lawsuit in april two thousand and eleven and it was already investigating idle surging or flaring in certain ford vehicles indeed edward suit was filed specifically because of the ongoing inquiry and whil superseded in parallel actually focused on a different mechanical problem and ford separately addressed and resolved the actual problem through a customer service program that ford implemented in november of two thousand and twelve  ly i mean as i understand it what's there is not exactly a settlement is that right that's correct or not not exactly a solomon is the way to put it because this just didn't seem to think a whole lot of the claim to begin with and just backed off at that point but i think that's a slight overstate and i think that's it took it quite seriously and was investigating and looking at it it was an ongoing back and forth over how to resolve it i think over time as the direct evidence tells us became started to determined in mid two thousand and twelve that there needed to be a customer service program to further resolve the issues there was correspondence between ford and it's may in two thousand june of two thousand and twelve but he gets the nub of the problem here is the catalyst determination in so far as it turns on whether what was the cause or what were the reasons for for coming to this creating this customer service plan  very more and if it were revealed for clear are you'd have a hard row to hoe well i don't think so i mean i think there are plenty of cases that get reversed reclear error and the problem here ultimately will be when we talk about the facts there's essentially it but it wasn't persuasive to the judge either it wasn't persuasive to the right to the fact finder well i think first of all the judge is asking the wrong question this goes to the point about applying the correct legal standard i think the judge was saying you haven't  proven that the lawsuit wasn't a cause and there are there are other explanations good but your and your analysis seems to be that the minute you came forward with anything any person from went poof well not quite i mean the presumption does go poof that's that's the but what doesn't go poof what doesn't go poof is the fact the underlying fact it created the presumption i mean trick it says the presumption itself drops out and you then have to compare the evidence but the key is the presumption is what puts a burden of production on the defendant the somebody who knew about to do it and they meetings but didn't know wasn't at the decision making stage of why the program was put into effect he didn't he that's what i understand the right to destroy and to say and that's i don't think the court quite said that but it's clearly wrong i mean both mr and mr bomb said explicitly that they were not just around at ford they were both at the the recommendation for the c s p he made the decision to recommend it he was the one at a meeting to see say he'd made who's the decision maker the decision maker is one of the three high level feltham a decision person says approve it's literally just a checkbox just as a proof where is and and bomb are there when they're discussing at the meeting to the person going to make decisions why you should adopt this even the base right ira even if your narrative is correct the district judge kristen act which asked which is that the judge never said that he found mr out not credible it was a liar he did all he said was he didn't think ultimately was the decision maker understand this the judge says that's irrelevant the fact not disputed the judge's mis agree with this the undisputed fact afford always provides a broader remedies wanted up to c s p that is a fact all of us have to take is true the judge didn't say that was wrong was not something that it was was a percipient witness about so that he washed out and he didn't just credit the rest of what i thought was saying but he said that he wasn't in the right place at the right time to answer the right question or that part wrong or not to adopt it and then i will adopt it is not the same as the reason to adopt well i think they are it's really there's no evidence either side it is no evidence that there are some other mysterious reason in the mind of the person who checked i approve it exactly like to treat a case where the california court of appeal said as we're looking at this there's so much evidence on that side of the party rebutting the presumption the court must have been provided holding that party to a burden of proof not production and that would be legal error if that's how you read it is that so that's point one yet but ten general problem one general problem two is if you think the court did it right and was asking the question did the plaintiff prove her case and show that there was a causal connection here then it's clearly erroneous because there's essentially no evidence on their side the un contradicted direct evidence this is unlike chin it's a go to so for this one for number two you've got to get to clearly erroneous right what i'm saying yes what i'm saying is if if the court thinks so why are they clearly erroneous and why it's clearly erroneous is the only evidence on their side is the chronology which i think is meaningless here well it's only don't know it's meaningless surely you don't think it's meaningless it it i mean meaningless may be an overstatement but it's not a strong chronology like you had in chin for example all right it's a minimum chronology and what you have is direct evidence that's not contradicted and the dog that didn't bark is the absence of their direct evidence what you had in chin what you had to macdonald was actual evidence from the manufacturer saying here's why we did this program and in both cases that actual direct evidence included documents saying here but we don't think there's any error on this the court clearly got right the other side's position as i understand it becomes clear in their reply brief is that there's a requirement as a matter of law that the lodestar not account for any contingency risk that you just can't do it that