the next case similarly named is the indirect purchaser class versus panasonic corporation and conor irwin the object you get six minutes he gets fourteen minutes ok that's what i want to find  counsel unsealed for the benefit of the class we're also asking that the court return the twenty to twenty five million difference between the bid and that the awarded from rounds one and two since the class got a sixteen percent return on its damages those funds will make a significant difference i'd like to start with the ceiling issue st if i could the court needs to address to know the standard for keeping bits under seal is that the presumptive compelling reason standard or good cause district court's order in the st two rounds don't mention the standard nor do they mention the presumption of public access they just say that it will remain under seal because it would show how class counsel value the case and will disclose or their work product well so my understanding is that the district court was very concerned because the case wasn't over yet there was the st settlement there was the nd settlement there was concern that class counsel could be hindered in future settlement negotiations i think none of it was released until the rd settlement and then and then s c r four was released which does seem to be the most important part it's the table well as a class member i have no way to know if it is the most important but good cause is not enough to keep sealed to keep a bed become class council under seal no circuit court has ever held that it is the analysis under this court's kreisler opinion is is a bid more than tangentially related to the merits and the only circuit court order to address that is the rd circuit and the cindy opinion which we cited our previous senate said that compelling countervailing interests must be shown because of the importance of the bit to the administration of the case class members having access to the bases on which their turnings became clout class council is crucial given class councils and usual amount of control over information and the class members limited input in class actions so compelling interests were required but not even attempted to be shown all we have is a discussion of how class council value the case and that same sort of analysis was rejected by the rd circuit is a compelling countervailing interest now given the presumption that we start with that there is public asset access we as class members shouldn't have to articulate why we need to see the bid but class council have given the class reason not to simply accept their version of what the bit says st they didn't tell us they didn't tell the court or the class about the bit until after our client raise said in the objection and all three objections nd they use nomenclature like feet guide to argue that the bid was just a suggestion when judge walker in the past has not treated bid silent opinion so they also the rd thing that they didn't tell us describe was that did promise not to seek expenses on top of fees so there's we have class council have demonstrated their self interest in trying to get the largest be possible which of course is anything the council in their position would likely do but it gives all the more reason for the for the class members to have access to it at least in redacted form to protect attorney client work product sorry so this court should adhere to the compelling reason standard and vacate the court's continued sealing of the bit let me briefly turn to the fees themselves it's reasonable this is the bottom line for attorney's fees under this guy no how is it ever reasonable toward a firm twice what it did to become class council we are now asking this court to adjust our step outside its traditional fee analysis the forty two million dollars from the class comments on instead of twenty two million dollars promised is on its face unreasonable the court and brown one found the bid did percentage of the fund analysis that's not correct that should have factored heavily in factor four which is market rate it didn't judge walker shopped around and found the best counsel at the best price once he retired why is it then reasonable to award the firm twice as much to the class members should be given the benefit of that bargain bid should have also weighed heavily in factor six which is the case was taken on a contingency agonise bird wouldn't have won the bid if it did twice as much as submitted to the court yes all three of the firms were highly skilled and judge walker initially noted that in his order appointing counsel there are other factors that we judge walker's decision but he specifically found that the proposal favored are going to berman so i just conclude by saying that the aggregate twenty three percent from rounds one in two that was awarded may have been reasonable if there was no bit but there was a bit we can't pretend there was no bid and there should have been a principled explanation for exceeding it by two times this courtship vacate the court's order denying irwin's request and seal the b good morning judge ferris good morning judge good morning judge kristen and they please the court my name is christopher andrews pro se objector appellant an attorney request two minutes  the major material issue in the fifty six million dollars approval will take sixty five seconds to just record the dozens of plaintiffs and defense lawyers ignored and failed to acknowledge the appellant seventy page non frivolous objection a motion to unseal records and a motion to appear by phone that are on the docket with copies of those documents going to lawyers email boxes and paper copies were sent to chambers i quote to survive a and also see bluetooth headsets i request by a vote of three dollars to zero that the son went along with any fee expense and service awards be reversed because the approval was clear error and abuse of discretion class counsel should also be removed for the misconduct the hearing by remaining mute i also request the defense lawyers be removed as well and they have their fees refunded to the de notice i seem with there is no date the month is listed along with the year but no date so the argument is we don't know when the class started and when it ended missing is the number of devices involved in the there's a huge risk windfall incentive awards to the named plaintiffs the damage reports are legally sealed which the class has a right to see before determining the best course of action to take like filing a claim opting out or doing nothing the claims did not see acknowledged or agreed to the two page release of claims that should have been attached to the claim form next the judge and defendant's employees are part of the case and can ken follett claim for damages which creates bad incentive the fear warded was a windfall it sold the class out there is not a single receipt for three million seven hundred thousand dollars expense award i went to a restaurant yesterday and got a receipt for eleven dollars ninety nine cents i request fifty dollars to three dollars to zero that the fundamental long with any fee expense and service award be reversed because the approval was adequate one last issue the name players were given and sent to the