touch upon here with regard to those issues there are three main issues the first is that rule one twenty one seven applies in this case the second is that the p p d expenses should not be taken out of the settlement and then third issue is that rule twenty three h was violated with regard to rule one twenty one seven that rule applies to contingency fee cases involving tort as opposed to the gross conflict with route twenty three h and that's really what the reason for bringing the statute to bear is it is true that if it were purpose and that's the that's the primary purpose of that actually said that it's it's there to protect the client because of be an equally bad meaning power between the attorney and the client now doesn't that wasn't a class action case was nor was it was a personal injury case isn't it isn't that a and when you when you look at whether or not something conflicts you have to see whether or not you could apply the two of them at the same time and if you cannot apply that to whether eight twenty three h and new jersey court rule at the same time then there would be a conflict and if there is a conflict then i would say that rule twenty three h goes to procedural would apply but also in this case if you think about it that the rule actually mandates that the new jersey court rule applies to the district of new jersey is wro so the new jersey supreme court has said that the court rule applies to new jersey admitted attorneys in the state courts and in the federal courts jersey so i don't think there's any conflict between the court rule and rule twenty three  as it was required under rule twenty three that ne amount of fees were reasonable well there's three reasons why that's improper first of all that enhanced it going from twenty five to essentially twenty nine percent occurred in a particular issue there's only two ways to get attorneys she's in a class action in this circuit and that's through either lodestar or a percentage of the recovery so that dollar amount is actually based on a twenty five percent recovery off the gross b same yet your position is there should have been a really notification on that issue well i believe it violates twenty room twenty three h that there was not a rumor of occasion so you know vacation was mended and it could have been on the web site doesn't mean they have to send a postcard notice that would be in for that expense but more importantly what's the reason for bone from twenty five percent to twenty nine percent it's to circumvent the new jersey court rule and this quick access a fiduciary to the class and  r issue but honeywell and and p p g did was conspire to misrepresent the extent of contamination and the risk that that's all they said but the  and have the money to pay out here in fact they said they said that they had plenty of cash to pay off that if there was a judgment against them they're experienced everybody knows that when you hire an expert the expert giving an expert report based on specific things so if you're going to have a lost property value claim and we west side it's not going to take into account anything happening on the side if you have a grass problem value claim for that public hearing and i ask less council about their experts doing any testing on the class property related to their original system and he totally open mike to everybody  experts did no protesting of anybody's property so i'm at a loss in how they spend seven hundred thousand dollars on experts in ben why you can't separate what those experts did for p p g e and here i believe that the circumstances here the other thing is true is the expert report there was no expert report for damage analysis whatsoever there were absolutely no expert reports produced for the final proof hearing and it's access counsel said that they were not going to be producing a damage expert analysis because that would ensure class big so if you're going to withhold a damage report for the benefit of another class how can honeywell's how can the class ensley be charged for that there was report if it's actually benefiting  i don't believe that they would have done that if the district will finish when a camera review but they're in camera view review doesn't doesn't satisfy doesn't satisfy the rule twenty each violation because as as i showed the district court representations of equipped with this records and nothing would even reference it in her opinion and then if you take a look at that at the claims of newsreaders bill something like almost eight hundred thousand dollars for nothing rather than quality assurance another fifty thousand dollars for the recovery in the case were two million dollars or less under the bridge and that existed at the time this case was originally filed it's now three million dollars or less in new jersey there's a stagger staggered provision the way the figure is calculated is it's calculated on the net recovery and that makes a difference because you get thirty three to thirty percent if it's the gross you get more fee if it's the net we get less we at the thirty three or thirty percent level but that statute provides both in subsection c five and in subsection f that if the attorneys feel that the fee is not adequate they should ask for a reasonable fee in the court decide whether it's reasonable that's exactly the same standard as applies under twenty three h so in the original notice the right to the class regarding what the fee would be we indicated we wanted with see roughly two and a half million dollars we then explained that it was reasonable because it was twenty five percent of the gross which is what the district court applied and what this court has retreated to be applied in class action cases you look at the gross recovery later when counsel raise an issue well but you should have calculated it on the basis of the net we explained that if you calculated on the basis of the net we would still have a rea fee it was an adult and a percentage that was well within the range that this court and other courts have recognized except a bow and class action cases when the amounts recovered were say under one hundred million dollars no factors is the authorizing of attorney's fees is that substantive so you apply state law or is it procedural ideas they do makes a difference i get it right no no at first i thought it was substantive ok because there is a court case in which the court was asked to answer that very question whether or not fees were substantive or procedural but in ended we have a unique version of diversity here it's not complete diversity it's the special kaffir diversity in that case we would look to the state law for substance and we look to the federal law for procedure present a brief as to why i think that earlier decision to call that substantive is incorrect but for the moment let's assume that it is substantive even if it's obscene what makes attorneys fees procedural what makes them procedural it in my judgment is that under the federal rule they come up as a provision that relates to how you calculate the fee of the attorney in  process twenty three h is a process provision so in that sense i would see it as a procedural rule rather than a substantive but as as i said and candidly had not really prepared to address wanted we did and we used twenty five percent and later the twenty eight point seven percent and then even the road star all of which