lack of clarity with respect to this case but at the end of the day when we hear prematurely and what i mean by that is if the bankruptcy court has not ruled definitively with respect to the fees or lack thereof that your client is entitle to what are we doing here ok b answer is that the fee award before the court now the two thousand and fifteen fiel we have back yet embarked on discovery relating to the settlement the one hundred and forty two million dollars global settlement which will require discovery into the role of sox three hundred and four into it you know explain was is not premature because if we go through all if if the ruling from two thousand and fifteen remains i'm challenged it is the operative ruling from which we judge fees and at the end of the process of discovery and in evidence rehearing in which my adversaries have announced their intent to block discovery into the settlement through the mediation privilege i am unable to establish that funds actually flowed from the sox three hundred and four recovery to the debtor contingent fee and had to go on a contingent contingent on a recovery but isn't that sound much what you're appealing from haven't hasn't the bankruptcy court moved on to that as a how are you going to be able to recover and i put pose a question how are you going to be able to recover under the two thousand and fifteen settlement if that settlement doesn't district distribute the money because that's the operative order relating to our yeah in other words i don't think we have the operative or you're objecting to the structure the bankruptcy the restrictions as it were the bankruptcy court put on your potential for you right yes  yes but the but the situation we're in is that if i am unable to establish specifically that funds came from socks three o four and this was a global settlement involving other claims then we are entitled to zero and what that means is that we get zero as an object to her for raising a meritorious objection that vindicated concern going back to my question again just to help me clarify this so your position is if you don't get this two one thousand and fifteen dollars order reversed you're not going to be able to raise a similar argument  in the future in the bankruptcy court in the final settlement that's absolutely correct ok in other words i am i am stuck with stuck with an order that says as a successful objector who in two thousand  vindicated the public interest save one hundred and eighty six million dollars claim you are entitled to nothing unless you clear this further ergo of showing that funds went from the sox three hundred and four covering which they can test and they structured the settlement the new settlement specifically to disguise the row of sox three hundred and four and you know i've got  to contest with that i have to contest with the mediation privilege in opposition here today is we earned our fee in two thousand and ten and you're not org you again you're entitled to a fee based on a common fund the provided that it was would be deemed satisfied by the release of funds that had been restrained in the eastern district of new york in the civil forfeiture it well actually the funds were originally restrain only if a determination is made that funds came to it's not impossible but social assume the bankruptcy court does make terminations and does award fees that's possible that's possible but it's also possible that the bankruptcy court would make a finding of fact saying i as they contend saying oh i don't think any of these funds came from socks three o four they came from the civil asset forfeiture in the eastern district and therefore under from that particular claim it would not be open to me after the bankruptcy court rules to come before the court and say we were we were entitled to a fee regardless we earned  isn't to the problem one of the problems i think we have here is where the position of evaluating whether or not the bankruptcy judge the bankruptcy court abused its discretion in deciding that defeat that you should get should be contingent on being able to trace your objection to a specific fine if we have to review that based on an abuse of discretion standard is not an abuse of discretion standard a review of the procedures in the standards that are applied to a fee application is a question of law this review did no that's the valerie no  case from two thousand and sixteen ballerina versus hoover which was citing lochner versus university of pittsburgh the standard sim procedures and what's clear in this case is that the bankruptcy court did not take into account whatsoever are serving the public interest in other words the only thing that counted in the bankruptcy court perhaps not unexpectedly is money in the door that benefits  and the ruling has sensually says you despite your successful objection in the nd circuit you are entitled to nothing unless there's a recovery on this specific claim which by the way you would determination of the nd circuit was prevent money from going out of the state rather than well good in the nd circuit decision which was which overturned vacated a settlement there had been approved by the eastern district of new york which is not an everyday occurrence they said the part of that settlement an integral part of the settlement was the release in the indemnification of the former c his one hundred and eighty six million under section three hundred and four of sarbanes oxley we argued that that's illegal and that it undermined it's contrary to public policy we prevailed on that company money going out of  having money come in in the event that there was a recovery of stocks three dollars or four which is a strict liability statute so they had one hundred and eighty six million dollars claim strict liability claim against someone who was a billionaire at that time that was the claim that was released if he had to pay that claim the company would be obligated to indemnify him so essentially what you're saying is correct except the s e c took the position we're not going to bother pursuing a claim if you know he's not going to pay it and he's going to be indemnified and that was a matter of actual practice before our decision in two thousand and ten that get it i'm trying to get the standard you're saying we have to review that the bankruptcy court decision on your feet de novo because the question law which case says that someone who comes before a bankruptcy court and as a i'm going to call you a successful objector which case says basis a successful objector doesn't have to point to a specific where objections were overruled but fees were awarded because they made it a more adversarial process there was a fee in the settlement in our case back in two thousand and eight which was the combined class action lausd st with respect to the common fund there is no case where this d court held or the supreme court held that object or who seeks to case well that's not what they said when they made their fee application to the bankruptcy court when they made their fee application to the bankruptcy court in two thousand and fifteen they said this is a common fund case we're entitled to one percent of a one hundred and eighty six billion dollars recovery therefore we get a fee of one dollar they've made an application based on a common one case the bankruptcy courts rule in that they don't get to recover from a hypothetical common fund was based on that application where at the time in two thousand and fifty and frankly to this day there was no common fund created by the sox real for litigation and mr sesar saying that if we were proposing a hypothetical common fund case we were just using that settlement as a basis to which to calculate the amount of money we were arrested and what we got was a determination it's your and type of amount of money but show that it came to show that this money came in as a result of your