way and the court erred in doing it that way and i don't see any case that supports that ketcham is to the contrary ketchum actually says explicitly when the court goes through the lodestar the next thing the court does is a quote should consider the degree to which the relevant market compensates for contingency risk so what ketchum is saying is when you look back at the lodestar in deciding whether or not to add a contingency multiple supplier one of the things you do is go back and figure out whether or not the lodestar used already accounts for contingency risk so ketchum is explicitly saying that you're allowed to do the thing they're explicitly rejecting the only argument understand them to be making that it was an error and abuse of discretion in making finding that board and some other reason so if i'm happy to summarize that i'll preface it with the concession that i'm happy to make we didn't come forward with direct evidence in the form of some smoking gun email and that's not unusual in these cases that a california how a court that read it is concerning this is a catalyst there and that it's theory that we're talking about it and it's also uncontested that this fix if i can use that shorthand this was under way  at that national highway that was already happening that's his strongest argument so i repeat what evidence is there ok let me let me take you through the chronology but i think i do need to well he  i think that's part of this but we have to keep in mind with the california supreme court guidance is here the district court is going to be close to and familiar with this with a geisha and and i think it's a mistake to try and isolate on any particular aspect ways i e and that you made specific demands of various points and which were not responded to and which were after the lawsuit was underway what else so and if i may i think it's very important to regulators and it's are looking into it at that point ford does not issue a warning to drivers saying hey this is a progressive problem people are complaining about it watch out for it it doesn't contact dealers and say you need to provide repairs for free because this is important to our customers it certainly doesn't offer any sort of reimbursements for repairs that are to exist now we file our lawsuit after serving a demand letter that went ignored several months into the law when it not for how long five we got in seven weeks several months into the lawsuit fairly early in the lawsuit ford issues the repair the repair is issued in october of two thousand and eleven that's a full year before the customer satisfaction program at that point there's no warning to drivers there's no on the timeline which when did you lose that class so we win that discovery motion and i believe it's february fourth has to produce those documents by march april which at that point we're already on file with classification the denial i think  is april may and at that point we come in reconsideration we marshal that evidence that we've uncovered that discovery motion and it's at that point that we have all this and a customer satisfaction program and to be clear on the style of class certification ford's asking this court to treat that as kind of the the end of the litigation we were on life support we weren't achieving anything the district court is the one that issued this order and it has a different understanding of its order it says no i did i said you could narrow your class definition and come back i didn't i didn't view that as this is a dead lawsuit with no future right but as i said or at least i've kept my hand i think this is a really close to issues that can you tell me what are your what are your strongest point i think this is i think the points other than telling us that we need to defer to the district court because it may be separate litigation i don't mean to use that term derisively but but i understand that so i think that starting  beginning the chronology is important the fact that ford had the impetus that that it's claiming was decisive way back in late twenty ten early twenty five and that didn't drive it to do anything at that point it already knew the federal regulators were looking into it already that's exactly right and that's a that's a major concession by ford in this case i'm just waiting for you to tick them off what are your strongest point but let's go with that i mean that's a very strong i mean that i say to spell it out is the highway traffic safety administration we know that count ok but it's not a consumer it's not a c f p bere the f t c and when it finds that there's no safety issue it has no parag have to continue putting pressure for a customer satisfaction program you don't have to take my word for that p district court ford told the district court that when it was defending the cost of the patient it said if and that's a doesn't find there to be a safety issue it's not going to pressure us to provide any relief i said a couple of times it seems to me very significant that the c s p is more robust than it record i find that says that the evidence that ford came forward with in opposition to our attorney if you motion was a document that said when there is a federally supervised safety recall which we didn't have in this case it's our practice as a company to provide repair reimbursement to did you have any contrary evidence to his assertion are you just telling me it's not it's his assertion is not supported it's assertion first of all didn't come at that stage it came later and yes there was no documentation in reconsideration order and she said that it was very specific about the fact that the races that were being used were from plaintiffs well off firms in contingent cases no that's absolutely right and i think there 's a really intuitive grasp there that's just actually a mistake which is a plaintiff contingency firms rates are not actually contingent rates that's that's the way the lodestar works in california when a plaintiff's firm even if it's a pure contingency law firm asks to be compensated in a lodestar case the rates that are used to