authority in a provides courts with a workable framework that they customarily apply in the sanctions context respondents in fact acknowledge the direct causation standard applies sometimes but not always there  suggestion however does not provide concrete guidance to the district courts and it would in evidently lead to the expansion of the inherent authority one of the reasons this court has been rather about any sort of broadening of the scope of the inherent authority is because the due process issues in separation of powers issues combine with a court determining the violation acting essentially as prosecutor and factfinder and then imposing the penalty compensatory damages under the contempt in her car were compulsory punishment damages that require criminal civil procedures that the same thing you're asking us  whether that was driver error or whether there was impact image that we're going to given the opportunity made me think clarify this the court said well if we're wrong about giving all of the coun unrelated then correct so there's two points on that first of all that was how that appalled was the court had already ruled against us on the causation points we had lost that battle and then when we when the plaintiff finally submit their fee application we took a fallback position and said at a bare minimum this needs to be carved out so we haven't waived that but i think the second misconduct what we represented was that it was related to the medical costs the medical damages proving up the medical damages as well as the pursuit of the other defendants so that would be one subset of the of the that were not caused by the misconduct but it wasn't a total one and what's significant about that as well is that the court said it's impossible to make this calculation but then the court did at least to a certain extent make a calculation based on the evidence that was submitted your test is the direct directness of the causation and i guess i'm curious as to how you would apply that in practice i mean if you take a case for example they don't get the heat rise test they get something else that isn't as in their view dramatic or compelling and they have to go through all sorts of they're preparing somebody to testify about this other test and they incur one hundred thousand dollars in expenses to do that is that something that would be directly caused by the failure to disclose that he writes test i think there's a couple different ways you can look at it i think we gravitate towards the fox test which is the incremental harm so if you were going to engage in that litigation anyway and you were going to engage in prepping that witness anyway well let's say they're not with this one you know if you get the rights test that's that's much more dramatic we don't need to worry about you know this less compelling i think there certainly could be situations where you where the proponent of these would say we would not have taken this deposition if we had had this document for instance and then that would that could be something that they would then recover for i think generally what you're looking at is is the incremental cost going above a cutting broadly have to lines because you can never set the line precisely but justice as the chief justice said on the heat rise to yes there was one expert that was questions but would have been questioned in a totally different way if the proper tests have been disclosed why was that causal decision by the district court room or we think that they couldn't recover for that x mark and in fact court's findings well in fairness the district court told us we were not going to be able to do that and we that's that's how this seven hundred thousand came up because we took a fallback position and tried to say well at a bare minimum these things are so far to wh order we had raised they they had requested all sorts of remedies for sanctions and we had raised the causation point the causation limitation the district court rejected that in the november two thousand and twelve order and said no you get everything and so in response the plaintiffs filed a three page free application that said give us everything along with all of their time records so then in response to that that's where we filed our opposition and said you know that's where we raise the a practical in a legal answer that the practical answer is because they are the ones that incurred the fees they are in the best position to say these fees were incurred as a result of the misconduct and i think if you look at all the sanction regimes the burden  is on the proponent to establish the propriety of the award the legal answer is that bagwell although doesn't squarely address this point does seem to indicate that it is the proponent that needs to establish the causation and belief just ski your concurrence seem to echo that as well and then when you look at alaska that case said look we want to be apprehensive about shifting the litigation burdens in middle of a slightly different context with legislative guidance and of course that's part of the problem here is there is no what sort of guidance which is the reason that there needs to be a causation check on the inherent authority that mr bush can i go back to the question that the chief justice asked you  you said that you favored the approach of fox advice which is a but for test it's would you have incurred this cost anyway even without the misconduct but fox the vice never uses this language of direct mass which seems to me actually much more in line with proximate cause inquiries foxley vice you know never addressed proximate cause either way it wasn't a proximate cause the fact pattern this actually seems not really a proximate cause fact pattern either it just seems as though it's a you know it's you know should there be a but for a test so i guess i'm wondering where does this language of you say but for but you also say direct what do you mean when you use those applying now we looked at foxy vice install essentially the same analysis because what those cases are trying to determine in in the other sanction regimes is what is the excess cost in fox  differently looking at calling it incremental cost calling it but for so essentially we think the test are synonymous and the reason that it's