                 The  district judge,  sitting as  the factfinder,  found            against Fedders  in the  original Liberty action  and awarded            the FDIC $775,000 for the roof replacement.  At a later date,            the district  judge also rejected Fedders'  claims to recover            the  escrow amount  from  the FDIC.    The court  found  that            Fedders was  not a "depositor" entitled to recover an insured            deposit because no escrow  account had ever been established,            saying:                        The escrow account  that [the failed Bank                      of New England]  was contractually  bound                      to create and formally  acknowledged that                      it had created was in fact never created.                      Fedders  therefore   never  acquired  the                      status  of  a "depositor,"  in  the sense                      relevant   to  the   present  litigation,                      notwithstanding  [the bank's]  assurances                      in the Escrow  Agreement.   Consequently,                      FDIC as receiver  did not succeed to  any                                         -5-                                         -5-                      "deposit"  liability associated  with the                      phantom escrow account . . . .            Although the failure to set up such an account gave Fedders a            contract claim against Bank of  New England, the court  found            that  Fedders had waived this  claim by failing  to assert it            within the time fixed  for asserting claims against  the FDIC            as receiver for a failed bank.  12 U.S.C.   1821(d).                 Finally, returning to  the original Liberty  action, the            court  awarded  the FDIC,  as receiver  for  New Bank  of New            England, attorneys'  fees in the  amount of $64,855.91.   The            court ruled that Fedders was liable for this amount under its            indemnity  agreement  with Liberty,  Liberty's  rights having            been assigned to the failed bank, then acquired by the bridge            bank pursuant  to the  purchase and assumption  agreement and            finally held by the FDIC as the latter's  receiver.  How this            attorneys' fee award was  calculated is an issue to  which we            will return.                 Fedders then appealed to this court.  First, it disputes            the district court's  disposition of Fedders' claims  against            the  FDIC relating  to  the escrow  amount.   Second, Fedders            contests  the award  of attorneys'  fees to  the FDIC  in the            original Liberty  action;  Fedders  does  not  challenge  the            underlying award of $775,000 to the FDIC for Fedders' failure            to repair the roof.  We begin with the escrow  issue which is            by  far  the more  complicated  of  the  two, and  thereafter            address the attorneys' fees award.                                         -6-                                         -6-                 At  the  outset,  it  is important  to  understand  that            Fedders'  central claim  on  appeal is  that  it has  made  a            "deposit"  in  Bank  of  New  England,  which  the  FDIC  has            committed  itself  to  honor  without regard  to  the  normal            $100,000 limitation or any objection  as to the timeliness of            a "deposit" claim.1   The FDIC in turn does not  dispute this            alleged commitment  but asserts  that there was  no "deposit"            within the  meaning  of the  statute and,  further, that  its            regulations make  the bank's records  conclusive.  This  is a            civil case, and we take the issues as the parties have framed            them.                  One begins  in construing  a statute with  its language.            The  statutory definition  of deposit is  two pages  long, 18            U.S.C.   1813(l), but Fedders relies principally upon clauses                          _            that include as deposits two specific categories: "the unpaid            balance of money or its equivalent received or held by a bank            .  . . in the  usual course of business and  for which it has            given or is obligated to give credit," and "money received or            held  by a bank .  . . in the usual  course of business for a                                            ____________________                 1The FDIC as receiver is  not the insurer of  deposits--            the FDIC insures in its corporate capacity--but the FDIC does            pay  off   insured  deposits,  taking  the   money  from  the            appropriate insurance fund.   12 U.S.C.   1821(f).   The FDIC            waived the ordinary $100,000 limit in this case.  It also has            not claimed that the request for return of an insured deposit            is  untimely, nor has it  offered any objection  based on its            separate capacity as insurer and receiver.                                         -7-                                         -7-            special or  specific purpose .  . .  including .  . .  escrow            funds . . . ."  12 U.S.C.    1813(l)(1), (3).                                              _                 In  response,   the  FDIC  has  chosen   to  stress  the            underlined phrase  that is part of the  definition of deposit            under  both subparagraphs  of  section 1813(l)  relied on  by                                                        _            Fedders: money or its  equivalent received or held by  a bank                                              ________________            in  the usual course of  business.  