said looking over the pretty extensive briefing and records i don't know what else i could add to what we've already done so i'm prepared to take questions otherwise i'm ready to submit any questions ok basically if there's a particular issue that is of concern to the court i have to say i thought your briefing laid it out pretty well and i think we understand what happened and we've looked at our prior panel directive to the district court  and we see what judge real did or didn't do in the face of that order unless my colleagues have any questions i don't think i have anything i have no questions and feel i can assess this on the may i make a few comments absolutely it's your time use it however you wish and i think that the both the record in the law supports the district court's decision first the record it's important to note that  in the time sheets that were submitted there was a declaration and the declaration is it page two sixty eight and it says attach here to as exhibits one two and three is a printout of time spent from two thousand and seven to november tenth of two thousand and twelve in this matter that's all it says there's no other facts to contest judge reels decision in this particular case all it says is this is all of our time it has nothing in the record that says this is all our time for challenging mcguire woods fees there's nothing in the record that says why there is time and therefore the incentive awards matter there was already warded fees there's nothing in there that says why there is time for challenging the underlying settlement or for mediation or for any of the other things that were unrelated to challenging why would so your complaint is that there is no way to segregate out the time allocated to those different issues and you know my my argument is that judge reels decision is supported by the record but there's no conflicting evidence that challenges his decision in this record because secondly the record also shows that this court has already approved class council was on appeal and so if two thirds you know means that there's no multiplier for the class council then one hundred percent can't mean that there should be a multiplier but didn't even do two things he first of all he he substantially reduce the load star and then he applied a point seven five multiplier to that reduced amount and that made complete sense because if you look at the time sheets the first entry that challenges mcguire woods fees appears in august of two thousand and nine and that about that is by halfway through the time sheets and if you look at all the pages after that entry and two thousand and by the way that that to seventy three to eighty two to ninety three and to ninety eight every page after that shows that there are entries that are unrelated to what this court mandated he should compensate one seventy eighty one and sixty five percent of the entries were unrelated to what this court mandated should be compensated and so the judge really is fifty one percent reduction seems rather generous given all of this evidence in the record itself as far as the multipliers concern the multiplier also makes sense i mean if you look at just the hours the amount that was risks the risk is  the potential of losing something of value all of the time for the appellants was on appeal and the court this court has already determined in the prior case involving v class conflict and conflict of class counsel fees and that would be forty eight effed appendix eight seventy eight that's the freely versus whirling case it said you know the no multiplier was appropriate because two thirds of the time was on appeal and it was no longer fraught with risk and so reducing the risk for the appellants makes complete sense because if you look at the class council versus the appellate class the appellant's wrist and with respect to all of the class council it was twenty thousand five hundred hours and that's one thousand eight hundred ninety six percent more of a risk taken by class consul than by the appellants moreover i think the case that this courtship focus on is whether because one of her presents a very similar situation as being argued here in winter class count so stop the sale of a corporation when this in the price of the stock was thirteen dollars a share the price of the stock went up to thirty three dollars a share and was eventually sold and class council said i should get a percentage of that increase the court said well the increase is not really because of you it's because the company was doing well and the stock price went up and so the class consulate asked for eighteen percent and the the district court reduced it to six percent when it came up to this court this court said no that about winter is that the objectors made essentially the same argument that is being presented here the objector said we challenge class councils fees and we reduced it by eight million or thirteen million dollars depending on which number you pick and they said we should get a percentage of that reduction and again the court said wait a minute that magnitude of that reduction was dependent upon the rise in the stock price not depending upon the conduct of counsel and the district court apply the lodestar and this court affirmed and this court also affirm the lack of a month plan and said in a multiplier it was not appropriate in this  situation the exact situation that we have presented here now what's interesting about winter is what happened afterwards after this court had it it went back down to the dish equipment after the next several years there was a huge fight over the attorneys fees experts were hired depositions were conducted discovery was kind of big a whole series of motions and the objector ended up having a lodestar after this court of appeals situation of over two million dollars and even in that circumstance the district court awarded a million dollars or half of that note star and gave him a month back and it makes sense because in the context of these types of cases when a guest comes to the dinner late and we distributes the food that's already on the table they can't take credit for organizing the dinner and for the bunkie it's on the table that bought it was created by somebody else and in this case class council face bunch of defendants and the defendant said that the maximum the defense experts said the maximum recovery for the class was seven million dollars even if you prove one hundred percent liability it's all  defense said million dollars we amassed a settlement of forty nine million dollars and so that magnitude and the size of the attorney's fees involved this case and nothing to do with what the appellant's did in terms of really drawing the lines of distribution within the fund it had to do with the size of the fund to begin with and that was just like when addressed was something that was outside lee's argument what he's saying is that we as sensually succeeded in delivering more value to each member of the class by saving what would have been allocated from the forty five million some seven million or so in fees that would have gone to mcguire woods and therefore because we in essence increase the per capita share to class members were entitled to a percentage