to the point excuse in this particular case that didn't happen what was candor was a sum so the love well hundred seventy five dollars out of which the defendant said two hundred sixteen dollars your clients now whether those invented misses were properly measured or is that a factor since the waiver seemed to withstand to those invented misses not simply we won't talk about your your your wife brief because that may very well have preceded the supreme court decision barbara but that portion and yellow brief that discusses the excessive because it looked at the monies lien that was attached to the complaint and decided that he could tender one third of the relief that it other early that was pending and it calculated that to be rounded up to two hundred sixteen dollars well we're claiming is that we if be agreement with the client said that the case would proceed under a fee shifting statute and we would seek to recover the hourly fees from the defendant and the wa that was sued purpose of the lien being filed is to make sure that the lawyers aren't cut out that process i'm not clear on what you're signing but don't take my my lack of clarity to be a that the client's claim was not moot i would differ in question i understand your argument to be in part that the defendant was not entitled to rely on the attorneys we determine the amount of the fees that the case whatever indication was there as to the amount of fees claimed and how all without certainty in that regard would anybody ever be able to give a complete tender they were that they were they should do is tender reasonable fees and then not to be determined by the court and they view they have to submit to the court the authority to determine what reasonable fees are without knowing in advance what you are claiming unless they want ask us i mean mess gets admitted they could have asked us in a dance why are you going to play and do that but if they want to move the case without asking us what the fees are then what they have to do is offer to pay reasonable fees  lawyers one happy with fees that they are awarded the worst before of course appealed to feel bored but the underlying case would be all and that would constitute a tender even though it's still subject to offer there litigation haps the fees and there's nothing in a lot on the shifting that allows the fia grimmett between the client and the oilers to camp that and we say no it's cases there are no cases dealing with this issue in the lean area and we think the reason for that is because it's just not appropriate here so we submit is that what should have happened here was that reasonable fee should have been tendered if they wanted to move the case and  at the very worst the only thing that could happen here would be to return this to a trial court just to make it clear we're not the ones on the team he'd issue but a word i take it from your comments we're all recognizing that that's the only viable shoe left in this deal and i agree and i agree so that at the very worst if you disagree with the sentiment explain why why i believe you should agree with us that the tender was was more than sufficient at the very tender you are saying to them i tender is conditioned to these facts and one of them is that your fees are two hundred and sixteen dollars in this case now i'm sure that the interests of your client are such that you was well there's a fallback position to have the possibility of having it returned to the trial court and having the fee issue contested and the efficacy of your tender not affected but there is at least an argument being raised that if you seek to use this process of a tender you must do it completely and to do it completely at least without holding out the possibility of having reasonable fees determined by the court as a condition or as a portion of your tender that you have not given a full well i  produce documents it took them over a year to finish their production there was no offer no offer of attorneys fees and the plaintiff objected to that and then the court ruled that the the case was mo think you know in addition the fact that that the worst that could happen would be a return to the trial court for a determination this ancillary issue of attorney's fees i think if we look straight issue we'll see that they got more attorneys fees than they were entitled to and there's two basic reasons for that first of all this was not a successful action the step that would give rise to a right to attorneys that the the the statute shall be liable in the case of a successful action to enforce said liability for the costs of the action together with attorneys fees so that the statute requires a successful action and as part of that that there be a unexpected eventuality as opposed to opt out of the statutory language allowing an interpretation that if the fee is out but i i do think that if there is no finding of blood bill if there is no education of there's no judgment on the merits there's no entry of a consent decree there simply a certification does not seem terribly reasonable and when it's not reasonable the statute gets looked at very closely a few a few points in response first of all the rule in barber applies to instances of tender made for the most requests for patients is even filed so that the the concerned about the substantial litigation investment of time doesn't fall into that principle and it really doesn't apply to this particular instance where the tender was made right away second of all you see right away but let me i'm sorry to interrupt but here we also have this part of the record in this case that there was an additional complaint this isn't where we're somebody gets blindsided at a corporation by somebody popping up maybe really as a corporation no this person exists and they file a class action and i gotcha this is a situation where there was a did it mishal complaint and according to the record two years of negotiations during which period of time the defense corp defendant corporation took the position that it wasn't going to settle  and that they weren't going to satisfy the claim of this individual and then a lawsuit is filed and then after the lawsuit is filed this two hundred sixteen dollars legal fee tender comes up if we were to accept the position you're taking as justice gordon alluded to the reasonableness of the circumstance wouldn't we be creating a situation as it were a roadmap for corporations to be encouraging them to stonewall over a period of time then pick off the claim with a with a nominal legal fee based upon the amount of the individual claim and building a huge disincentive for any attorney if you even get involved in a claim of this nature there by insulating the corporation in some other case i'm not talking about this one from ever having the propriety of this policy that was invoked ever challenged in court i don't think so i think barbara protects against that and the reason is that a corporation would be taking a significant risk by doing that because once the s filed surely after barbara plaintiff's counsel will be filing a motion that certification on the very first or second day of the proceeding at that point the interests of the putative class will be before the court and and and then you know in the sense that it will be protected against that so i don't think that this is just uphill one of the last vestiges of pre budget well perhaps it's certainly a case in which there was a there was a time rumor the compaq computer it's a two thousand and two case and that case recognised that the catalyst theory that you know a settlement was brought about by an action  somebody did something of a voluntary action to conform to what the plaintiff wanted and that the action was the catalyst for that that that that that has been rejected as a basis to deem somebody our view that the fees were not hold at all the two sixteen was done in an abundance of caution based on the best that we could discern from the record which was that they had a claim for fees of a third of the recover buy this i would do the same thing again actually i think it was a perfectly appropriate and and in fact as i said over abundant offer respectful and you know respectful it was it was there was no there was no fees are going to step it's not successful action there's no proper catalyst theory to get attorneys fees and and i think they were looking to ultimately to the common fund to get their feet that's that's what this case was about they're hoping to generate a class  buckhannon situation was that someone had sued the state i believe of west virginia over something to do with nursing home regulations and in the course of the lawsuit the legislature amended whatever the