a little bit different than say proximate cause is because we're dealing with the american rule and coming up with an exception to the american rule but obviously the exception is not it's not an all or nothing point of fox obviously me that well suppose we say that the facts of the vice but for test is something along the lines of what we should be applying here so how does it in your reply brief you basically say that a court can never you don't even you don't just say in this case that was wrong and your play brief you say a court can never say look the case would have settled right away and all costs ought to go to the victimized party why is that if it's a but for test why couldn't a court on a proper set of facts say look if this if this abuse hadn't occurred this case would just never have gone on we think that that is just far too speculative to satisfy a direct causation tast in obviously in this case it really illustrates the point because the district court said i'm pointing to good years experience in other cases but in those cases it went all the way to or through trial but the the other problem with is i don't know what it would it to speculative i mean the court says look i understand that i have to find this you know that it's more likely than not that's how we make findings about what costs would have been incurred anyway would you know there's never any certainty we're always saying more likely than not with this cost from the perform to the task of actually looking at what the misconduct was and how that impacted the fisa incurred and i think it's pretty easy to think of hypothetical some of it might be unrealistic in which the eventual disclosure of some piece of information that should have been disclosed a lot earlier is so fatal to the defense that the case would be settled as soon as that came to light you think it's impossible to imagine something like that suppose there were some internal goodyear document here that said you know we're going to sell this we're going to market this to r v s but we know it's really not suitable for r v s and so if people put it on an r v and they're driving around in a hot climate the tire is going to explode and if you had an internal document like that would be very hard to say well once this comes out we're going to have no option but to settle the issue of liability in i can certainly imagine such a document but the problem with that is  if the document shows that the entire litigation is not in good faith i think that's a different issue that's getting closer to changers but if it doesn't do that the problem with using it potential someone date as a barometer for causation here is we can't tell you how many mediations i've walked into when knowing my client's risk tolerance and what i thought the other side was going to say is that this case can settle absolutely is going to sell today and it doesn't happen i mean it just ends up being too speculative because you can't you privilege on both sides to get any sort of determination as to whether they would actually settle yes but if a lack of certainty like that is going to prevent a judge from making such an award then people on the other side that people who are are going to be under compensated in case after case case after but i don't think that that's the case here because obviously if if a direct causation test is applied and they get the incremental cost that they would have received in the absence of the misconduct then they receive the the appropriate compensatory award and it satisfies due process concerns well the sort of you are asked to at the outset about the chambers cases i just can't really find when this conduct and it did point out that the entirety of the case was built on a fraud and that there was no good faith defense to litigation so in that circumstance of course the district court in chambers said this is unique and it probably is unique situation but then we move to the bagwell the other point about chambers is it was built on the foundation of contempt and so it's built on the contempt cases in distilling a rule from those but then that change with bagwell because we have  clarification on the distinction between criminal and civil and bagwell was drawing that line and causation and that's why there's any tension between chambers and bagwell bagwell should prevail on that point  the court applied the wrong legal test which constitutes an abuse of discretion we think ultimately that the court should remain to the district court to allow the court to apply the direct cause ation test that the court declined to apply the first time when the district court gave these two awards the two point seven in the two million do you understand that to have been two point seven if i'm not bound by a cause requirement two million if i am i think that's how the court invasion it yes yes case so then why hasn't that been done already in the district court in other words if you are right that there is a causation requirement here we send it back to the district court has and the district court already performs that calculation i think that would be what the respondents would say in their whole argument on that is that we waive anything beyond the seven hundred thousand my point is that we preserve that and therefore the court would need to go through and go through the exercise of actually applying a direct causation test on these facts as they are here  think what if you look at what the district court did it found very specific dates of misconduct so you can look at those dates of misconduct what those episodes were and then compare them to the time records but what's the difference between the two million in the two point those other defendants it's clearly not being impacted by the misconduct by goodyear and then the second was proving up medical damages because you're going to have to prove up you gave this figure to the district court you said of the court's order so if that was your definition of was what was unrelated to the harm what's left for the district court to do and i understand that i understand the point we made we did preserve  that filing that we were preserving our miller argument which had been raised previously miller was one circuit decision that imposed direct causation in our view and so our