may please the court theodore frank for the appellants and i'd like to reserve eight minutes for rebuttal if it pleases your we have here a thirty five million dollars settlement where the attorneys are getting fourteen million and change and there's another twenty one and a half million dollars where the state there's nothing in the record indicating who and where it's going to we don't know how much is going to the settlement in ministration whether it's half a million or two and a half million or more even we don't sometimes under the settlement that is racial or you don't really know until it's over that struck your honor but in this case the claims carry guns of august first and the judgment issued in december  there is going to be between ten and fifteen million dollars going to psych ray recipients we don't know how much and we don't know to whom and that's still not in the record and all we know about what's going to the clients is that as of the day did the fairness approving the settlements and we are appealing the settlements approval and we're appealing the fourteen million dollar attorney three hundred twenty three age you know on the settlement part what is your what is the violation of due process the rule twenty three noticed it's not indicate who the cyc recipients are giving the class no opportunity to object to that there is no procedure below establishing that the class will ever given notice of the cycle recipients as i thought that on that one so i prayed recipients will be noticed when they're determined and that you have an opportunity to object at that time there's nothing in the settlement providing for that that's the representation of the parties on appeal after we've appealed had we not appealed and then attempted to appeal later they would have said you should have akil before so we're in a situation where if we don't  and get a ruling one way or the other whether we should appeal now or a field later we'll be prejudiced later let me take a step back it would seem that if you have what is a thirty four million dollar settlement thirty five million thirty five ok thirty five and that it is estimated that at best eight million will go out through the three classifications or three categories of possible recipients is that correct eighteen or so but you know you know you're following within three groups that's correct what i thought was eight million to the three groups well we don't know that it's eight million  it's probably closer to one or two million but that's what i said a million at best right but i there are three there's sort of a matrix there's six certified subclasses based on individual products some are three hundred are products some are much cheaper and then there are three categories just rhetoric nobody has said that she thought it would be eight million at best that's correct ok so let's just give it the best for the moment and then you have going up the council eleven million plus these plus expenses which equal another two to three million so roughly fourteen million a council and under that best scenario you would have twelve million going out to an identified cypre recipients is that correct that's correct and i thought your argument would be that doesn't fit as to what normally is done in a class action but it doesn't seem that's really the argument you're making well that is one of the arguments for making and where is it in your brief it's in the art section where we're complaining about the proportionality of the attorney for the relative to the class recovery well that sounds like what you're saying there is you should take thirty five million less the whatever goes to the cypre recipients which is yet to be identified and not really calculate attorney's fees until you subtract this i pray amount from the actual amount going to the class well your honor under sentence and under potential this circuit follows a percentage of the recovery standard but it would be recovery to a class as opposed to we cited a variety of cases relating to the issue of the proportionality of the attorney fees relating to the class recovery and all we're asking for is that the court that the district court instead of doing a percentage of the fund basis to what this this the actual circuit standard is which is a percentage of recovery basis that's what you're talking about the settlement so well that that's reflected in the fact that the the notice the twenty three emailed us about how to make a clean and the four page claim form which deterred class members from making legitimate claims by telling them by failing to tell them the ways that they could make legitimate claims for substantial amounts of money and instead told them if you fill out this four page form all you're going to get is five dollars that reduced the number of claims and that's one reason why we only have forty one thousand why you require these things to go on or penalty of perjury that's why you can have audit procedures and certainly that's a reason to prioritize the people who have the better creusa purchased the receipts and the credit card awards but i don't see anything in the air live principles that says that the cypre has to be identified up front before the settlement can be approved but you seem to say that the initial notice has to contain th kellogg out of the night circuit on september fourth and has happened in in several other cases such as notch and versus a we're asking that's beyond what you're asking as it relates to my principles you want us to also adopt an additional requirement is that right class members should be overcompensated instead of having additional large sums going to cypre or simply that there should be a mechanism to make sure that they're sufficiently compensated i'm not quite sure which argument you're making we the