ability to adequately represent p s ice interest with regard to the money to a component we submit that the money to a component of nine hundred and thirty seven thousand five hundred dollars route because he does destroy diversity as an intervenor and you had filed a suit in illinois state court challenging these actions and i understand the illinois court dismissed as duplicative but was there no other route i mean you didn't highlight your lack exist at the time the suit was filed your client was pursuing that a geisha in an illinois state court so i'm just wondering why aurora gets you into court well overall the the idea is that we could have filed a lawsuit in and we're intervenor in this context where that's not the role of a r word doesn't say indispensable party it says when the claim didn't arise until after the suit was already filed in aurora intervenor wouldn't have been able to the claim any other way because the claimed in a rise until the suit was underway and i'm asking why that rule applies to your client whether whether or not mr mcfadden appears in a different port sure following my question i mean you have two ways you could be in the suit one is there for a place you and you so really haven't explained to me why it does the nd is if our fellows are role is no longer good after the supreme court's decision to pay the one hundred dollars plus one thousand dollars in defense costs and the district court also did not have sufficient information to evaluate the value of the underlying planes because at the time of final approval there is no information with regard to your size exposure to the securities in force indictment against mr y master and the whistle blower action or still ongoing at the time and even if you consider the merits of the value of the one hundred dollars plus one thousand dollars in this million dollars and p s i have suffered millions of dollars in increased find financing costs and the defense cost in the security for class action that has lasted for several years and mr year at least and in the hearing below even that is conceded that the audit committee was meeting very frequently already that is only a window dressing that is only a window dressing these window dressing measures are you saying that the seven hundred and seventeen this to seventeen is that right there's seventeen corporate governance reforms and those are you saying they were already in existence many of them met merits of the i'm under line lawsuit and here the underlying lawsuit is meritorious because we have an accounting fraud where the company has to say you're saying that that demand that the plan is fair to make a consider considering the underlying merits of the lawsuit and here we have new accounting fraud the company has to restate three years of this financial results we have a criminal indictment we have good morning may it please to the court i represent the company and the director defendants who joined the company's board after two thousand and seventeen none of these individuals were on the board at the time of the alleged at wrongdoing in this case and in fact at the time the plaintiffs filed their amended complaint a majority of the company's board was comprised of new directors were not on the board at the time of the electorate wrongdoing case the plaintiffs in this case did not allege that they suffered any individual injury instead they were seeking to bring the claim on the company's behalf take control of this lawsuit away from the company's board in order for the suit to have moved forward the plaintiffs would have been required to plead with particularity that a demand on the board was excused because a majority of the board was conflicted with respect to the matters at issue for the math reasons that creates a problem for the plaintiffs in terms of being able to plead that a piece suit demand on the board was excused so to the extent that you defined the problem as whether you have a conflicted majority of to rector's you by definition cannot have a conflicted majority of directors when those directors were not on the board at the time of the wrongdoing and as a result under federal rule of civil procedure twenty three point one this case could not have moved forward and it continued to be the case that at the time of the settlement of this matter the fast majority of the board was comprised of individuals who had nothing whatsoever to do with the matters that issue because they were not on the board at the time nonetheless the board concluded in the exercise of its business judgment that the settlement of this case was in the company's best interest for a few reasons number one the board believed that the settlement consideration was beneficial to the company number two the settlement prot and and to the spa suit and that was good for a few reasons number one the company was obligated to pay the defense fees of all of the individual defendants in this case the settlement put a stop to that expands number to the settlement prot a definitive conclusion to this case and this is a company that's trying to move on from the matters at issue the southern circuit has recognized over and over again that a rift of cases exact a real toll on companies and the settlement sufficient and looked at every aspect of this before we signed off on it but it's also because the neutral board who had nothing to do with the matters at issue here believes that this settlement was in the company's best interest this  specifically held in the united founder's case that with regard to a derivative settlement the business judgment of the court is not to be substituted for thought if the parties whose business is involved that's incredibly important in this case this case is completely different from a class action matter where you have individual claims that are being compromised and you have absent class members who are not appearing in court instead your honor is have the company whose rights are being compromised