The  FDIC also underlines            the  term "account"  which  appears only  in subparagraph  1,            defining "deposit" to include                 the  unpaid  balance  of  money  or  its equivalent                 received or  held by  a bank   . .  . in  the usual                 course of business and for which it has given or is                 obligated to give  credit, either conditionally  or                 unconditionally, . . . to a[n]  . . . account . . .                 .                                     Here,  says  the  FDIC, Bank  of  New  England  "did not            receive any money from  Fedders, and there was no  account."             On the  basis  of this  language,  the FDIC  distinguishes  a            number of  cases, several  of which  are older  but otherwise            helpful to Fedders, such as FDIC v. Records, 34  F. Supp. 600                                        ____    _______            (W.D. Mo. 1940) (deposit insurance covered payment to cashier            who pocketed  the cash).   More important,  the reference  to            money  "received or held" encourages the FDIC to rely on FDIC                                                                     ____            v.  Philadelphia  Gear  Corp.,  476 U.S.  426  (1986).   "The                ________________________            analysis" in that case, the FDIC tells  us, "is much the same            in this case."                 We can easily put  to one side two  of the FDIC's  three            points  based on the statute and Philadelphia Gear.  The fact                                             _________________                                         -8-                                         -8-            that Fedders paid no money to the bank means nothing; Liberty            gave the bank  a note, readily described as  "the equivalent"            of money, to cover a loan by the bank to Liberty, $250,000 of            which  the bank promised to  retain as an  escrow deposit for            Fedders.    Thus, the  equivalent  of  money was  "received."            Indeed, nothing in the substance of the transaction  would be            different  if, as  the parties  had originally  intended, the            bank  had   given  Fedders  the  $250,000   and  Fedders  had            immediately given it back to the bank.                 Philadelphia Gear is likewise  not in point.   There the                 _________________            Supreme Court  rejected  a claim  that  a standby  letter  of            credit backed by a contingent  promissory note qualified as a            "deposit"  under  section  1813(l)(1).    Although  the  FDIC                                            _            admitted that an  ordinary letter of credit  would be treated            as a deposit, it distinguished the standby letter  (a promise            by  the bank  to pay the  seller only  if the  buyer did not)            based on  an administrative practice of  not treating standby            letters  as  deposits.     In  accepting   this  longstanding            interpretation, the Court noted that the buyer who authorized            the  letter had  not even  given the  bank anything  beyond a            contingent promise to pay.  Id. at 440.            __________                  ___                 But Philadelphia Gear did not say that it is a condition                     _________________            of all "deposits" that hard currency be paid to the bank; the            Court  was  concerned  with distinguishing  narrowly  between            standby  and ordinary letters of  credit.  In  fact the Court                                         -9-                                         -9-            noted the FDIC's  own concession that  an ordinary letter  of            credit  in   the  seller's  favor,  backed   by  the  buyer's            unconditional promissory  note, would be  a deposit.   Id. at                                                                   ___            440.   Here, such an  unconditional note for  a sum including                                                                _________            the $250,000 escrow was given to the bank.                   Although   the   "held   or   received"   language   and            Philadelphia Gear  are red  herrings, the remaining  point in            _________________            the FDIC's statutory argument--the statutory  reference to an            "account"--does  deserve attention.   Under the  statute, the            money  or its equivalent must not only be held or received by            the bank,  but must (unless another  alternative condition is            satisfied) be a payment "for which [the bank] has given or is            obligated to give credit  . . . to a[n]  . . . account."   12            U.S.C.     1813(l)(1).   Here, the  FDIC  says, there  was no                            _            account,  so the money or  its equivalent cannot  be deemed a            deposit.                 We  agree with the  FDIC, and  with the  district court,            that  there  was no  account  established  pertaining to  the            $250,000  escrow; but the statute speaks not only of money or            its  equivalent for which the  bank "has given"  credit to an            account but also money  or its equivalent for which  the bank            "is  obligated" to give credit  to an account.   