court can go either way on that the ally says that you don't have to have a windfall go to class number so we're not saying that you have to have a windfall go to class members but the class members with one hundred seventy five dollar it's hard to tell whether your objection to the notice is independent or whether you're saying that somehow her notice would have resulted in more class members in the other subclass those are three separate issues one is the notice of how a class member can make a claim one is the notice to the class of this i crave recipients is and one is the prioritization problem where the court failed to follow a clear and other precedents in putting the class challenging the holding that the class members who got sixty percent of the purchase price are fairly compensated well there is no procedure in the settlement saying you can come in and object and there's not even anything in the court order saying you can come in and object that something that they now agree to that and but you know if you affirm without saying you can come in object we don't get to i think it's better for the court to do it in one fell swoop rather than piecemeal that's what denis versus kellog help but it's an acceptable we're not going to appeal that to the supreme court if that's what this if this court decides that we're that the third circuit's happy with multiple appeals  what would you appealed on then if you if this library recipient was recent you notes were listed at that time at the time of the settlement and let's say you were satisfied with would you would you still have objected yes because the fees are just proportionate to the class recovery and the notice to the class that they could recover it the settlement is structured to benefit the attorneys and the attorneys favorite charities rather than the class members how much additional do you think would go out to class members if there were modifications made to the southern agreement that one would like to have will a could be any there there one point three million class members you know even if just two percent of them made claims have been triple the number of claims made and instead of one or two who are on realistically eight million being distributed classed we could see the entire eighteen nineteen million go to class and again we don't know how much is actually left over after settlement and then straighten out this that's just by correcting the no decision that that seem it's out of the norm where you have a seems to be out of the norm where you have at best going to class recipients eight million probably significantly less than that the class members getting less than counsel normally you don't see class members getting less and i mean significantly less in both cases than the cypre recipients and i mean i've talked with other judges on this and nobody seems to remember anything like that i'm not aware of a similar situation either you're but i think i'd like to take this back and put the whole thing into a context we entered into a settlement agreement the purpose of the settlement agreement was obviously to compensate the class members we divided the class up based upon the products that were involved we allocated damages based upon the analysis done by our expert in terms of what those damages would be we presented that to the court for preliminary approval and sending notice to the class the language that is at issue here and the claim form says that to recover the maximum amount you can from the settlement fun for your purchases attached documentation showing your purchases of the products listed above well did did you anticipate that a lot more claims were going to be made absolutely so you didn't anticipate that's a huge cypre of course not and why is it then that you didn't build in a mechanism into the settlement agreement to guard against that huge side price such as a second notice to the class attempting to get more claim or a potential for really goshen of the five dollar cap i mean wouldn't it have been better to guard against this result well your honor i will be honest with you i guess with hindsight a lot of things w but if you look at it at the time and let's do that at the time we knew that we had thirty five and a half million dollars in a settlement for we knew that we had and that represented approximately twenty four percent of the damages that the class members could claim we knew that we had one point three million notices to send out we had that information we assume for purposes of terminating and you can assume anything that you like but for purposes of the terminating well whether cypre actually would come into effect we thought about ten percent claimants and five percent claimants and when you apply that and assume that half of them would be five dollars and half of them would be full value claims for want of a better expression all of the money is used up we don't get to cypre right but i maybe this is my economics background but that's one issue on ch'ien of course shouldn't you have also made the alternative assumptions that would have guarded against exactly what occurred here i mean i f the putting aside whether the court adopt a i principles in there plenty of courts that have said that cypre is supposed to be the exception it's not supposed to be the tail wagging the dog which is what it ends up being here especially when you have the attorneys fees award applied against the entirety of that figure so should you have made the alternative assumption that that perhaps there be money left over that would be too large for a reasonable cypre or there is there's  always the that possibility certainly does always exist the question then becomes whether what you can do to say i was to to resolve that problem is more costly and will result in more