point is we understand if you disagree with us and say we weigh fat th would be the remedy my point though is that because the direct causation else was never done in the first place there were need to be remain and for that exercise to take place and i think it's important as you look at what the district court found in this gets back to you know wise it's not like chambers discoursed found that the discovery cost were inflated by the misconduct and that the case would have been more complicated was rendered more complicated by the misconduct but that assumes that there is a baseline for how legation should have proceeded and the then there is a difference and that difference there is capable of determination and that's the point that we're raising in terms of that this is something that can be follow up to that deposition of the efforts to get the test if there were discovery requests or negotiations over discovery perhaps a status conference the olson deposition where the district court found misconduct in the preparing for and following up on that opposition in the hearings where the misconduct occurred and the preparation for the the how much is that i don't have a number for you just that's not anything like the full two million it's not it would not be and hopefully i don't want to be exclusive here because the challenge we had is we never had an actual fee applications says these are the categories of fees that were incurred as a result your misconduct and then we could respond that we never had that because the district court said you get everything so they said we want everything in so they may have other categories that they would say and then we would debate that for the just you said you wanted to use the facts of the vice standard and part of that is the but for causation inquiry and part of that is pretty clear statement that we don't expect district court judges to be a can't you know green eyeshade accountants is i think what we call them right to go over each you know our of an attorney's work we understand the district courts are going to have to make some broad categories and some guesstimates do you agree with that we do i mean there is certainly going to be discretion by the district court we actually think that this test is going to be easier to apply at the end of the day because if it's incumbent upon the proponent to say to internalize a direct causation but for test and then make the arguments and say these are the categories of fees that were incurred as a result of this conduct and then here's a common  causation allowing the court to use a cutoff date in just sweep everything going forward is would be inappropriate but even if you disagreed with me on that as such wofford noted in dissent there was no record support for that conclusion but it was to suppose that there was a finding made in another case that the case would have settled much earlier than would then i would go back to my first point which is that's an inappropriate basis upon which to obviate the need for causation that the court should not be getting into a temporal line drawing in terms of how we determine what these may or may not have been caused by misconduct instead it would be looking at you know what are the categories that were caused by the misconduct in making those calculations going forward but but once you start once you sanction the ability to just draw temporal line in sand then i think that makes it too easy for courts to avoid actually the hard work sometimes some cases can be easy but the harder work of going through and looking at the time entries well if you're not then i thought you admitted earlier that it wouldn't be appropriate for us to say that could never happen or maybe i misunderstood your answer suppose we i think that there could be circumstances in which a court could say this would have settled based on the fatal nature of the disclosure this would have settled sooner had it been properly disclosed you would have to fall back on a rule that says this is never it although court is sometimes permitted to do this legal will has to be it has to be done of cases or something like that well and that's why i go kind of with my with my first point which is we shouldn't be it once you start going at once you open the door to that i think there's a problem the application and what we're trying to do is provide a rule in more misconduct you're going to necessarily generate more fees in response to that and there's obviously a turn of fact of this award the the lead counsel no longer practices lawyer honors in this order is going to follow good year for years and this is whether the award is two point seven million dollars or a million dollars it has significant to turn in fact and i was you were dealing with following litigation going beyond this but this is something that  it the end of the day if there is an appropriate causation test applied in the proponent of sanction gets made whole by that and it satisfies any due process concerns but mr version you're saying well you should use a causation test but you can't ever consider the likelihood of settlement but the likelihood of settlement might be might not be here but might be in another case quite relevant to the question of what fees have been caused by the misconduct it i so what i would say to that is that yes you could envision a case where that might happen and on the facts of this case it couldn't but if in obviously my preference is a rule law that would say you can't but if you left the door open for that there would be one possible only if i can reserve the balance of my time thank you counsel thank you mr chief justice and may it please the court the district court and the ninth circuit in this case both acknowledge that there needs to be a causal link between the sanction misconduct and the fees and costs awarded as think sions so to the extent there's been argument that there was a rejection completely of a cause ation link completely that simply is not the case here how does it what is the causation link between their misconduct and the fees incurred with respect to other defendants well one thing is there's two answers to that your honor one is that a very simple level if we had the very strong evidence of the that was concealed here that showed that