were designed to show why two and a half million was a reasonable number counsel it could be it could also be that that provision is related to those statutes that outfit shifting statutes which we don't have involved here there are a whole group of federal and state laws that include fifty three shifting sections and that to be reasonable so if any jersey were pass a statute in saying that and there no under no exception attorneys fees and a class action involving common fun either in federal either in a diversity case or a cafe case in federal court or class action state court could not be more than five percent of the common fund what if what is your  i tried to avoid getting fascinated and tried to stay focused so i would go back to the fact i don't think it matters but my my my gut tells me i think it's percent true could you address costs yes yes but i believe that argument is based on a profound misunderstanding of what this case is about so people the moment to sort of put it into context this case started because the government the area of jersey city as heavily contaminated with chromium and known human carcinogen and the government health agency to agency for toxic substances  registry prepared a report that found eight co incidence a correlation between where people live and where dump sites across them were located in jersey city major producers of chrome in that area because they run essentially the same factories they just competitors producing the same product we spend to shoot him out of time and determine how much crow could have been released from both sides they looked at aerial photographs they looked at historical records and of course we took discovery and tried to get documents from honey p gee that would tell us how much chrome did you produce where did you send the chrome wastes after you did with production they fought as extensively on that we did a lot of motions practice on that we did a lot of discovery disputes over that and that work was based upon trying to find out that honeywell and p p g used the same sites to gunther waste so that stage of the case which was for the first couple years we believe that these two companies which refused to tell us where they dumped their waste and led us to believe that they were cool wrinkled but we were doing research on two companies that was simultaneously dumping that were really at risk this was thanks to the work of our experts so we narrowed the number of dump sites down from one hundred forty five to twenty seven i think and secondly but we could not find any direct evidence even of the defendants have told us that they had been using the sites jointly that they actually did and finally they said no we didn't we didn't call me go to bed didn't come up until the end of twenty thirteen at that point in time in january twenty third prepare complaint that recognize that it was probably separate damage to the classic a and c from honeywell and class b from p p g as a result of the dump sites and as a result of their production facilities now at that point if you look and we indicated this in our filings expert fees which are by far the largest number i mean out of the total amount of money that was g's contribution to the contamination that was going on in the area where that class was residing we took that money out of the cost we did not include that money in the cause but until we were at that point in discovery and into our expertise and guided us we didn't know whether or not these two companies were jointly causing the problem at these areas like shouldn't there have been some portion of the of the court that if and when we are successful in recovering money from p g we would then approach the district court at that time to allocate a portion of these costs to the p p g resolution and we would then have a fund money that we would be able to equitably distribute back to the a and c class but unless and until that happens all that money that was spent that to some extent was investigating p activities was for the benefit of the a and c class so it wasn't that it was of no benefit to them and only a better fit to class me on top of that the central issue in the case is it's now  evolved as we finally were able to reach it with the settlement with honeywell is a primary source of the contamination is quick action activity rather than dumping activity the production activity means how much of the chrome out of the facilities where the calling was being processed honeywell and people g each and gauging essentially the same activity but their records were grossly inconsistent honeywill would tell how much stuff went up a particular stack but not the temperature of it p p g would tell us what the temperature was but not how much went up in order to do what's called an air dispersion model the a dispersion expert has to know the details of what actually goes up the stack what the size of each product will is what the temperature was when it goes up the stack what that tiny was was a day or night w dozens of stacks at both facilities each stack connected to a different piece of equipment they did something different in the process so we're looking at a combination of th impossible to not see the benefit to everybody a b and c of having all that data now could you try to split that up now could you now try to say ok a certain amount goes to g and a certain about goes to running well in theory yes but i would suggest that that would be a very dangerous and inappropriate course to take if this quarter were the district court on remember to tell us take thirty percent of the it costs that went to to this case up until now that you haven't already tried to be p g and assign them to people and later we get a settlement with p p g and a different court bound by what this court does because the class b is not party to this part of the litigation not bound by that tells us oh no it's not thirty percent it's only twenty percent then we're left having expended that money and not being able to recover it on the alternative the proposal that we put forward and the commitment we've made is if and when that case is resolved we will provide  it with what you just heard was that the honeywell class takes the contingent risk of a recovery in the p p g case if there's no recovery cooper who gets stuck with the entire loss of those expenses if they don't get to recover the much we're talking about with regard to those particular expresses that are being contested well the expenses right now over a million dollars so she slices down a little if they're truly indistinguishable and you can't a pushing them equally through some some measure of using a fine cold or whatever and then a portion of equally fifty fifty in the expenses would be in the neighborhood of somewhere five hundred to seven hundred thousand dollars and that the other issue that was it was asked of me but it was asked of the present council here whether or not eternal issue is procedural or substance sub's substantive the chinese feel issue is brought in state court so that that retainer agreement with qwest council is under new jersey law so when it gets removed the federal court that contract under the enabling rules is still valid that controls the contract between counsel and the client controls the procedural aspect of whatever the federal rules assume the procedure cannot overrule a a contract between the client and his