benefit but then then then the alternative i don't know no it isn't and a redistribution of the class is not going to cost her a lot of nine dollars no it won't it'll probably cost one and a half or two million dollars and it would probably it might result in more claimants but it might also result in the same number of clients well if it were resulted in the same number of claims and wouldn't you just change  assumptions with regard to how you came to the five dollars would you just say well we now know let's say you get you're reno's yet same number of people that we know the entirety of the class you know we to change the percentage you could do that or you could have done that i should say again with proper notice to the class with proper opportunity for people to come and do almost anything there's no question about that the question here is though i'm a district court judge my job is to review the settlement and determine whether it's fair or reasonable and adequate at the time i so the first time i review it is course at the time that a preliminary approval when notice has to go out that describes the settlement for the club then the next time i have to review that is before the close of the cla period but at some time later so there's a bit more information not necessarily enough information to tell you that there is going to be a small number of claims assumption the judge brody made here that there would be at best an eight million dollar set of claims might very well have been right and also might have been wrong turns out it probably wasn't overestimation i think it probably was i mean the problem you have here is from from a court point of view is an optics if you have a for example a presidential opinion that comes down that says ok we're going to adopt the principles and  principles we're going to approve or allow a settlement to go forward in which you have much much less going to the class than you do to counsel and much much less going to the class than you do the yet and identified cypre recipients it it sends a message that ok i can file a suit here settle and among other things get attorneys fees based on the the full amount of the settlement when in fact i really didn't benefit because that much and don't get me wrong i realize here that you're taking a big hit on the dollar so i'm not but it what we've the facts that you have in this case before us are not a great set of facts in which to go out and set precedent i guess part of the problem comes back to  how many times there's a district court judge have to review and how often should a district court judge have to review the settlement agreement and settlement terms to determine whether it's and reasonable inadequate and then come back and revisit that issue but if we set a standard and for in this particular case i think it's very difficult for anyone to argue that judge brody did not follow the  those in a class and when those in a class who are under category one or two i guess are getting trouble they claim that they have and yet the aggregate amount is so little compared to the amount of the settlement that no look at the good i understand that your honor but how part of the problem is how out we send out notice how you want your friends response from the other table will be and that is that that you send out a notice that that gives them some hope that they might be able to to actually fi i mean their argument was that your notice it was so strict with respect to what the requirements were i mean i don't keep or for purchase on major purchases much less eighty furniture and your honor nor do i and one of the reasons that we provided for people to be able to make claims without proof of purchase was for that very reason well there's a debate as to whether or not you're here well here's your time of the five dollar a group of people who had no objective proof that they purchased the product that they purchased it at babies r us and that they purchased it during the class period she viewed as not an unreasonable burden and not an unreasonable thing to do because otherwise you're going to encourage fraud and that was a balance that she tried to say fraud you know and i agree that fry's not a good thing and that you need to to try to guard against it but just hypothetically are you going to false statement under oath to a federal court for seven fifty if you can to it's amid a false statement under oath for a federal court to a federal court for ten dollars well your honor first of all is five dollars a product and it's eight products so it could be forty false claims are submitted in the in these cases which we look as we said in the record below we consulted with our administration expert about what numbers should be used how do we balance between encouraging claims and discouraging fraud how do we deal with these issues and that was a number that they suggested and thought would be fair but then that brings you full circle back to the issue with respect to the notice to the other classes which is which is did you really need to require the proof of purchase in the whole discussion that you had with the the trial court during that someone here and we said well maybe somebody could send in a photograph but there was nothing in the notice that that would allow that oh i disagree your honor i think that the no you re y noticed far more narrowly than i think a class member would read it says that you need some form of documentation it gave examples of the kind of form documentation that would be acceptable but there it didn't say that's the only kind and in fact it's a quite openly that anything would be to would be fine the fact of the matter is that documentation means anything that would prove it and a photo in and of itself won't prove that your glass meant no proof that you have