the tire was defective and because of the heat rise test and that evidence that it may have been that we would not have needed to go against any of the the other defendants at all well but i mean the as i understand it the allegations with respect to the other defendants did not have relationship to the heat rise test and if if if that's the case you're saying well we would have gotten enough money from goodyear we wouldn't have cared about the money from the others no your honor this was a situation where there was an accident and there there was the other defendants or the builders of the chassis of the motor home and the other the builder of the motor home and then the tire manufacturer so we knew somebody was at fault there if we knew that it was clearly goodyear because of the concealed evidence that was so devastating to their case it's possible that the there would be no need to go after the other chassis maker who had nothing to do with that is that the standard could be possible well your honor it's the the standard is that we're asking district court judges to make factual determination and in this case we've got a district court judge who us that through five years of litigation she knows what the issues what the critical issues are in the case she knows whether or not that evidence that was withheld and ultimately disclosed was crucial to that and that's what she then goodyear was you just said i thought that the ninth circuit accepted a causation requirement did you just say that yes your honor i didn't read their the ninth circuit opinion that way i'm looking at page thirty two of the petition the ninth circuit reads chambers to me that all attorneys fees may be awarded once the sanction he's begin to flout their clear discovery obligations and engage in frequent and severe abuses of the judicial system and then it's goes on to say that that to the district that there wasn't that the supreme court expressly rejected the linkage argument made by the sanction esau that doesn't seem to me to be accepting any kind of causation requirement rather just say where you've got very frequent and a and pervasive abuse you get everything if not no your honor there are other sections in the opinion and i'll talk about the portions that you just read but they the ninth circuit said the district court did all it was required to do in this case in determining the appropriate amount of fees to award as sanctions to compensate the plaintiffs for the damages they suffered as a result of sanction is bad faith and then they went on they expressly said in this we next consider how close a link is required between the harm caused and the compensatory sanctions part of the confusion that this here is that goodyear argued when they argued direct causation initially and even in the ninth circuit they were arguing a different concept than they do today what they were advocating for was that the trial court judge needed to go through the billing statements and with respect to each line item directly link it to a specific instance of misconduct the trial court judge says i don't have to do that when she rejected that direct causation it that that was sanction nees argument of that concept that she was rejecting she didn't reject the concept that there had to be a causation some compensatory aspect of this that heard judge watch for it disagrees with your reading  majority i think he does your honor but here why did the district court set two standards to two point seven and the two point zero if she thought that she was bound by causation i thought that that the whole idea of those two lists one was a fun bound by a causation requirement and one was if i'm not you know your honor it's close to that but what it was was that if i'm bound by what they're saying that i'm bound by that i have to go through each of the billing records each billing line item and link it to an individual instance of misconduct if i'm wrong on that then i'm going to give you i'm going to do us an alternative award and let me address for a moment what was asked earlier about whether or not that's been waived because they did in fact make the argument that the seven hundred thousand were all that was causally linked they didn't argue anything else was was suffered from the causal link deficiency what they argued was just the seven hundred thousand and they they now claim that they preserved it in a footnote in their in their papers but what's significant is if you look at their ninth circuit brief they didn't argue anything beyond the seven hundred thousand there either so it's really in this court for the first time that they seek to expand beyond the seven hundred thousand we say that's too late that they may they had a chance to argue the causal link deficiency and they did but it was only to seven hundred thousand and that they should be held to that the ninth circuit did not hold that there was a waiver that it did not it didn't address the the contingent award at all they didn't even mention that your honor you said you were going to  respond to justice alito is statements from the ninth circuit i have another one to give you i mean this is the closest it seems to me as to a standard that comes from the ninth circuit that the district court awarded the amount that the court reasonably believed  haters to litigate against a party during the time when that party was acting in bad faith so it seems to me that the ninth circuit was viewing this chronologically when the party was acting in bad faith all of those costs are and fees are appropriate now i disagree respectfully your honor i think what the ninth circuit concluded based on th the district court's extensive findings was that this evidence that was concealed and all the related to seeds were so important to the plaintiffs claims and so devastating to good years defense that that it caused the entire litigation as a whole to be a sham and that's the language of the ninth circuit said we're we're going to we believe that the whole thing was a sham and so to use a train analogy most sanction cases involve misconduct that merely delays the training or perhaps ultimate you know causes a detour but ultimately that train arrives at the intended station in this case the what the district court found and which the ninth circuit