and it was some sort of evidence about how how many of those cases they actually are able to recover and how many they're not and the truth is goldberg goldberg tells you and they would have to show he could have made  money from doing something else and that would just more fees for doing this i think that would be one dollar way to do it sort of that would be the opportunity cost but i think there's also the sort of the portfolio risk that that is what is what the fresno county courts and to focus on i think that's true that if they came in and said well we could have worked on this hourly case where that somebody was going to pass a great deal of money and i think that would certainly be evidence that would probably be useful and probably be relevant but i think that what the court seems to be talking about is a more globalized what is your portfolio risk over your entire catalogue of cases and so i don't think that were investigative and judicial proceedings just like in the goldberg case the goldberger case pointed out well this is an atory is fraud there were investigations and there were criminal proceedings this is his objection down below it's in the record at e c f one hundred and twenty six dollars dash one page four here's the bald headed class counsel's fee should be limited to lodestar was the crux of his appeal down below that was to print the presumption that we should have been limited to our lodestar and the court could not grant us a few were based upon a reasonable percentage of the fund recovered we were late that you're not says that there should be specific reasons to depart from the star and fresno county while recognizing leeway to enhance the lodestar rejects a routine twenty five per judge told us that she viewed it as a complex case one in which she devoted a considerable amount of time to the efforts but it is not enough not on its own but th comment on ok go ahead and then our lodestar in the case was five million five hundred thousand dollars and a half a one million dollars in expenses not one penny of which was guaranteed to us and judge book wild correctly recognized that the case was a risky want to be to be brought in in the beginning in the st place several points to that number one we know it's a securities class action no matter what goldberg or this court said and goldberger some twenty years ago saying that securities class act about goldberger cited to an old law review article looking at a limited sample of just nine i p o cases and said that these cases are not very difficult to bring and they often settle well that may have been true of that small sample size but that is not true of the securities class actions as a rule since then we have seen scholarly economic analysis of securities class actions fully forty five percent of them are dismissed with prejudice another thirty percent of them are dismissed partially dismissed leaving only twenty five percent to go on to live for another day the district court i would like to point out this court in goldberger says that each one of these cases in which a few ward is given and i'm paraphrasing here they must be looked at upon their own merits it's a case by case analysis so here judge book wald was not necessarily locked into giving a multiplier of a certain amount although this court in wal mart said that a multiplier of three dollars was quote reasonable given the landscape of star multipliers out there which is has been his position all along in that is that we are to look to the supreme court's fee shifting cases with their natural skepticism towards enhancing any lodestar for risk for quality of result etc but that's not what happens in these common fund cases this court has said in goldberger and most recently reaffirmed late last year in fresno county that week cross check a reasonable percentage fee with a low start that lodestar does not have to be a straight unenhanced lodestar the percentage feet can equal can be less than los or it can be equal to it but it can be greater than it and what we do what we look to is what goldberger says we look to we look to the risk of the case and we look to the quality of the think only get to one which was it was musicals actions i'm interested in the church church and and one judge book all referred back to the difficulties in motion to dismiss i submit that was shorthand for covering all the issues in this their normal hourly rate is what they would be paid whether they win or lose given the cases these features that make it more challenging your compensation initial decision to take on the cases opposed to that's true that's guarantee of recovery in the sometimes hostile landscape that judge rajiv mentioned earlier where a lot of these cases are dismissed and i think the district courts reasoning in her field of the reasons is not one of the i believe he's trying to say that the the the that the fee the fee water could have been more explicit and i've got a few order here in front of me and she specifically makes findings and many of the findings go to both risk fund though we were at the very basement of eleven to twenty percent i believe in fresno county you are you are at thirty percent and it's it's not clear to any field ward it was those two paragraphs of the order those two paragraphs of the order would go to risk but then again yes but what he said would be true most securities cases with respect to risk to you telling us it's true of most securities cases now we're considerably outside what and but but in this case your