a picture of the product you're going to need some more evidence and i think as i said in the record you could have to show with whatever it is you produced that you bought it at babies r us at the very least and that doesn't happen with just a photo so  really the problem that we have your it's clear as is the number distribution but yes your point is listen sure things could have been done differently but there's nothing that judge brody did that was improper if we want to come up with a new testing come up with a new test or specific directions if something unusual like this happens i think part of the problem is none of us have ever seen a distribution like this before you know if this case were let's say twenty million to the class and fourteen for council fees you know you might say ok you're fine you know because that's the usual case so i korea usually an afterthought it's the residue of your fully compensated and that was the intent here that's what we tried to do we set up a procedure i know mr frank says there's no procedure but the settlement agreement provides that the plaintiffs and the defendants would recommend site potential cypre recipients to the court the court would evaluate that and make a decision so there is a procedure involved and any time the court's going to enter an order that order is appealable i'm not sure what it is the mr frank complaining about in terms of appeal ability well let me ask you this of i'm not going to focus on your belly i've just going to focus on sort of a practical use of this is it  a practical resolution that district courts in the future when anytime side to side prey distribution exceeds the class distribution that's a red flag of of sorts i mean here it is a little extraordinary but is that is not something that's workable or i guess part of the problem is when you know i mean mr mr fry talks about the million dollar cash fund for the class and obviously when you have that kind of of a set up you know that there's going to be a cypre award you can talk about who the recipients  at the time of the approval that it was going to be larger than the payments and at the final approval not not at the time of the settlement agreement well not at the time that the solomon agreement was negotiated inside not at the time that the notice w when the judge has to make that decision need you know that initial approval is supposed to be a very cursory look there's no i mean the law is very clear on that there's but that doesn't mean that you're stuck with it that's why you have another hearing of course and if there thought that there were a problem she would have obviously not approved the settlement because that would have been what her option the cases of under half i believe where you have a coupon settlement we don't have coupon settlement here we have a cash settlement so we know with the with of what the fund is the only of the only question is how was it ultimately going to be distributed i think that no one at any point thought prior to seeing with the claims as they came in by the settlement hearing anybody thought any time that the would be larger than life although it seemed as if at the time the judge brody made the high estimate of eight million that looks like it's a fact though you've got a huge amount of aside great distribution to come and you haven't even notified anybody who that will be because perhaps the time you didn't even know who it will be well i don't think at the time your honor we didn't think it made sense to try to identify potential cypre recipients and get the court to approve that as part of the settlement because we didn't know whether there were going to be any and we didn't know what the settlement approval i mean you've got sort of a couple of moments then because as you said you you haven't seen this i've talked with others they haven't seen it that's correct we're in a different area than anything any of us have dealt with before or seem it was or to a certain extent your honor i would say that the while it's not quite that of that magnitude the l those with that kind of idea where unfortunately the number of claims that were made a less than anybody anticipated and there was an eleven million dollar settlement  knew this is the full extent of the claim and correct and obviously your abs are says not so here well the question here i guess on that issue judge greenway is whether paying five dollars to those who submitted a claim form without any substantiation that they actually purchased the product satisfies their claim if it does yeah that's  does then i don't think there's an issue with regard to the cypre recipients and i think i think and i think that mr frank kind of conceded that if there weren't  e here setting up a class or a subclass based on those without proof of purchase at some set number of small number to order the balance for fraud would be acceptable of the norm at the time that we signed the settlement agreement and i think it least providing a defense perspective i can tell you that you know we yielded relatively easily on the provision of the agreement concerning is dead and that is that that somehow it's more important what happens at the time of the initial approval then there is at the time of the final approval because as of the final approval everybody knew that there was going to be a huge cyber war and there still an opportunity at that point for an effort to to to say you know what you need to come up with a mechanism and the court could have simply ordered you all to say sit down and either renegotiate a five dollar cap or possibly consider you know reno to sing to the class to make it clear that the standards were not quite as strict as it might have appeared in the notice or to find more class members courts do that all the time i understand  