agreed was that the train jumped the track and it went in an entirely wrong direction it didn't even try the case that the claims that that my clients had it tried the case based on a false set of facts and never ever it was never because the misconduct was never discovered during the course of this litigation there it was completely empty charade it didn't try the real facts of this case it tried what goodyear allowed us to have only and so because it the whole thing was a sham the district court appropriately said you know the whole thing was wasted it was a wasted effort and therefore i'm exercising my discretion in holding that the whole thing should be reimbursed i've got to put you back in the position you were before you started down jumped track and went in the wrong direction completely and that's what awarded and who gets to make that kind of a decision that's a factual determination the judge in this case was entitle to make a determination of what was the central issue in the case how crucial was this evidence to that central issue what was the impact of not having that i think all of those are the types of factual determinations that we want district court judges to make and to just to justice alit hypothetical there can be situations where the it can be so devastating that it really could be a court could appropriately find that it would have settled at this point and that this is such a case this is a case where it is not supported by the record well the his main criticism your honor was that there were other cases in which the test were disclosed and they didn't settle but here's the important point and this is undisputed judge silver specifically found the district court judge specifically found that unlike in our case where we had an expert that set admitted goodyear's own internal expert a that anything above two hundred degrees would cause problems for the tire cause separation they didn't have that evidence in those other cases all they had was the test results that showed it was above two hundred degrees significantly above two hundred degrees it's the combination of both that is so damning it's describe for me your definition of direct causation or causation causation your own i prefer cause they have me a definition that causation is that it has to be the result of or caused by it's just the but for it's what we've been what the case law has been operating under there is no use of the word direct in prior case i get into nineteen different meanings of clause in the law i mean proximate cause is normally defined as a but for condition and foreseeable and your honor if we start having and why should we have some of the definition here i agree i do not we have not advocated for adding additional language or modifying i don't what you know argument here you look at what the district court said she didn't say really that i'm going to look and see if there's a vote for an foreseeability and moreover she said cause and then she said well maybe it's not so so it's sort of ambiguous what she did send it back to the ninth circuit the proximate cause that you apply it that you do it if not send it back to her by your honor to begin with whether or not we need to make a clarification with respect to cause generally is a separate issue but in this case we submit there's no basis for remained into the trial court for any further consideration because she already took their causation argument at full face value and adopted one hundred percent of their argument and or the contingent of what we think about the ninth circuit to well there's no there's nothing to be left the there's been a waiver of their argument and her this court could simply say that the contingent award should be in effect well but i'm not sure that she when calculating the seven hundred thousand dollars applied an appropriate proximate cause analysis i mean in that those are things like the other defendants and all that i mean i'm not sure that unless you accept the idea understand your argument well it would have settled and therefore everything every expense was caused it seems to me that saying the only ones that were proximately cause not proximately caused with the seven hundred thousand dollars is a bit of a stretch but she she didn't have to make that determination your honor because they made the argument they came forward and said that of this two point seven million your  argument the waiver argument which was agnostic not the ninth circuit did not rely on the waiver argument that the ninth circuit did not address the contingent award at all and so didn't need to get into whether or not there was a waiver the ninth circuit affirmed on the basis of the larger award so here what we have is if if we're going to say that the trial court used the wrong standard then we have to say well do we need to send it back to to use the right standard there they're arguing that the right standard was that they shouldn't she should have used a different causation standard but they've already made that argument to her and they told her that if you accept our argument it adds up to seven hundred thousand dollars she accepted their argument one hundred percent well yes i suppose the idea would be that in an opinion we would provide greater guidance on exactly what type of analysis is to be applied and if the district court wants to go ahead and say well that's exactly what i did within the case they can take the case from there but i mean simply because and as i look at the calculation i understand why the seven hundred thousand would be carved out but i don't think it can be regarded as the application of proximate cause across the board well i think it's certainly was the application of whatever it was the party was arguing and my concern is that we're going to give the party a second bite at the apple if you we don't have to the  have she said the key words here the district court said as she said the case is more likely more likely than not would have settled much earlier when then she says but of course the evidence might have made plain it's realize they had a winning trial and they would have refused to settle and then she said what ultimately i concluded that the most appropriate award given these circumstances is t award all of the for use and cost incurred