compensate the are from our non contingent rates there are the rates that are supported in fee paying cases of equal complexity but the appropriate standard of  for this question i think it's abuse of discretion and so i was as an abuse of discretion given that your argument is that the district court was the one who really had the pizza finger on the pulse of this litigation and may have been influenced by the fact that the national highway trays  safety administration was already on this problem in just a week are you are we still focusing on the on the multiplier question at this point yes ok because you have to tell me that was an abuse of discretion right and to be frank if the district court had said i'm looking at the facts here i don't think there was a real contingency risk or i don't think this market that i'm familiar with really compensates for contingency risks on denying it if it had made factual findings contingency risk which is it isn't it isn't what it will why would i think that the district court appropriately thought it was a reduced risk given that this that your team didn't uncover this problem the federal government was already on it as i said already already pursuing the problem that wasn't i mean that's just not the district court's findings the debate it just seems to me really cut two ways that you want to say that the district court on the one hand really had its finger on the pulse of this litigation when we're talking about the other argument but one when we're talking about the lo plaintiff class action attorneys right right so why i mean you're saying sort of as a deus ex map another that that those were not contingency rates but why it was sold to stress about the fact that these were plaintiffs class actions attorneys i think that's where the district court just kind of made a very intuitive leap there but it's just wrong to contest that might mean no i don't contest that pla record needs to actually consider these facts what was the extent of the risk and doesn't need to be compensated if there are no other questions your honor thank you you thank  you mr ott does not appear to be in a position to speak to whether plaintiffs lawsuit was also a factor or to know of any other factors that initiated the process that lead led to the c s p they said merely desisted is jobs possibilities that is not any meeting that i attended that related to the c s p earlier in his in his declaration explains that he wasn't just somebody who regularly courted nitsa his function here was to work out the c s p in connection with notes and that's what he did and then he about the fact that none of the actual decision makers provided and the affidavit that the person for some reason the person who was chosen to provide an affidavit was not an actual decision maker he was have an observer of decision makers and and was at the meetings not not quite your honor because both thought and bomb are the people who explains to the person who checks off why they should do it but they know better than the decision makers just comes back to where we were half an hour ago and i said whose name was on that line right it's not and and i again i think you've done a great job here and does it to seem to be a very close call and i'm trying to figure out why the judge is wrong in doing what he did here so let me turn doesn't persuade he didn't think that was enough well  judge said i think this speaks for itself he said it wasn't a position to know but he was there when the when they said here's why you decision makers should adopt it plays no evidence of that he was there so i was there i don't mean to interrupt you but he's the guy who made the recommendation he's not the guy who took the box law what i'm saying is that there's no evidence and there wasn't some separate secret caucus later where the decision makers talked about the real reason the things he did not doing is answering my question and answer the question i wasn't going to check the box that's true right and that was really significant to the district court right and why is he wrong and it's wrong because the direct evidence tells us at the meeting when the decision was made the lawsuit wasn't discussed there's no evidence that when the decision makers at that meeting he in his mind said ah but the lawsuit that's the secret real reason i want to do that that's the kind of evidence they would need to a duce when the decision makers told the reasons you want to adopt this odd is the one telling him bomb is the one telling him there's no evidence of the decision maker that person at that meeting was ever told the lawsuit was a reason to adopt it so we know what the decision maker was looking at decision maker was looking at the reasons that and bomb were recommending it now if i can just turn briefly to  of the of the other the the ultimate remedy ought explains this to f d r number five page five what he says that if you are five is exactly what i represented when ford announces a voluntary safety program what's the problem why would he do this just for n h s t s a when they actually think there was a problem so the first one i literally don't even understand that what the judge means by it could or should have been done earlier what the evidence shows is we were working with there's a document there's a couple conference call in may and then a letter sent in june of two thousand and twelve where we're talking about the next thing that we're going to do and it's a still wasn't satisfied remember we had opted different programs in october and  that ninety four it's called a resume for reasons that are beyond me but it gets a goes through and explains what happened and says that ford's interim remedies weren't enough because they didn't abide advice customers and dealers were still confused about how to solve the problem raised was about whether it's could ultimately do something i think that closing document answers that nixon was still looking at this wasn't satisfied that there was no safety problem yet not anticipated that the reason they adopted this program was that i thought it would be