and i think there's a couple of things in your question such statement first at the time of the final hearing the claims for it hadn't ended yet but it was far along and i think it's had been recently anticipated that we weren't going to get the know that we had all anticipated that the notice point i think is really a separate issue and the suggestion by mr frank is that the notice was faulty because it didn't specifically say that a photograph would have been acceptable and i think that that's really you know an argument without any merit if you look even to the federal rules of civil procedure when they talk about a within a document requesting rule thirty four it provides a litany of different types of things included among those things are photographs and other graphic images of the suggestion that you know other records wouldn't include a photograph i think this is just the faulty one so in deed i think that the fact that many claims i think came in for the five dollars suggest that people weren't  prevented in any way or discouraged from putting in claims well it was the aggregate amount of claims for the five dollars category three i'm not certain i think it's in the range of somewhere north of thirty thousand is my understanding so that only goes roughly one hundred fifty two hundred sixty thousand dollars total correct your honor so i don't think those folks were discouraged and i think that the reality in terms of assessing that five dollar point when we negotiate was you know there was some sentiment towards not providing anything in the settlement for those who couldn't document their claim which is not an unreasonable position i think on that likely would have been approved by the court in which case we wouldn't be here another point of view  is and this is a defense point of view is perhaps if we had set up an agreement that said we'll pay you no trouble damages for anybody who can document the claim and we'll get five dollars anybody who will swear that they actually purchased the product and will pay whatever attorneys fees the awards right i don't think we'd be here today right because it's just the cypre issue which suggests to me that you know perhaps plaintiffs counsel and it pains me a bit to say something that a really good job in getting us to pay as much as we did because candidly none of us expected the circumstance that presently exists to be the case we just would never of interest of had that of from from your perspective it's not a situation in which the question of whether you have to pay more money it's really a question of the allocation o pay that's correct your honor but it's also a question of what we would agree to and what we did agree to and why we don't want to encourage fraudulent claims that the people who are getting money are my clients customers right these are the folks in order to be eligible for a claim you have a purchased one of these particular products added to his or us or babies or store online so we feel good about the fact that as part of the settlement money is going to our customers cypress would be not if not nonexistent certainly nothing that we talk about you know that the classes would probably be you know north of fifteen sixteen million and this would be an issue that's exactly correct and we went through it all labrat i mean if you're out of that had the misfortune to read through the allocation order we spent a tremendous amount of time on that which involved essentially a determination that if there wasn't enough money in one of the settlement classes how money might be allocated from another settlement class to make sure that everybody ended up with something close to the same percentage we could have that's but that i think i getting through what judge o'malley has been asking about that is if certain assumptions are made you get to that point in time when everybody now sees where the numbers are shouldn't that have been the moment don't understand the question i think the i think the answer is no to tell you why because i think an assessment was made in connection with the negotiations that a fair resolution for the class would involve a maximum of those who could document their claim and a maximum of a five dollar distribution for each settlement class that somebody who couldn't document their claim would get and end of the day right the fact that there are these additional funds doesn't mean that anybody else any of those who put in claim should get a windfall so then the question is and you see this in a lot of the case law how do you benefit the absent class members because we know that there are a lot of people out there were you know i don't think one point three million is the right number for class members i think it's actually substantially in excess that we would identify that number of people with addresses that we could write to but there were many more people from prior years that we didn't have that information for so we know that this is you know probably a couple million people out there and how do we benefit them too because they were members of the class and that's what the cypre remedy is the zine to achieve and the question is as a matter of preference right do you put the money in  cypre to give the money to cypre recipient or series of recipients that could benefit all those people or do you give those who were just going to get five dollars for settlement class and more money first for some other reason just because there's extra money available and  i don't think that there's any error of law the judge brody made even understanding as of the time of the settlement final settlement hearing that it was very likely that we're going to have this disproportion if you well i don't think it's a wrong decision under the law to say this is a fair reason want to