and the reason for that your honor was because the entire litigation became a sham because we were litigating a false set of facts and it and she said that it permeated every aspect of the litigation those facts are those findings are subject to great deference and we ought to be deferring to that those findings and she sat through five years of this litigation and then had two years worth of a sanction proceeding well but you say it was a sham but maybe you disagree but good year in its in its reply brief details the good faith defenses it had that were unrelated to the heat rise test in other words about the cause of the accident whether other parties were involved in the tire was already damaged you know all sorts of other things including ones that went to the question of damages which surely would have been pertinent and whether the case would have settled and that's good years version of the facts that's good years argument about here's the findings that she could have there's evidence to support these concepts but those were arguments and facts that were presented her there version was presented to the trial court th looked at that version looked at the contrary version and made a determination of what she found to be the facts well and it's hard for me to have the district court would be in a position except perhaps in a to extraordinary case to to make the calculation or the parties would have settled this i mean you're involved in this your friend on the other side is you know discussions about whether the settle the case and a lot of different things go into that calculation and sometimes they they line up and sometimes they don't but explain for the district court to to make that determination it seems to me that that would be a very hard calculation i mean things like the extent to which your clients need the money to the extent to which your clients with their expectations were what their stomach for going on with more years of litigation is i don't know how a district court factors in all those considerations well your honor even if we accepted that that factual finding by the district court as merely an indication of how critical and crucial this evidence was to the case then we can apply that to her other findings unrelated to well it would have settled immediately she also found that  this misconduct was so pervasive and that it permeated every aspect of the litigation that's that's the basis on which the ninth circuit ultimately said that she found that it was a sham that the entire  honor your exe you're right that they're all that they make arguments that the district court could have and indeed should have found otherwise what they're in effect doing is they're saying hey there's other facts out here that if viewed in our favor would help us and would contradict what the district court judge found but just because there are two possible reasonable findings of fact from the evidence doesn't mean that the trial court judge was clearly erroneous in making her determination it's her determination as long as that's not clearly erroneous her determination should stand not what good your says was also a possible interpretation of all the facts  and i think that's what that goes to your honor here there there are other arguments that they could make indeed they did make other arguments and at the end of a very long excruciating process the judge stuck her neck out and made findings fact and those findings of fact are not clearly erroneous and because they're not they should be the basis on which we make the determination here in this case well i'm not sure you would call it and it's not a typical finding of fact to say that based on all of the you know issues into which i think the parties would have settled i find it more likely than not i mean it has factual elements but it's much more of a judgment terminations simply this is what happened where this is what would happen your honor i i agree that it is an unusual finding but i do think that it is nevertheless a factual finding and i and i think that if we're going to put the burden on trial court judges to grapple with cases in which the we're not talking again we're not talking about something that slowed the train down we're talking about something that the district court judge found was pretty monumental went to the very heart of this case and if we're the one key thing all that we know there has been sham litigation in the world and she says maybe the plaintiffs wouldn't have settled who knows you probably know but who knows and the key word she leaves out and there's some evidence she thought she was doing something different name of the seven hundred thousand is that she applied a proximate cause stand she doesn't say she's doing that there's some indication said well she did apply the right standard and even if she didn't we lose the seven hundred well your honor that is certainly a possible procedure but we see no need to even send it back to the diet circuit to further embroiled the plaintiffs in what has already been an extraordinary long process here the i think that the easiest part of this case is that the good you're had an opportunity to make a it's causation argument it did and it argued to the tune of only seven hundred thousand what can possibly be served by not saying that they're bound by at least that part of it even if we're not going to stand behind the outside the record but i can tell you that it's that's not how it works under the agreement with with the client  we would ask the court to to make take very careful look at not only the aspect of the settlement piece of it that justice brier has has focused on but it's also an alternative finding that was one of her two findings that she allowed her to go up to award the entirety of the fees and costs incurred the other one is that the misconduct was so severe and pervasive that it permeated every aspect of the litigation now that's not a a speculation as to who would settle or not that's a distinct finding what does that mean is that different from saying that it caused everything to say that permeated everything is that the same things the same that it caused everything i think your honor i think it is i think that's what the district court judge men if you look at the entirety of her sixty six