Here Liberty            gave a  promissory note to  the bank in exchange  for a loan,            $250,000 of which  the bank  promised to place  in an  escrow            account  for Fedders.   Although  the bank  failed  either to                                         -10-                                         -10-            create the account or deposit the money in it, it does appear            that it was "obligated" to give credit to an account for this            amount.                 Fedders relied on the "obligated" language in its brief,            and the FDIC has not  answered it.  There may be  answers not            obvious to us in  this very technical area.  Still,  the five            paragraphs of section  1813(l) define "deposit,"  technically                                        _            but   elaborately,  to   cover   a  very   large  number   of            transactions, many of which might not be called deposits by a            lay person.  In sum, we hold that the promissory note was the            equivalent of money; that it was held or received by the bank            in  the usual course of business  to support a loan; and that            in  exchange the bank was "obligated" to credit an account in            the amount of $250,000.                   We  do  not reach  the  alternative  argument made  by            Fedders that  the "escrow" reference in  subparagraph 3 makes            the  transaction a deposit  even if subparagraph  1 does not.            We  do note that there is no parallel "obligated" language in            subparagraph  3,  and the  FDIC could  argue that  only funds            actually  treated by the bank as escrow funds are embraced by            subparagraph 3.   But the  FDIC has made  no expressio  unius                                                         ________________            argument that an escrow  payment excluded from subsection (3)            is automatically  outside subsection  (1), and we  doubt that            any such exclusivity is implied.                                         -11-                                         -11-                 The FDIC's other line of defense  is its own regulation;            under  12 C.F.R.    330.3(h),  it  asserts that  "the deposit            account  records  of  the  failed bank  are  controlling  for                                                         ___________            purposes of  determining deposit insurance coverage."    That            section, after  explaining that ownership under  state law of            funds  on  deposit is  a  necessary  condition for  insurance            coverage, continues:                      "Deposit  insurance  coverage  is also  a                      function of the  deposit account  records                      of the insured depository institution . .                      .  which,  in  the  interest  of  uniform                      national  rules   for  deposit  insurance                      coverage, are controlling for purposes of                      determining deposit insurance coverage."            The  FDIC then tells us that "numerous courts" have held that            the FDIC  may rely "exclusively" on the  "account records" of            the   failed  institution  to   determine  deposit  insurance            coverage.                 Assuming  this to  be so,  we fail  to see why  the FDIC            believes  that "account  records" are  missing in  this case.            Far from  defining "account  records"  narrowly, a  companion            regulation states  that "deposit  account records" include  a            variety   of   specific   items   (e.g.,   account   ledgers,                                               ____            certificates of deposit,  authorizing corporate  resolutions)            and  "other  books  and  records of  the  insured  depository            ___            institution [including computer records] which relate  to the            depository institution's deposit taking function . . . ."  12            C.F.R.   330.1(d) (omitting exclusions not here relevant).                                         -12-                                         -12-                 In this case the district court made a specific finding,            not  challenged by  the  FDIC on  appeal,  that Bank  of  New            England "held . . . . a copy [of the escrow agreement] in its            records."   This agreement,  signed  on behalf  of the  bank,            explicitly acknowledged "receipt of said  amount [$250,000],"            denominated the "Deposit"; and  the document provided for the            deposit to  be invested  in a  "commercial bank money  market            account"  (unless  a  different  investment was  approved  by            Fedders  in writing).  In  other words, the  bank's books and            records did include evidence of the "deposit."                 We  might have a different case if the FDIC had disputed            the amount of the  deposit and invoked 12 C.F.R.    330.3(i).            That regulation  does purport  to make the  "deposit account"            conclusive  as  to the  "amount" of  a  deposit.   Assuming a            "deposit account" is something narrower than the bank's books            and  records--which  it  may  well  be--the  FDIC  has  never            challenged  the  $250,000  figure  nor  has  it  relied  upon            subsection (i).    Once again, after years of  litigation, it            is fair to  resolve the  case in the  terms that the  parties            have presented it.                 