adequate settlement by providing that those with documented claims get x those without get y and the remainder is going to go to charity for absent class members is not an appropriate resolution well why don't you help us with a line drawing from that right if you think that this sort this this proportion is acceptable would a proportion where the class members got four million for instance and the psych rate distribution was sixteen million would that be reasonable there's got to be some point at which the proportion among the  skewed and there has to be a recalculation i'm not i'm not sure that that's all your honor now tell you why i think there are settlements and you know they've been you know approved at the appellate level that really essentially provide that there's a remedy and there's funds in the funds don't go to the class for save the funds go entirely to cypre recipients and that's considered ok under certain circumstances where you can identify the class members or it describes isn't necessarily a requirement i haven't seen any cases that set forth the requirement that the amount that actually gets distributed as opposed to the amount that goes to cypre must be in a certain ratio i mean you know  i get and i think we all do here that this is out of the norm because we have none of us all of whom are experienced haven't seen a case quite as extreme as this and in that respect but you know my view was and this was a matter that we negotiated at the time i mean you know not that it you know matters in any meaningful way but the issue of the whether to give these folks five dollars was something that we negotiated hard and long about and candidly i think on the defense side most of us was  entirely we felt by all means give those who didn't document their claims everything that they're entitled to but those who can't document their claim shouldn't get anything but i think giving them something shouldn't then open the door to  say that you know it's you know it's an unfair settlement because a lot of money is going to charity let me ask you this as of today what is the anticipated amount that you think is a range for payout to the class members my understanding your honor and i just saw some figures this morning i haven't had a chance to study them but i believe it's slightly under three million dollars is my understanding likely under three million dollars and now i don't think that's not just so your honor understands i don't think that's a final number because this is a procedure that our settlement provides for in which a class administrator or the claims administrator is to report that back fourteen and that leaves seventeen million for cypre and maybe the thirty five million is the right number to settle let's assume it is the question then becomes and i think it's the point that just about has been probing or what could have been done at the time of the final approval of the settlement that could have made the numbers less glaring in terms of their contrast such as giving more to the five to five dollars giving ten or fifteen or twenty not going to be that much difference in terms of the fraud that may come out probably none what about a reno to sing to the class what about making the procedures otherwise easier to prove under category one or two you know and the other thing you can think of why wasn't that done or propose i can see why something wasn't done other than you know it wasn't it wasn't on our plate it really wasn't suggested plus i think that the you know the objections that we received weren't quite as pointed as the place that we are now i don't think there was a suggestion that we needed to notice again and remember we're at that point where we still have i think about three weeks to go in the notice period and lots of people a procrastinator and we didn't know how many were going to come in between those two points in time but obviously we weren't going to get to a level that was going to be very very high we anticipated that but we didn't talk about it wasn't suggested and we didn't really consider doing something along those lines you know hindsight is so if we were to send it back you would get that opportunity i think that's right around but the question is you know should that be the case should should that should it be that in a class action settlement context right where i mean nobody claims that the notice program was not properly set up was ineffective well mr praed is saying that he does object photograph issue but i don't think there's anything in the record that suggests that either of those of missions if you will have any bearing on the number of claims that were filed i can imagine that somebody wouldn't file a claim because they didn't know where  funds might go if cypre funds were going to be in the picture at all i don't think that that's a reasonable rational decision in terms of the photograph issue sure i think that it's possible that you know if if the resolution where that you could just take a picture of your product and get more than the five dollars maybe other folks would have done it but that wasn't what was said at the hearing that's not what any of our understandings are mean is it possible that a photograph you know could have show that you see but that's close enough but the average just you know being in the park and taking a picture of a stroller that doesn't get you any more than your signed affidavit so i don't know if there was a serial number on it or what if you have are heard on it i mean there's all kinds of things that could be identifying information  that's true but that you know there's no reason that wouldn't be another record that showed you know under the terms that are set forth both in the in the notice and in the claim form which says that other records would be acceptable