page decision i think that's what she was getting to that this was so significant in the context of these specific facts that changed everything we in every you know they talk about what what what would you put on your list of what we can recover what every deposition we asked the wrong questions every motion we made the wrong argument everything every effort that was done was affected by that's the question and that's a legal question that's very suitable for us if in fact that is the case that a district court would not have awarded fifteen dollars or fifteen million whatever it is the this some out it would have found no causation or would not have found causation and would not have worded that the but for the fact it was absolutely agrees those that permit the district court to word that is a pure legal question and we're where do you stand on that i mean that it seems on the basis of the precedent rule eleven the mineworkers and so forth the answer to that question is no unless you go into criminal proceedings now where do you stand i agree one hundred percent your honor that i don't know but i best to question i haven't i mean which side i stand on the side that says that it does have to be compensatory and simply cannot say well this was very bad ok there has to be causation and our position has i think we read both the district court decision and the ninth circuit decision as a whole admittedly there are there are lines that one can pull out that would create confusion particularly in the district court decision because she was looking at some ninth circuit decisions that created confusion for her but at the end both of them acknowledge that there's a causation requirement and we do not shy from that we because you would then be in the realm of having to use criminal the heightened criminal due process protections but that that is not our situation we believe that the two alternative findings of fact are sufficient for the award of all of the fees and costs that were current and again when i say all of them i'm talking about from a point early on in the litigation not from the very beginning but early on throughout the end because the court and the ninth circuit agreed that the entirety of the litigation was a sham yes there were other things that were done in terms of medical depositions but they were all done in the context of an empty charade and when you do things in the context of an empty charade they're still empty and so we would we believe that the did not abuse her discretion in making those findings and that they should be affirmed thank you thank you counsel mr berger ron you have four minutes remaining thank you the district court did not apply the result of or caused by tests that mr ebert just articulated it never went down that path and that what they seem to be arguing in their brief was that there is a distinction between is just prior asserting the truly agree just from the last egregious which was how the district court tried to draw the line as we pointed out that's not an effective way of drawing a line you could never have a test where you would say well this is truly a great just so causation this is less egregious so we have to have more tailoring and they don't provide a satisfactory response to that on the point about what we argued at the ninth circuit we did make the point we argued that this court's entire determination was  not based on the correct legal standards so we asked the whole thing to be reminded to this important i do understand that one argument they've that i had not thought of the case and justice briar sa we don't know what would have happened that's what the district court said could have settled try to way it could have gone to trial for more money his argument that what she was really saying was this was a sham litigation because with the proper information everything related to your client at least would not have happened the way it did things would have been a very different litigation from that moment on whether to do settlement or not you wasted their time and the court's time because everything was infected by the failure to get the heat rices why isn't that  gloss on what the district court did the dischord never made any finding that there was sham litigation here in fact the district court expressly declined to resolve you know how significant this test was of the other day and if you look at the district court's findings about the they're all related to this test and this test is one component of the design defect claim there were other claims that did not survive summary judgment failure to warn manufacturing defect those are all unrelated to this test so there is a lot of stuff in the litigation choice a lot of debates i mean pursuit of other defendants there are so many things that happened independent of this heat rise to us that we're not a waste and we're not need to be redone if you presume that the case you  arguing about use the wrong word earlier than i'd argue about that apparently more likely than not it would have settled there for costs that do in fact flow from the fact that it didn't settle many issues to go into whether or not you have a settlement and just because there was the disk or believe that they may have settled earlier but again the court didn't say when we would have said earlier and you make that an issue of below  yes we did i mean and obviously just wofford agreed with us in the ninth circuit because we made that point made that point there's well one of the other things i want to emphasize is that the part of the reason we need a meaningful causation test is t bring this on line with the inherent authority in line with the other sanction regime so that courts cannot basically avoid the requirements of the other statutory rule based sanction regimes by a liberal of the causes requirement under inherent authority big good example this is rule thirty seven rule thirty seven governs production of documents and the failure to produce documents that could have been something the district court relied on here and there is a direct causation requirement so the district court should not be able to avoid rule thirty seven go to inherent authority and get a broader sanction in power so for all those reasons or i respect the requests reversal thank you