wards that exceeded what was in the settlement agreements the lawyers remained mute when the judge made that mistake in the court at the fairness hearing that should be reversed that's a windfall for them i won last issue my opponent is scheduled to give a response i file a knowledge meant of hearing notice within the lease twenty one days before the hearing which i did he filed his notice eight days ago he broke the rules the worries are breaking the rules the judges the judge broke the rules and i thought all of them and that's why we're here today i request that you penalize him for not following the rules and allow him not to speak or strike his testimony from the record giv d morning your honors may please the court kevin green for a plaintiff apple e and direct purchaser class and i'm going to respond to some of what's been argued in the opening the st i just want to set the table on what were or addressing here today a ten year old case the most important factor governing an attorney fee award in the class action context and many others is a result tainted and does not challenge here there's a settlements recovering to date two hundred and five million dollars when public prosecutors didn't recover a dime for consumers and that i mean it's all been brief and so i want to be on it but that was not easy it was a lot of hard work international depositions it was going through millions of documents and so on done by my colleagues in the scarlet and many others on our team as solti counsel and so i want to go to a couple of key points that the  disagreement with th circuit law and how the district court exercise its broad discretion here on fees and starting with the fee application in the grid it really turns dollar thing and that is was that binding for all time starting in two thousand and ten and i respectfully submit that that conclusion is not supported by th circuit bar in fact it's contrary to it  came in with a proposal for twenty two million dollars and ended up getting forty four million dollars because they're there the basis of the twenty two million dollars fee was not  is the record the district court address that directly i think contrary to what's been suggested the district court for the the full upset of it and we've got five appeals here i'll try to keep straight and this is at erwin excerpts of record case number four hundred and thirty nine involving the nd settlement here are twenty three the district court said and this is where i think the this is an exercise of discretion that's perfectly reasonable within the bounds district court said the fee i'm awarding is higher than i would have been but for the bid but lower than i might have awarded if there had been a bit  class settled folded much earlier but i'm having trouble so could i get to my question terry and maybe have you help me out but at the rd saw them and i really looked hard at the st two settlements to see if there was indication that the district court was aware of the extent of the variance and i couldn't find it anywhere there's a place in the rd settlement where he's where he says on record that he was looking for it and couldn't find the bid and again i am not casting aspersions here i had a really hard time getting a hold of it it was sealed on the record you may well have expected and understood that the district court had access to it but for whatever glitch or whatever reason i am i can tell you that the circuit court had to take three different runs and getting it from the clerk's office they were having a really hard time accessing it whether you're aware of that or not i don't know but but but but but that's the record that i've got i can't see that he did have it at the st or that or the  nd and so i'm concerned about the pentagon want to give you a chance to respond i'm considered concerned about that the extent of the variance i'm concerned about i can't find anywhere where there was a statement that in the original be a good judge walker clearly understood that that the class was not going to be charged for expenses and they were and i can't see where the district court acknowledged that and there's a place where after in response to i don't think this the  was mentioned at all and the original bid was mentioned in the original fee proposal a few request objectors mentioned it and then you you know someone from your side came back and said that the fee would have been twelve to thirteen percent i can't get twelve to thirteen percent looking at a c r for so those are my three primary questions for you ok to try to address those in sequence if i can  district court well st on the expenses question as to your forces very clearly that the class would not be charged for costs it does not mention expenses that's not on that page and that's why those were separate of record the ones that were most recently submitted as c r thirty eight found that ok i've looked at the application i've considered the bit apart from how close might consider to previously and this fee award nominee view now granted this is the rd settlement this fear ward in the prior wards under all the circumstances are reasonable it does not change my opinion now is it too late for him to make that finding and my answer to that is under th circuit lot no because all that's required to give an explanation for a few board is a reason explanation in the record and that's an online d v d and churchill village and we have that before this court right now so i mean to the extent that was a mistake or an error i think it was fixed in that order as your thirty where the court  clearly under all the circumstances i still find these fees to be reasonable and again under biscay no the court has to consider all the circumstances and what he said was just like forgive me for interrupting but that does get back discretion judge the borg said that the c m of wording is higher than it would have been but for the dead but lower than it would have been if there had been no bad and when the court is looking at all the and so he did consider that as a factor and so in light of dion circuit law that all the circumstances are considered in arriving at a reasonable fee what i'm hearing is disagreement on how much weight he should have given it and that's well then well well wait a minute you also represented that he had considered it and i think you may have reasonably understood that he considered it but i'm not sure he had it or could find it and so and i don't think anybody here today knows that but that is a problem that i've got and then there's the representation repeatedly if you could just walk me through it before our court that had the see the had been followed it would have been between twelve and thirteen percent and i can't get there could you could you this is a c r thirty judge judge me that i just read to you now the court is look to the original proposal was supporting the fact the fees awarded each run of the settlement had been substantially less than would have been justified absent that proposal admittedly substantially higher than had the proposal been strictly followed so i think it's clear from that and all inferences drawn in favor of the order and review that judge seaboard had that did he considered it he made