right here in the courtroom in front of you just a stretch durcan did and the stench of the disinterested board who is responsible for the stewardship of this company made a judgment that this settlement is and the company's best interest address the jurisdictional point your honor i'm happy to do so i know that there was a lot of focus on aurora i actually think that there are some threshold questions that we have to go to before we even got to roar out so i think there's a  derivative case the court only looks to the citizenship of the lead plaintiffs and it ignores the citizens the citizenship of every other stock holder now in this case mr mcfadden obvious to obviously isn't intervener it's not a lead rule twenty four i think it's a little bit of an odd construct frankly i have to say i find the one thousand decision a little bit odd because i think rule twenty four is a bit ill suited for purposes of someone who's seeking to intervene it i think it's an open question i do think that rule twenty four is a little bit ill suited for those purpose it seems to be you know it's to set up in terms of a dichotomy between intervener plaintiffs and intervener defendant at least have an argument that maybe he was intervening for purposes of trying to be a plaintiff he did ask judge dirk and both to reject the subtle men as well as to substitute him as the plaintiff so i think it's of getting back to the merits of the settlement and still gave careful consideration to mr mcfadden's objection and his decision approving the settlement can only be refers to upon a clear showing that he was guilty of an abuse of mr mcfadden also doesn't argue that judge jury and correctly analyzed that question and given that there's no way that the merits of this case would ever have been reached mr mcfadden also raised a new argument on reply which was even if the complaint would have been dismissed for failure to plead to me and futility the port erred because it could have granted leave time and but any amount of complaint would have suffered from the  consisted of individuals who weren't even on the board at the time of the wrongdoing at issue and so his problem isn't solved mr mcfadden nd argument is that charged are going to his discretion because the settlement consideration allegedly was insufficient that argument likewise fails for several reasons to be done with judge derek and recognized the likelihood that this case would have been dismissed that any recovery was better than nothing moreover as discussed has recognized that it should not substitute its business judgment for that of the board but that is exactly what mr mcfadden the seeking to do with regard to the monetary contribution mr mcfadden complains about the fact that it was your marked for defense costs but he does not dispute judge perkins confusion that because money is fungible a savings to the company is the same thing as a benefit to the company and started his real complaint seems to be that he would have preferred for the money to be used for a different breed that's had a twenty one and a twenty two regardless i think his briefing on appeal makes clear that his only complaint has to do with two of the seventeen reforms his primary argument is that these were things that the company was disinterested board in this regard my time is almost up unless your honour's have any questions of your ms you are thank this its discretion and finding that the plaintiff pallies were adequate representatives of the company and distributive suit it's a bit of a circular argument that depends entirely on this court finding that the district judge determining that they were inadequate representatives the only other aspect of the settlement that mr maher did not address is the reasonable in this appeal the contention that the settlement was inadequate because of the attorney's fees provision was fully vetted by the district judge based on a full some inquiry both at the clinton area approval hearing and the final approval hearing the district judge properly rejected the notion that there that the f was inappropriate and anyway in overruling the appellant's objection and for good reason the record established that the settlement checks all the boxes of the fair reasonable and adequate settlement it was in the go sheeted only after the substance of terms of the settlement were agreed to it was blessed by a well respected mediator who guided the parties to the settlement and then after the settlement terms were agreed to guide the parties on the amount of the attorney's fees supported by a lodestar cross check which was cut off at the time of the stipulation of settlement and represented a multiplier of only one dollar that there were only two objections to this settlement and only one of the objectors appealed from the district judge ruling thanks that and specifically the district judge noted that i think that's a fair compensation for what i have said repeatedly is an excellent result for the company there is nothing in the record to demonstrate that the district judge abused its discretion in the king that finding your position is that the fact that it's fifty percent of the settlement goes to journeys to be used that we should look at the potential savings to the companies that is that the focus we should and also the fact that the settlement comprised the seventeen corporate governance reforms as well where the and the many derivative salmond's have no monetary component at all and if we had gone to the court with the settlement without any mana kit monetary component we believe that  have a sufficient basis to the side on the monetary value of the settlement so and the money did you offer did you are for it all to an alternative figure in that area we have submit it the numbers that  court did not have was that the fence caused in the underlying f c c enforcement action which at this moment is still going on the sentiment of the whistleblower action that was still going on at the time of final