socks after i think the panels questions highlighted the problem with mr sesar steerer he's trying to use to settlement there's a two thousand and fifteen settle that upon which he based  money that would be at that time obtained in connection with criminal restitution or that subsequently after bruce died in connection with civil forfeiture or big could reach a divided at that time there was a hope and prayer that there would be money so mr sesar comes into court after that hope and prayer and says i want a fee based on that one hundred and eighty six dollars common fun and there just wasn't one hundred and eighty six billion dollars common fund then there was a sachs three hundred and four claim by this e c in florida which at the time it did state sachs through for claim may have gotten a judgment for one hundred and eighty six billion dollars but we all know when you get a judge big got to go collect the judgment and there was no judge would there was no collection of the judge bit in mr brooks who had had the pleasure having the fifty here's here's where we are we have an action it has a claim it stared no judgment d and if they get a judge bed a normally uncertain how they will collective judgment there are do other than the restrained funds and that was true back in two thousand and fifty it solves a true today but what business sets are and his client was looking for it two thousand and fifty which is the order we're here on today was a share of a common bond they go to the bankruptcy court or they say just sanji we want based on all the common fun cases they cited we want one percent of that  that's a one million quite eighty six dollars we think that's a fair number we did a lodestar cross checked lodestar project is our fees are five hundred and fifty thousand we're asking for one eighty six says basically he asked the same question this paddle asked you have a funded you'll have a hypothesis and they answered that time was there's a high hypothetical fund there is no fun before he died this is and this is a book and a point where he might get and then the fire so well so that there would have been a fine not exactly this was at the point before he died but we as the debtor we take over the case in april th two thousand tad we filed for bankruptcy brooks's out of the picture the board is replaced we have a cheap restructuring officer who is a court here today we keep restructuring officer scott is in control of the company the st almost the st thing we do is we file a lawsuit before the rd a before the nd circuit ruled on been distributed to creditors or by the way this case as opposed to most ten year old chapter eleven liquidating cases his kids have been home bride we have are you willing to pay them as i'm here look at this people or your i couldn't i couldn't agree more but sometimes there is a grand canyon between the bit and they ask on a settlement and that's unfortunately what we've had here we've over the ten years we've distributed positive this is really the last material batter that the debtor and the recovered trust are dealing with the case or what what is a fair we cover there has been a benefit and you can't figure out whether the benefit created a fund a common fund what the benefit did to the common fund you do what you do with back groups the cases you look at how many hours the turkeys bill you look at what are reasonable hourly raiders and you pay the attorneys the state just like you pay d the state professional you pay the d objector to say away you pay them so there lo that if we were able to successfully mediate this case at the get it resolved would we be sane in the bankruptcy court that there was no benefit now we won't be same that but what we're saying here today is a little bit different than what we have to say to back up sequoia which goes to the point of are we done today if this court makes a really no we're not going to get in the way you see not going to get in the way in the bankruptcy court you're going to admit that would mr sr his group did was beneficial it was like that representation to me we made that representation to the bankruptcy court we made up of records of patients back in two thousand head to the bankruptcy court d there was a benefit created by what they did  question here today is not whether there was a benefit created by what they did however that would be a question for the bankruptcy court to decide with a backup support after the side of their face which which has to be done frankly whatever  reason we're posing this appeal is they sought based on everything they did in the bankruptcy court and everything they did in the district court rate was sought a recovery based on a common fund so that's why we're here today there was a funded two thousand there again we argue there was a fun now the question is not whether there was a benefit the question is whether whether the bankruptcy court so so your daughter and the other issues if there's case there are two dollars issues that are file one is though issue with respect to the one point five billion dollars that was paid as part of the financing to counsel for the class as part of the two thousand and fifteen settlement and that now that twenty million dollars loan that was made out of which the one if we went to outside financing so that's fine oh that's a settled bit it's reviewed under abuse of discretion that should be upheld by this court just as we're not we're not opposed to a settlement we discussed settlement within the last week so we're not opposed to thank our clients here my law firm representative is here so we're all here i we're happy to do that i should make a couple of comments on and that's the presentation one is it is absolutely untrue that when we made our feet application in two thousand and fifteen that it was entirely on a basis of a common front what happened was we put in a field application with all of the requirements of a fee application time sheets description of services everything we had done up to that point and it was about one million eight hundred thousand dollars at that point it's now if we stumble that but at that point it was about one million eight dollars we also had this claim out there which the s c c had but which was stayed we had no choice regarding the timing of our fee up application i mean we didn't have the luxury of waiting around on account of the funds received by the debtor this will be the st case that i am aware of there is no case in which a successful objector is ever been denied fees this will be the st one  position is we earned our fee in two thousand and ten it is certainly true that we would be entitled to a larger fee in the event that there was  a recovery but we were certainly entitled to a fee on the basis of indicating the public interest because if this court affirms the message out there is going to be if you if all you do is vindicate the public interest no matter how important and even if it's a case of st impression you're not entitled to a fifty that the only thing that counts is if you bring money in the door dollars loan for from ashcroft point one is that escrow would not have been a bailable to the bankruptcy but for our appeal in district point mid that in two thousand and ten the only reason those funds were available on the bankruptcy was because of our nd circuit appeal the proceeds of that twenty million went entirely to pay boyer's the record show mr kornfeld firm received twelve dollars or thirteen million  that twenty million dollars in the balance went to other bankruptcy lawyers and professionals overwhelmingly so that's where that twenty million dollars loan went and the one million five hundred thousand was a gift to the class action lawyers who lost the appeal that we won in who sought to undermine the public interest but nevertheless were allowed to keep all of their fees while we got nothing this was this paid for their bankruptcy