it please the court katharine barrett with province kaplan l l p for the best by helen in numerous opinions over the past decades the united states supreme court has recognized the critical role that private any trust litigation plays in the enforcement of our nation's antitrust laws part of that regime both at the federal level under the sherman act and the damages provision under the clayton act and the minnesota antitrust act is ensuring that plaintiffs who are injured by cartels are able to recover fully for their injury and whilst counsel let me just cut to the chase here you and your client got one the settlements with other plaintiffs mattered it seems to me that at bottom what the court was saying was you had really tiny success and so we're going to give you let's is there anything wrong with that reasoning that fertile limited success you get limited for use in the way that that conclusion of limited success was reached here which was only through considering the settlement offsets yes i was once an only through that there was a did settle did involve both direct and indirect claims just like the claims that were tried so if you feel like you the special master a doctor that by the disk just record is trying to sort of have it both ways they're saying best buy achieved nothing it only reached one percent so and that because they've applied the settlement offset to hold no additional compensatory damages at that she'd only get one percent without considering the offset right you have told me with you zero after the offset but you got less than a million from the jerk that's correct given the defense to the indirect purchasers was purchased late was allowed that was part of why there was there that was why there was zero  interact ok now let me ask this and i know you don't accept the premise of the spec let's assume that we were to conclude that only the parent company best buy proved that it was harmed that the individual amounts that were attributable to the other subsidiary entities were not demonstrated if you had one out of six point zero s that prevailed would that it least in theory reduce or potentially reduce the amount of fees not if all of the damages coming from the subsidiaries were captured by the by the parent you wouldn't then also  back out for five unsuccessful plaintiffs i mean if best buy has proven its injury as it has here as demonstrated both from the settlements and from the verdict that it's been injured it isn't titled under the clayton act section four a and the minnesota antitrust act to be made whole and we see it as i would i would encourage the court to look at the law point from the fifth and serve circuit which the special master noted is dead set  against position here but a party whose proven injury is not able to recover attorney's fees because there is no additional recovery of damages only when there's a consideration of offsets with co defendants and that's exactly what happened here so we purpose of the sherman act and the clayton act and then if you look at page sixteen of the special masters report he backed out small portions of the damages or excuse me of the fees for other individual arguments tha made things related purely to toshiba there's some other deductions but then concluded that there were eight point six million dollars of attorney's fees and did consider hand stars claims that for a variety of reasons also fees those eight point six million were not reasonable saying that there were too many lawyers their rates were too high they build block build they you know work nights and weekends and the judge said this is a complex case this is a big case it happened over a number of years and that eight point six million dollars in fees is reasonable given this case and this complexity and that finding a reasonable miss that is what then we look at to look at the sherman act section four of the clayton act and the minnesota and i trust act and because best buy proved it was injured both of those statutes have mandatory language they shall recover that just i think i missed your answer to just labor's question if the other four five subsidiaries were not if we find the union prove injury that those other four or five subsidiaries did not prevent three and then you only have one prevailing party one prev plaintive than the clayton wouldn't apply because it has to be someone who has been injured through the course of their business right now how would you reconcile the two i think there think wondering if there's some confusion about what went through at the trial the term best buy was used that term is being used by the witnesses the parties to refer to all of the plaintiffs collectively not just or not it did not mean the parent company it meant the collective best by plaintiff and that's halt all the evidence came in that's how it was analyzed by hans starr's experts as well as ours and so we have that cumulative injury that if those entities those are all the entities that had purchased in the united states price fixed goods because all of those they wouldn't have been in the collection of data of price fixing goods if they hadn't made those purchases so there was a yes it was a collective there was not a breakdown of what percentage each of them had made but what was the point i mean i guess this is not on the record or not maybe a relevant question but what is the point then of having this subsidiaries if it's all collective when it's all purchased by the parent in minneapolis i'm not really sure why we have this sort of amorphous collection because there's no breakdown as to each subsidy or how many t v s they bought or whatever it's not that they're all purchased they're not all purchased by the parent they're purchased by various subsidiaries because of complicated you know business decisions about which entities make which purchases from which counter parties are but if they're separately purchased what is the problem if any if there is no separation in the proof there is no problem because there's no double counting it's simply it has to do with how the the data of all of the subsidiaries is tracked through a centralized database and one has to prove damage so unless you have somebody saying each one of the saying specifically each of these  we just assume that no but that is what the testimony of ms fritz supports she testified when she used the phrase best buy she was talking about the collective pla entities which were the best by entities who had purchased the price fixed goods in the united states so that testimony that those those entities that we also have that through the expert bernheim that that those plain entities had purchased price fixed goods it was presented collectively and there's never been any ago allegation at any stage that those there was any double counting that the same because it was based on skew number so  there's no allegation the claim in the critique from hans starr is that we didn't say how those different panteley what percentage of the harm was sustained by what best buy subsidiary and that's not an argument that was raised until the very end of trial so our witnesses went on both fact an expert there's went on everyone was talking about the school actively and there was never any you know no cross examination of this issue no objections that they were being admitted collectively it's simply how the data sort of starting from and you discover perspective how the data that got at the direct and direct purchases in this case how it was stored by buy best i do want to move on to my cost issue which is at its heart and theory issue so what we had in this instance was the special master which was then adopted by the district court looking at best buys claim for expert witness fees as part of its entitlement to costs in dispersement under the minnesota antitrust act and what what happened here following the case of a savvy use where in that case there was a california procedural cost federal the federal procedural cost at shoot and given in that instance the choice of law was between state and federal procedural law this court appropriately said federal procedural law governs what we have in this instance is not that we have clawson we have a situation where the minute the minnesota legislature in adopting a belt and suspenders approach