determination that under all the circumstances the fees are reason monegan he landed somewhere in the middle of saying ok i could have gone higher than say a one dollar multiplier a lot higher under biscayne oh it could have been the threes but i'm going to go a lot lower right right and that's the stage of the case there is after a motion to dismiss through adjudication of class certification and that's where the case was and the percentages differ i'm not trying to put words in your mouth but i i think the answer is that you got to between twelve and thirteen percent by taking each of the three components of the st settlement separately is that right yes and that's because th well that's the range reflects the amount recovered so that is the amount recovered from each defendant goes up the percentage goes down yes counsel i know that is there is there the further explanation you can give me about the far left hand column about why wasn't binding on judge seaboard or that judge not to be flip when i say didn't mean it but it seems to me like an unequivocal statement are you relying on your position that judge seeburg had discretion to vary from it or is it your position and attorneys to be awarded to sas based on all the circumstances and the bid is one circumstance that's the focus of this appeal i understand that's the problem right so can and then one of the circumstances and then all of that will stop but there's another circumstance  that the judge called out and then you're briefing you've you've continued which is that the d o j investigation in your view increase the litigation risk for plaintiff counsel for class counsel and i frankly find that mystifying can you some of the discovery from the criminal d o j is that right there was an appeal in that that's correct but judge seaboard made a determination i assume it's reviewed for clear air that this case was developed circumstance for us because there's a fiduciary obligation we're trying to be careful and it and then it rolled out in thirds and i that's why i'm trying to make sure that the district court had what it needed to recognize the extent of the variance is there anything you want to tell me anything else you want  tell me about that that's the that's the rub for me i'm going to try to repeat interested in our position on that just to make it very very clear and that is that it's quite evident from the supplemental excerpts of record and what i just read it and that's it as he or as he or thirty that judge see borg had that information apart from what he had said at a hearing where he when he had it at the certainly at the time of the settlement approval in the rd settlement that's not before the court now and that's part of that's the supplemental excerpts of record that mr irwin submitted and again that's where he says i think he makes a and so i don't know if you included that in your briefing because you assumed it since it had been filed never mind that there was problems accessing that are in that i don't know how you could have done that but is there is there another place in the record that that order certainly construed favorably to the to the judgment and her appellate review standards is that he knew about it that he had some awareness of it now what exactly he knew i'm not sure but given that the court considers all the circumstances all the circumstances the risk the complexity of the fact that my my firm fronted thirty one million dollars over ten years or handful of firms in the country that would do that to cover what  did for a class i suggest that he was aware of that so i think it's something of a it could have been a slip but i mean the fact that he talked about it suggests of course he knew about it i want to touch on just the benchmark briefly my time is about to expire here in the opening brief from mr irwin in case number sixty five the lower number case ed page nineteen a zero b at nineteen mr a makes very clear that he's seeking to revisit the term is his cane or should be revisited and of course respectfully a three judge panel can't do that it's an argument  against th circuit law not in short discretion means as applied to this case in thinking of cases like us versus tanks and what is discretion meets contextual it means the judge had more than one choice and i think the judge here acted within the permissible range looking at all relevant circumstances bearing on the few words on the on this record and these facts thank you omissions why not largely there's nothing new it's other than the court says it is now refute the bid it just articulate said it could have awarded more had there not been a bi s prior orders which again were made when the court had not reviewed the bid and you'll view doesn't make any difference that is the time the bid was the nobody knew what was going to transpire nobody knew that day ten years nobody knew that the thirty million dance to bring it to pollution somebody had to dance and money to bring it to i agree with that and that's in all the facts now unknown other words the court knows now who has what what what effort had to be put forward in order to make the recovery that i think everybody is satisfied with am i wrong on that i think that's a fair assessment that it's impossible vying for class council status and so they anticipate those scenarios and that's one of the reasons that judge walker specifically appointed are going through and so i agree i agree i agree  knew at that time what would have to be done in order to bring this matter to a successful conclusion that barack was not known until it was brought to stifle conclusion so it seems to me your burden is to show to us why it's by the court didn't consider everything you need to consider don't you think that's so well if if at that time they made the bid nobody knew what road they have to travel to get a satisfactory result so in your view the bed bound them and in the court's view at least as i understand this record in the court you the bid is something to consider and the court said i don't consider it i would have given a more but i'll give him a little less than i would have given  articulation of how the court considered the bit in the context of this kind of factors how did it affect the market rate to not mention the bid and market rate when that is the market rate by definition what they fees on a contingency basis the basis was a twelve percent fee not a twenty three percent to your twenty five percent loss plus plus conses expenses that's that's the one thing i brought up that i brought up the bit in my objection the pill briefing reply brief but that was not my focus my focus is on the material issues that are wrong with the settlements and i haven't heard any questions or see also federal rules of civil procedure sixty one we're going to make our fund amount that was awarded i believe that the amount that was awarded would have been substantially less had the whole one hundred and twenty four million dollar been made in one lump sum what happened is they submitted it and i put it in increments and i think what they're really i was probably closer to one thousand six hundred and eighteen percent the amount of work involved in selling a sixty million dollars settlement is just the same