honor let's not forget this is not an a securities class action taking place soley in the united states on the east coast or the west coast this is a securities class action that involves the horrendous accident over in brazil and yet the defendants here are based in australia the investigation that my friend mentioned earlier this is not this is not like goldberg where class council were able to piggyback so to speak on investigative efforts lodestar compensates you for all your work it's now that you want a premium on top of that and i'm not sure whether it's in cincinnati you're in sydney if you're compensated for your travelling your work hours and all i'm not sure that that factor weighs heavily in favor of a large oh a large hats two points number one that premium is based on an on a two prong analysis risk and result we pointed out that a fifty million dollars recovery here for the class was twenty percent of the estimated recoverable damages by any yardstick you use in modern securities class actions over the last two decades that is a fantastic recovery when ordinarily the ratio between those two numbers is one three to two six my nd point is that payments last for the person center understood and this is in the record and it's also in our briefing despite over three hundred and seventy five thousand dollars notices going out to the class this fantastic result our notice that we are going to seek up to thirty percent of the fee in the class notice produced one dollar objection to the fifty one dollars objection no institutional investor everybody was apparently very satisfied with the amount of money they were getting thank you your arms you're able to prevail in objecting to them it would not be surprising if they thought it wasn't worth their time yes judge lawyer we are definitely saying that the district court didn't do the make justified you could if there were any such comments i think the comments of the judge made in the hearing are very cryptic almost and not certainly don't rise to the level of explaining why such a high multiplier was necessary i mean we're talking about taking other individuals the individual in their institutional we have to brief this courts do not like to put much stake in that because if there is not a good reason to object to fees most of the time in the sense that it doesn't get you anywhere if you have a ten dollars or twenty dollars or one hundred dollars stake in the matter the premium the district courts as needed say more with that well more in the sense that the district court would need to recognize and identify why there should be a  case per hour for every single hour that attorney bill that that is necessary not just to help me but but to help subsequent courts to help all of us to understand why this  because this is as roger mentioned this is this is the class is money this is not this is money that belongs to the class and it was for their benefit so that explanation needs to be made to the class to other chords and for posterity and to help other courts make these feel words i think that is i think that is absolutely necessary and i think that the broad discretion that we talk about with with district courts when we say we give them very broad discretion on their fees we will not interrupt but it district court has come to a conclusion on a fee what is presupposed by that is that the district court has done a very good job of explaining it in the st place so in other words the district court has to exercise a discretion having exercised it that discretion we give to the district court a lot of deference we don't come in and say well as there's a figure the basically result was some to dismiss the overriding theme here is the failure to apply the proper standard to the motions to dismiss which should have been faxed as alleged in the complaint all reasonable inferences in favor of the to apply the law properly to the facts in multiple respects the defendants were actually asking the court this court not to apply the appropriate standard to their motions to dismiss and to view the allegations in the light most favorable to them or to accept a set of counter allegations a the enterprise is an association that in fact among which initially was among and between mr fitzgerald and mr we suit began and after the appeals for this suit began after the appeal was filed but before the television order was issued beyond being the winner the lower in show and whole blog as supporting its decisions to decision to apply the topic but those cases reflect the opposite of the timing report and show the court emphasized that there were no further state given the finding of the court's finding no jurisdiction of subject matter jurisdiction no consideration has been given to the plaintiff's rico allegations related to the honest services the preexisting conspiracy an agreement involves an independent claim as described in whole law i'll be at one f allegation of judicial corruption and exists in a more normal context like say terrorism so mr went took actions in december two  and fourteen which at the time were inexplicable and seemingly irrational for the arbitrator rejected the argument that he made this is all detailed in my various documents the arbitrator rejected his argument nevertheless mr cosell made the same and explicable and irrational arguments in his brief associated went and mr sell the baby it became apparent that they were connected let me put that differently when he took when he took his actions which was the