and providing broad romany's to injured parties has included this this very long extensive remedial provision which allows for cost of disbursements so the analysis of whether and how much it costs in terms of expert witness we should be awarded to best buy as a party that prove that it was injured should be analyzed under minnesota law and that did not happen here but if you do analyze it under minnesota law it's specific that the expert fees are covered under damages it's very different from the  oil spill case the knights the ninth circuit case the clawson case the statute in the closet case talk specifically and gave the express indication  that the damages would include expert fees and we don't have that in the minnesota statute we don't have a definite you're correct that we do not have a definitions provision that defines damages in minnesota statute what we have inclusion of in addition to the trouble damages costs and disbursements including reasonable attorneys fees and yes you are cracked the minnesota supreme court that phrase no minnesota court has ever interpreted this exact question does that phrase in disbursements it allow expert witness fees that has not been determined in the context of this statute but it has been determined in the context of other statutes which we outlined in our briefing and in several other statutes where industry disbursements is present and some other statutes were just costs present minnesota courts have allowed expert witness fees because of the recognition that that's something that parties need to do to prove an antitrust injury addressing first the issue of attorneys fees the issue of what a reasonable attorney's fees is is grounded so soundly in the trial courts discretion in this instance we had a recommendation made first by the special master and then ratified by the district court judge these were two judicial officers who had overseen this litigation for many years at that point i think it was seven years or so that this case had been going on in the district court and so they were the ones who are in the best position to determine what is a reasonable attorney's fee in this instance and through a lengthy discussion in his recommendation the special master recount it went through a number of factors that he considered and then weighed and some rejected some and accepted some and arrived at one point seven five as the reasonable attorneys fee and theirs and the best b plaintiffs have not demonstrated any reason why we should sit here today and second guess the trial court's discretion in that regard as you were talking just before about best buy and damages  i looked to the or tried to pull up the record on that database of best buy's purchases and i don't know if your honor still has any questions about them but i was i was looking at that to trying to determine whether there was any specificity with miss fritz's testimony about best buy and what their damages were and again it her testimony starts at this is actually i'm sorry i'm looking at there are sorts of record from the first appeal but a tiara two four three that's where her testimony begins and she just identifies herself as a best buy employee with no specification and then just says that that best buy purchased about thirty two billion in revenue on t v s laptops and and she then later goes on to talk about that as the the approximation of the amount best buy has spent to buy products that that's all there is in terms of that that database turning to that yeah it's a question to do is it clear whether or not the special master and or the district court to reduce the attorney's fees your honor i don't i don't think they did if they were going to offset the fees then the fees would have been all the way down to zero and because if you're going to offset there was such a large offset that it would have just wiped out the attorney's fees so so was there so i'm trying to determine whether the the language in the decision that talks about and in the end they recovered zero after the offset whether that just whether that's an actual offset which probably wouldn't be proper or whether that's just masters way of noting that they recovered very little in the outcome of the trial and in dollars amount in actual damages they recovered less than the attorney's fees that they were requesting yet no yes i think so and it's this is an instance where the majority of the trial was spent trying to fix liability on someone else not even my client and they failed and so in light of all of that in light of the outcome of the trial remember this was a trial where my client from the very beginning admittedly ability the only thing was damages that was the only thing that we were debating and so when they as judge gruber as you pointed out when the b all right and it and it it's that failure to find them the coconspirator that brings in all of those other evidentiary issues from that the first appeal that we were just talking about but it it also is the basis for reducing the attorney's fee and it was within the district court's discretion to do so if you have no more questions on fees that can turn to to costs next  court correctly applied federal procedural law to deny recovery of nontaxable expert witness fees this is this is all a little bit of an academic point though because the dust by plaintiffs are doing that expert fees should be part of the substantive recovery under the minnesota any trust act we think that's wrong for a number of reasons and we explain in our papers have cost and  procedural under minnesota law but it's a it's it's almost an academic point because if they are substantive substantive part of your damages under minnesota law then they are offset by the two hundred twenty nine million dollars and you see there is no reason to to overturn the decision and in that sense we don't think you need to get there though of course because we think the right decision is what the district court found which was that this was a instance where you need to apply the federal procedural rule on taxation of costs and that limits witness fees to the forty dollars a day per day of of a tendenc bit of rebuttal time remaining  the court i'd like to just start by reframing what the trial was about the trial was not simply about the two defendants who were there at the defendant's table hand star and to sheeba the trial was about how best buy had been harmed by the conspiracy as a whole and best buy had been injured by the totality of the actions of the conspiracy and that meant that a huge amount of the evidence in the trial was about best by explaining all of its direct and indirect purchases and how the conspiracy had operated as a whole they just wanted to make that clear that the focus of the trial was the conspiracy as a whole and how best buy had been harmed there was some particular defendant specific time and that was a factor that the special master used and backed out some fees that were particular to toshi but that was a very small portion because again the bulk of the trial was spent on proving how best buy had been injured from the conspiracy as a whole and demonstrating the breakdown moving to something that was noted by my opposing counsel that there's a some tension between recognizing that there's part of a remedy for an injury under the minnesota antitrust act including costs in disbursements and that making it an issue of damages that that's somehow vulnerable to an offset it was clear in this instance that something that is in the twelve the special mass report and this is actually and documents submitted by hands are in post trial briefing that the expressed terms of the prior settlements with the other co defendants did not include attorneys fees and costs those settlement specifically stated that the parties would be covering their own fees and costs and what that means is that best buy did not recover any of these amounts that were bringing forth forth today and that were that were sought in these post trial briefs that is not there's no double counting here buy chose to settle for the amounts that it did with those co defendants on those expressed contractual settlement terms because it retain the right to seek its fees and costs and be made whole for the totality of the injury that it sustained and so there's