Accordingly, we think  it is unnecessary for  us in this            case to plunge  ourselves into the  morass of decisions  that            bear  on   whether  and  when  erroneous   bank  records  are                                           _________            conclusive against the depositor and when correctly  recorded            but unauthorized activity  by a bank (e.g., paying an insured                ____________                      ____                                         -13-                                         -13-            account to a  thief) precludes  an insurance  claim.2   These            cases  reflect the  severe  tension between  two values:  the            legitimate expectations of the depositor and the  regulator's            desire to rely upon existing records to expedite the handling            of  bank emergencies.  Not surprisingly, the cases do not all            point the same way.   Here, however, the FDIC's  premise that            the  "deposit  account  records"  defeat  Fedders'  claim  is            mistaken.                 What  remains  is the  Fedders  attack  on the  district            court's  award of attorneys' fees.   The only  basis for such            fees  was  the  clause  in the  indemnity  agreement  between            Fedders  and Liberty incident to the purchase and sale of the            warehouse and the latter's assumption of the Sherwin-Williams            lease.   The agreement, as  construed by the  district court,            required  Fedders  to indemnify  Liberty for  attorneys' fees            arising   from  litigation  related  to  certain  roof-repair            provisions of the lease.  The FDIC has succeeded to Liberty's            rights of indemnification.                   In the district court the FDIC  urged that the indemnity            covered all  of  its attorneys'  fees  incurred in  the  roof                    ___            repair action originally brought  by Liberty against Fedders.            The district court, however, determined that only the portion                                            ____________________                 2See, e.g., In Re Collins Securities Corp., 998 F.2d 551                  ___  ____  _____________________________            (8th Cir. 1993); Abdulla Fouad  & Sons v. FDIC, 898 F.2d  482                             _____________________    ____            (5th  Cir. 1990);  Jones v.  FDIC, 748  F.2d 1400  (10th Cir.                               _____     ____            1984); FDIC v. Irving  Trust Co., 137 F. Supp.  145 (S.D.N.Y.                   ____    ________________            1955); FDIC v. Records, 34 F. Supp. 600 (W.D. Mo. 1940).                   ____    _______                                         -14-                                         -14-            of Liberty's or  the FDIC's attorneys'  fees that related  to            Sherwin-Williams  own  lease  claims,  asserted  by  Sherwin-            Williams  in  that  case,   were  covered  by  the  indemnity            agreement.  Sherwin-Williams ceased to be a party after  very            lengthy  pretrial  activity  but  shortly  before  the  trial            itself.  On appeal, this construction of the indemnity is not            disputed  by  either side.    The  only  issue  concerns  the            district court's apportionment of counsels' bills.                 Because  the  Liberty  and  FDIC counsel  had  not  kept            records to segregate particular hours to work relating to the            Sherwin-Williams' claims,  the district  court  made its  own            apportionment.   Of the $165,000 of  attorneys' fees incurred            by Liberty or the FDIC in Liberty's action, counsel estimated            for the court that 50 percent  of the total attorney time was            attributable to the  Sherwin-Williams claims.   The  district            court found this boilerplate conclusion insufficient standing            by  itself; but its own evaluation of the record persuaded it            that the work done by Liberty or FDIC counsel on the Sherwin-            Williams claims justified an  award of just under  $65,000 in            attorneys' fees, calculated as follows:                 First,  of the  fees incurred  by Liberty  between April            1988 and March 1991, the district court found that just under            $25,500  was  attributable  to  the  Sherwin-Williams  claims            (rather than  the $36,000 claimed by the FDIC based on its 50            percent  apportionment).   The  court  examined  each of  the                                         -15-                                         -15-            invoices  submitted  by  counsel  and  for each  one  made  a            separate estimate (ranging from  15 to 50 percent) as  to the            portion of each invoice  so attributable.  The court  said it            was resolving all ambiguities against the FDIC since it  bore            the burden of proof as to fees.                 Second, of the fees incurred by the FDIC, as receiver of            the  banks who  succeeded  to Liberty's  interest, the  court            found  that  just  under  $40,000  was  attributable  to  the            Sherwin-Williams  claims (instead of  the $46,500  claimed by            the FDIC).  The court  assigned to those claims 50 percent of            the  fees incurred prior to  December 31, 1992,  based on its            review  of  the relevant  docket  entries;  and it  similarly            assigned 25 percent of  the fees between that date  and April            8, 1993  (when Sherwin-Williams settled its  claims) since by            1993 the roof repair claim against Fedders was  moving toward            trial   and   the  Sherwin-Williams   damage   claims  toward            settlement.                 