of that increase in value what's your response to my response is that the basic assumption is wrong is that the forty nine million dollars belong to the class to begin with and it was the court that makes a decision as to how much it should allocate to the attorneys that created that class and so it is it is really kind of it belongs to the woods had a conflict of interest which under california law required them to require the for two forfeit is the right word but to lose a substantial portion of the work and so on that they put into it had mr not least firm not done that all that money would have gone to mcguire woods and it would not have been available to distribute to each member of the class that's truly are but the question is not so much whether it goes to the class or not the question is which measure should you use to assess the attorney's fees and that's exactly what a group is about and when it goes exact same situation where there was a large settlement and the p b s cases same think very very large settlement and the court says basically look you've got to look at the lodestar because if you look at the percentage of the recovery you're taking giving credit to somebody that didn't create that magnitude so would you concede that the firm is entitled to a reasonable lodestar for all the work that they can show was directly attributable to successfully convincing the court that there was a conflict of interest resulting in the reduction but no multiplier yes and it wouldn't matter if the fine was forty nine million dollars one hundred million dollars or five hundred thousand dollars it will be exactly the district court needed to do was to simply decide on a reasonable number of hours and a reasonable hourly rate and then award them whatever that number would be and the court did exactly that and it  applied a point seventy five multiplier because it recognised that it had already in this case and the whole ready given no multiplier to the class counsel because two thirds of their time was on appeal and here you had a  appellant that one hundred percent of their time was an appeal and so it made sense for the court to apply a point seventy five multiplier in order to make everything fair within the context of this particular case and so you can't take this out of context has to be within the b the decisions of this court already that has determined that the application of these prints posed to class council was not an abuse of discretion it would be an abuse of discretion if you turned around and you did it completely different  for the appellants and gave them a multiplier and gave them you know a percentage of the fun when you've already determined that that's inappropriate for class counts as a a decision of this court ninth circuit court and all that  last thing i want to mention and i realize that running down is that there is a case that gives a percentage of the fund right for objectors it's doing vs votes way but it's very interesting because in doing the objectors contribution actually increased the fun so it wasn't a matter of we drawing lines of the existing fund their actions actually according to court added value confine and it's interesting because the percentage of benefits that the was conferred on the attorneys in that case was for once in objectors ten point five percent of the benefit conferred in the court says that was well within the range of acceptable percentages of recovery for the another set of object it said the percentage of benefit was two point one percent of the benefit conferred and it said that was well within the range of except the percentages of recovered and if in the aggregate it was thirteen point four percent of the benefit going for which again it said it was acceptable  important point is that all of this was forty five percent of their lodestar no it didn't get their full lodestar in in any of these objector situations and in fact we have not been able to find and there was no case cited in the other point positions briefs that gave a multiplier to any objectors this whole thing about a benchmark of twenty five percent that is the risk the class consul takes when they take on a case that when they take on a completely blank table that has nothing on it and they have to take the depositions they have to create the theories they have to do all this going to that's real risk and that's not the kind of risk that we're talking about this particular paper and so i think that the district court got right it got it right it said exactly what it did if you look at the descriptions of what this court has upheld with respect to the decisions of this court it upheld the exact same circumstances for everybody else and it would be an abuse of discretion it would be inequitable for this court to decide differently than what the district court decided already in this particular case thank you thank you some kind of a feel ward from the district court previously for work between two thousand and seven two thousand that is correct that was for a separate benefit that we that we accomplished and it was actually not much of our time was  much of our time in the two thousand seven hundred was devoted to that that was the class representatives incentive awards they had been lined up for incentive awards between twenty five thousand and seventy five thousand we argued against in the district court agreed no appeal necessary the court agreed right there the difference between that other than the fact it was a lot less money the court took three hundred twenty five thousand dollars away from the class representatives the difference was the support for it is that that really was the district court's initiative when the district court wrote that opinion about those incentive boards only a little of it had to do with what we had said which was there's these ethical issues the district went on its own for the rest so that's not a real comparable in any way a comparable way to look at the subsequent thing which we did had to take it up on appeal but can you help me with the chronology i thought eth had very little precedent to support us we had to make up our case out of whole cloth and explain it to the court and we won what's your response argument you didn't take the same risk that class council did from the initiation last i think it is it is true that objectors generally speaking don't take the same risks there are different risks for example class counsel typically face more risk in although the i don't think anybody's brief this but the idea that you know what you're getting when you're getting a an attorney's fees a return on your investment expenses is incorrect but you're getting it wasn't what i was suggesting no no no that's what i what i'm exploring with you is whether or not there is a significant distinction and i think there is between the risk that class council take when they file a lawsuit and then assume all of the attendant risks in the litigation through discovery and motions practice and so on and the risk that a typical objector faces when the objector comes in at the stage where the settlement fund has already been negotiated and now the question is how that how that money is going to be allocated or whether that amount is sufficient