creation of a fictional amendment to mr wentz contract one that didn't exist and was absurd as a matter of practice but which relied was owen mr wentz actions and mr c so when judge freddie took that action in his order they are previous actions were no longer an explicit it was a totally rational explanation for their actions which for which there was no other conceivable it's a nation which was to facilitate what judge from that he actually did and in the complaint i put this in the context of terrorism where somebody takes an action that benefits them and is inexplicable or unknown and it ultimately but says it facilitates an action an act of terrorism in that case it wouldn't be viewed as exceptional in any respect to infer that those things are connected and the actions of the party who benefited were intended to facilitate honour's know to the courts subject matter jurisdiction accordingly the question of whether or not the court has subject matter jurisdiction is determined at the top i am but the case in federal court is filed because it was a judgment you know honor and the courts and this circuit have repeated we held that the fact that an appeal is pending in state court does not mean that  rockefeller doctrine would not apply and you know more importantly the question of whether or not the proceedings ended that is now there is nothing in the  pointed out in my papers number one the while the nd circuit has not definitively ruled on that question the district courts and i cited the cases and the eastern district of new york southern district of new york and the dish to to connecticut have all rejected those that possession and more importantly the nd circuit has indeed implicitly adopted that position and voiceprint versus accredited home  judgment the fact that there's an appeal pending your honor they're almost always this an appeal pending because whenever there's a controversy yes you're out of so whenever there's a controversy you often going to have parallel proceedings pending the whole purpose of the rockefeller doctrine would be under law i and i set a saw you do as several eastern district of new york cases have pointed out if we allowed someone to subvert the rocker feldman doctrine court noted in that case that the st factor stay quote loser had been mad i grant you it did not go into detail on that and i also grant she that it was not the main issue  is with all due respect i would differ on that because of the fact that it can but i guess in a yes or that's correct you want to but that's not the standard the nd circuit applies and the fact that there's an appeal pending doesn't change the fact provided you have a judgment that that is considered and and result and this is where the exxon case is misapplied by mr butcher because the nd circuit courts who have evaluated that have stated that in that case that's a very different situation because no judgment had been issued prior to the filing of that federal lawsuit next on that is a critical distinction and many cases in the nd circuit have noted that distinction so that is absolutely critical so doctrine the st segment of that the st requirement that he be a state court loser is determined at the time that the federal cases filed if the court did not have subject matter jurisdiction when it's filed the court doesn't that submit that he that he cannot because of the fact that he does not make out any sufficient claims if he filed it's not about whether we have jurisdiction and so he can funnel the case but then you would say  was sitting that was eight months before the state court article seventy five percent of it's entirely implausible there's no reason for anybody to have suspected or believe that justice for not it would ultimately reside in the found that he actually should've been brought within ninety days of the partial arbitration award but justice for no relied on again whilst i wish law that you only final decisions are appealable so it's while the a politician ultimately disagree that the lower federal courts lack the power in the jurisdiction to consider what are in effect appeals from state court judgments the fact that somebody is didn't essentially two tracks that they're the decisions of state courts regardless of whether it would interfere with the said that they were going to ask you to view the facts in the light most favorable to them and they have st of all whole block is explicit as to what the timing requirement is it says it says explicit that the timing requirement is satisfied meaning the doctrine applies if the state sued as unequivocal a terminated it couldn't be more clear and the supreme court is actually clearer in exxon mobil in saying that that suit actions to which it has applied the doctrine are those where the state proceedings have ended so i commend the th circuit decision to you because the logic of this is really not debatable in the way that that it's being  described and with respect to the allegations against judge for netty you know their entire two they're entitled to argue the facts but what they're trying to do is get this course to die  respondents counsel before they argued the a put the the appeal not to even touch not even to mention the time when this argument because while we had the better decision it wasn't a it wasn't  obviously corrupt decision on judge for nettie's part there were two other bases that we had to win the appeal where there was no possibility that we could lose and on that one there was a possibility thank you very much