Fedders'  argument on  this  appeal is  straightforward.            The company does not attack any  of the specific computations            made by the  court.   Instead, it says  simply that  Fedders'            indemnity  commitment to  Liberty is  a contract  governed by            Illinois law;  that Illinois law requires  "detailed proof of            the  amount  and  basis"   for  attorneys'  fees  even  where            attorneys'  fees  are promised  by  contract;  and that  such            detailed  proof was not supplied in this case.  Fedders' main                                         -16-                                         -16-            authority,  Kaiser  v. MEPC  American  Properties,  Inc., 518                        ______     ________________________________            N.E.2d 424  (Ill.  App.  1987),  does  indeed  say  that  the            attorneys'  fee  claimant   must  present  "detailed  records            maintained during  the course  of  the litigation  containing            facts   and   computations   upon  which   the   charges  are            predicated."  Id. at 428.                          ___                 We will assume from  the district court's description of            what the court had to do (and from the FDIC's silence on this            point)  that  the  FDIC  counsel certainly  did  not  furnish            information needed to separate the Sherwin-Williams time from            the remaining time.  But while such a deficiency would surely            permit  the district  court  to reject  the fee  application,            nothing  in Kaiser  requires that the  court do so  if it can                        ______                                  __            fill  the gap  in  proof  itself.   In  fact,  in Kaiser  the                                                              ______            appellate court appeared to agree with the claimant that "the            trial  court ha[d] the discretion  to consider the content of            the record  [i.e.,  "the entire  case file"]  to determine  a                         ____            reasonable  fee";  but the  court  upheld  the trial  judge's            discretionary   decision   not  "to   conduct   the  in-depth            examination necessary  to locate documents and  pleadings" to            substantiate individual items.  518 N.E.2d at 429.                 Even if we treat Kaiser as an authoritative statement of                                  ______            Illinois   law--and  the  FDIC   disputes  this--it  arguably            licenses, and  certainly does  not clearly preclude,  a trial            judge's  own decision to supply  from elsewhere in the record                                         -17-                                         -17-            supporting  information  and  inferences  that  the  claimant            neglected  to  collect.     Here,  the  district  court  made            precisely this  effort, explaining that  the FDIC's  original            fee  request  was  based  on  a  reasonable  reading  of  the            indemnity,  even  though  the   court  ultimately  read   the            indemnity  more narrowly.  This course  was not required, but            neither do we see why it was forbidden.                 Fedders identifies no  other error in the  calculations.            It does not try to  show how the fee request information  was            deficient beyond  the obvious failure to  allocate (except by            the inadequate  boilerplate 50  percent  estimate alleged  to            reflect all  of the work  over a lengthy  period).   Nor does            Fedders offer specific attacks  upon the district court's own            computations  (which were  several pages  long)--for example,            the  decision  to assign  25 percent  of  the April  1, 1988,            invoice  to the Sherwin-Williams  claims--by seeking  to show            that  they  are  irrational   or  without  basis.    Limiting            ourselves  to  the  narrow  challenge  made  by  Fedders,  we            conclude that the award of attorneys' fees was justified.                 More broadly, we think that the district court admirably            handled this complex, double-barreled law suit and agree with            its  treatment of practically all  of the issues  raised.  On            the single one where  we part company--the "obligated" clause            of section  1813(l)(1)--we note  that the district  court did                             _                                         -18-                                         -18-            not discuss the clause, possibly because  it was not stressed            by counsel at the trial or the subsequent hearing.                 The judgment  is affirmed in  part and reversed  in part                                  _______________________________________            and the matter  remanded to  the district court  in order  to            permit the judgment  entered against Fedders in  favor of the            FDIC to  be adjusted--whether by  reduction or  by a  counter            judgment in favor of Fedders--to reflect the $250,000 deposit            that the bank was obligated to escrow (including any interest            adjustment that the district  court may find appropriate) and            that is now owing to Fedders.  No costs.                 It is so ordered.                 ________________                                         -19-                                         -19-