to permit the court to find that it's a reasonable settlement i think that the stage at which the objector comes in affects the risk there's no question that there is the risk you're talking about about if you carry a case for a long time the risk of engaging in discovery and things like that when there's not much you may lose and then you've lost your time and you've lost lose the case summary judgment whatnot but that's that and i'm not suggesting that you didn't confer any value at all as i was exploring with mr khan as our with regard to increasing the amount of the funds that were available for per capita distribution to the class members but i hear his point that our benchmark cases all address what's a reasonable percentage for class council who've had the case from the beginning and i'm not sure other than that one case that he mentioned at the very end of his remarks there are any cases that address benchmarks in this situation for objectors who succeed and reallocating the settlement fund i think the case you might be looking for is rodriguez v disney which says that we have just what we refer to as rodriguez to excess as we approach these the same way we do  equitably the same way for objectors as we do with class counsel it is difficult for me to understand the difference at this point in the risk as i said i think in the ordinary case an object or pops in spend ten hours does something gets a benefit i think that's got to be considered i think the court has to say well wait a minute you saladin here and very didn't didn't take much risk i think that could i think that's legitimate to consider that in that situation what about the point that assuming i think he conceded that you're entitled to reason lowry rates and a reasonable number of hours for the lodestar but i heard his argument being that it's unfair to give you a large percentage of the seven million where the non conflicting class class council were not awarded  a significant percentage of the the the short flip answer to that is they didn't do as good a job and didn't do the things we did and i mean that i mean i don't mea me let me expand on that the un conflicted council weren't the driving council earlier in the case that was definitely a quire was they had the majority of the time they were the ones with the labor and more then after those those on end their time was quite quite high and so when the district court came back and said well i'm going to cut your time and i'm going to give you a multiplier because most of your time was defending this appeal i think that's that's completely understandable and reasonable you don't then turn around and apply the same thing objectors when their situation is the opposite situation was you spent time prior to this working hard on this on this before picture issue you took it up on appeal worked very hard and completely one came significant distinction between objector risk and non conflicted class counsel risk they were in it from the beginning so they assumed a larger risk if i can use that litigation from the get go before any settlement funds were ever resolved but if i understand that argument correctly then if i initiate an objection i see a situation and say i think i can i think i can get money from these lawyers and move it to the class how is that different from saying i'm looking at this article in a newspaper that says there's  perhaps and i trust violation i'm going to go in hit these guys file some papers in court and get them to give money over to the class same thing the only difference is they started a little earlier right the same thing i mean i think you have to acknowledge that there is a difference  i guess your point is it's not a material difference there is a difference in the risk that the class council face from the very beginning which is resolved whatever that risk is by the time the objectors come in because the money is now on the table that's right and i think that i think it is sir i think it helps my point which is to say that risk was resolved two years after they filed the case in this case they haven't had that risk for the la after they had it before the defendants ever agreed to put any money on the table that what i'm trying i'm trying to explore with you with the yes in the risk and i think rightly i think that is a distinction with a difference with respect to what kind of risk but it's working on it just to just to take in from another perspective as a lawyer who is qualified to do both class actions and objections i have to ask myself should i spend my time doing in objection working very hard issues there's no press and i've got to sit down and actually research and put arguments together or should i go file cookiecutter class actions punch the card put in my time kind of class actions that may drag on for years and involve they might hundreds of depositions travel expenses all over the country production of millions of documents i mean all the things rarely and i think as we pointed out there are lots of attorneys making a benchmark out there in class actions for doing  just spent eight years on a case i think that least as i can do something much much easier my wife would be happier all of that and so i think if the if the if the courts are really serious about wanting to bring competent counsel in to do these cases to challenge settlements they need to pay them when they are successful and i don't know of any other case where an ejector has been as successful as we were in this case so i think that i think that is  the the takeaway from that is that this is an outstanding case an outstanding job certainly an conflictive council did nothing wrong but then again they didn't do anything special either so i think comparing and saying well you can't make more of a  multiplier than they did it's exactly wrong in fact we should make more of a multiplier that there may be another case where i do something unimportant and they do something great and make more of a multiplier and that will be fair then  one last thing with respect to the district court's reduction of the the lodestar point seven five reduction that no matter how you try to shore that up after the fact that was based on what is simply a refusal to follow the mandate roger used to and saying and saying i don't care what you say ninth circuit i was really the one who took this money away from going to i'm going to have that i'm going to have that  should be based on a percentage of benefits i thought it said that benefits should be taken into account but that our president seems to me would still let the district court decide whether to use a lodestar or to use a percentage of benefits and that decision we look at for abuse of discretion i think you're right on both of those counts juggle  the prior decision the rodriguez to decision does not say that it has to be a percentage that's correct and it does say that the benefit had to be taken into mandate violation issue oh i'm sorry just go i meant to with respect to the district court's earlier the district court had said snyder council weren't responsible for the forfeiture had said that was this court's initiative this court being the district court that is what the that is what the rodriguez to court said was