but show you know that you purchased it from babies or us or toys or us and when you purchased it well it's i think you're missing the examples point here and that is that even if you objective really thought that that notice was ok the first time around by the time you got to the final settlement hearing you realized that not many people responded and so the question is maybe at that point you should have said we need to see and i notice that is a little more broad a little more inclusive encourages people to make claims that's the whole point of these class action settlement is to encourage the class to participate i understand that your honor i think we've got you know somewhere between forty and fifty thousand claims so obviously a lot of people understood the claim form we're able to fill it out and send it in properly you know the plaintiffs and gauged the claims administrator who was expert in class notification programs put in an affidavit and connection with the approval process and explained why we were to take all the steps that we did which included a mailing included publication include all kinds of you know what i call cutting edge internet advertisements that that i had never been part of before that would design to essentially reach north of eighty percent of  class and was designed to get the greatest result possible so that while i think that mr frank objects to certain things that were not in the physical notice itself i don't think he objects and he didn't object hearing to the process the way it was set up and structured to and designed to to get the that the best yield possible i don't think any of us know why people didn't you know respond in greater quantities and they actually did but you know fifty thousand in most cases is not a terrible you know it just so happens that this case involves a class size that is appreciably larger and i think everybody was surprised at the result what is the aggregate number of the future to class i'm not sure your honor i know that people of then did about one point thank you your honor and i certainly promised that if they had come to the just report of a settlement that paid the class under three million dollars all the attorneys got fourteen million we would be here today also so the cycle did not of the amount that goes to the council expended within the firm here it's not a multiple it's it's thirty seven percent well your honor as centered indicated 's correct and so this case is you know in terms of the percentage it's i mean the blink responses this is this is easily a firm  from you know what you have to take that out of the equation and in this case let's say the numbers were million and probably you you know twenty some million that you might want to take but that's what i thought you were saying that that is certainly what we're saying that there needs to be a correspondence and we're just asking for what did you sign a lot of cases about the percentage of the fund and that that should be it you should look to the percentage the recovery but you don't cite any cases for the proposition that i pray is to be removed from the recovery well we're not saying remove it from the recovery we're saying counted at they negotiated a deal with a rational method of coming up with what they believe the size of the class would be and then what the yield would be based on those assumptions well are you saying that all of their assumptions were faulty and because they were all the that's why they should we know their assumptions were faulty we see that there's less than three million dollars in claims and you can expect that when you force class members to fill out a four page form that gives misleading instructions and i ask you to read part two one page two seventy six of the appendix you know other records that show you purchased the baby product and when the purchase was made there's no way you get a photograph from that  we they're going back and forth on whether a photograph does count and if they're saying that a photograph doesn't count then we have a reversible error because the judge said that someone was fair because the class members could retroactively submit a photograph and say you go to another million dollars now is it your point that at that point the excess that shouldn't go to cypre there should be a recalculation among those  class members who've made claims or at that point would just say ok we've had our piece we think that it's worked and of that amount is to go to  cypre our only question is we want notice of who it is that what i'm saying is that we want class council to be incentivized to argue for the cleanest easiest notice in claims process possible hypothetical but certainly on rename and if you give the instruction class council's payment will be based on the percentage of the recovery with a discount for cypre i think we'll see class council suddenly arguing for simpler claim forms more noticed because now they will be incentivized to make sure that the money is going to their clients rather than to their favorite charity ironically we reduce wrath parents of the war and we can't have any more class members in the five prior wars right very quickly you asked me where we raise the stuff in our briefing pages twelve to thirteen and thirty nine to forty seven in our opening grief in pages one thousand to twenty four in our reply brief and if i can make just one other point in this country we send people to prison based on the testimony under oath of people who say that they were victims of crime and to say that a statement under perjury in the course of filling out a four page claim form is insufficient to make a hundred dollar claim of a class action just i think that's that's very surprising thank you very much thank you i think you do all counsel well presented argument