federal law one under state law neither is broad enough to support the weight of the two million dollar fee award neither justifies such a dramatic departure from the way these fees are always paid in settlement of wage and hour class actions three basic reasons this case was settled mostly as to the fair labor standards that claim and smith action which the plaintiffs counsel in this case filed in two thousand and four after the district court have rejected the attempt at an end run around the f l a say o procedures in essence the case went from it started off as seeking representation on behalf of twelve hundred sales agents by the end of the case the district court and got that and reduced the class size to the hundred fifty seven sales agents who had properly opted in under the f l asay now although there's a case in the complaint that was filed by the plaintiffs in this case upon the alleged violation of the f l a say which is what led the district court finally to reject the main reason for the u c l claim which was to encompass not just the these statutes is that the case settled the plaintiffs compromised their claims short of the judgment so if the precise words chosen by congress and the f significant requirements that were not met here one of which is that the plaintiffs succeed and then there are three elements of the statute none of which were addressed by the plaintiffs in their fee application the district court they troubling me is kind of a catch twenty two normally you've now made this argument that program two of the statute in which is sort of a more factual predicate of whether or not the statute applies wasn't really invoked by the district court they've made the argument well that really wasn't argued by you below you were focusing on something else so now we're here and it seems to me that there is one of two possibilities on that meaning there's more and you can tell me one is that as to the specifics of what the district court might have focused on had it been brought to its attention that you waived that because you didn't that's why these would in turn never responds or what are they supposed to respond to the arguments just weren't made under ten twenty one point five so our position is that these we didn't wave anything if anybody waved anything with respect to ten twenty one point five that was the plaintiffs when they made their feet allocation highly unusual to see a i mean unprecedented as far as i know to see c ten twenty one point five being used as a basis to award these to the attorney class council in the settlement of a wage an hour class action or even in the judgment in favor of plaintiffs in a wage and hour class doctrine and contractual doctrine that's available to the plaintiffs here the plaintiffs that the inception of the case had retainer agreement with their counsel as and all of these cases and those retainer agreements provided that the counsel would share in whatever recovery by settlement or judgment or whatever as a percentage of the settlement amount which is known as the common part so by virtue of those retainer agreements and  is twenty five percent these would be you the only basis would be for the ethanol last night that's correct unless they somehow spent less they had an agreement with us which they didn't have time taxes the settlement that's correct incorrectly but the legal issue you raise is that you need a judgment correct and really a fancy judgment here in your view with respect to that did you argue in the district court that you needed a judgment or was the argument specifically lines sixteen seventeen page four seventy two lines fourteen eighteen i think in the recent which i remember being that pages fifty nine and sixty one of the briefs below these would argue specifically that there was a distinction in the statute between a judgment and a prevailing party standard could it have been argued more the very similar nearly identical statutory language in the context of the labor management reporting act and the elem ardea and they're the only difference in the statutory language there was the use of the word awarded to the plaintiff does that mean that there has to be a judgment could you just read that are saying if there is a judgment tourney series would be an addition to it but it doesn't mean that there's no the statute the language that says in addition to any judgment because without that language you know there's nothing that says prevailing party there's nothing even a says it goes to the plaintiffs this is a judgement awarded to the point it's not just in judgment not a judgment of dismissal but a judgment awarded to the plaintiffs we would be rewriting in this court would be rewriting the statute if it were to hold that the statute can also be interpreted i was looking up at the site to the key tronic court case decided by the united states supreme court in which the court said the efficacy of an exception to the american rule is a policy decision that must be made by congress not the courts the desirability of a fee shifting provision cannot substitute for the express authorization mandated by the supreme court and that they're in is i to me that's the umbrella under which the interpretation has to take place there is the and we live by the american rule the american will says the parties bear their own and if we're going to accept from the american role were i think nine thousand dollars ten thousand dollars and twelve thousand dollars each or something like that and in recognition of the fact that you know these were claims that were in their personal interests they had plenty of incentive to hear i simply can't conceive of a case where ten twenty one point five makes any sense in the context of these wage and hour class actions these are literally a multibillion dollar industry now per year that kind of money changing hands from employers to employees the incentive is there for the employees the incentive is there for the plaintiffs can sort of bring these claims they're bringing them and none of them and they've brought them off without reliance on ten twenty one point five there is some mechanism authorizing fifty awards therefore ten twenty one point five doesn't come into play the mechanism authorizing fia wards is by statute in this case that the let's say in california wage at the beginning of the case judge matsch or that's what they knew and they bargained for with their with their counsel the mechanism at the beginning of this case was f l s eight to sixteen he stated in the complaint the other mechanism was here because of the way that ten twenty one point five is written in the way the california supreme court has interpreted it we're arguing that it does not apply here does not apply the because there are so many mechanisms effect perhaps that is a perhaps that could happen where you take the settlement and it becomes incorporated into a judgment that the word enters now in this case the parties specifically bargained for  an agreement that there would be no judgment in this case they executed the stipulation that said there won't be any judgment entered as long as eastwood pays the money to agree to pay to the class members they won't be and so as a result there is no judgment entered in this case and the capital settlement agreements are only those two attorneys the settlement agreement simply provides that the attorneys fees will be claim against somebody because the class council had to go back to them and ask them for a portion of their recovery to compensate him for his work in this case that again was the agreement that he had with the p we cover it now after five and a half years of work on this case mr decided still waiting for painting one for his heart an excellent work on this case the fundamental objective of the california state law  the private attorney general provision the doctrine there that's implied in section ten twenty one point five is to encourage suits just like this suits that enforce public policies like the right for the workers to get their wages and they do that by providing substantial attorneys fees to successful weight against in such cases that's california state locks in the green case that's the california supreme court from two fair labor standards act the federal law as well as under section seven thousand two hundred of the state law the unfair competition law this settlement resolved all the federal and state law claims the district court found that there workers should be paid their statutorily protected wages whether provided on the state or federal law what about the fact that under ten twenty one point five there's three parts to it was presented to it if you only challenge once to once mr decide presented his fee petition in africa into the federal court the challenge was you not entitled to you waited on the year of settlement agreement which the court rejected the other challenge was you don't get it done that a fair labor standards act because if you don't have a judgment the court rejected that and you don't get it because you're not entitled to any catalyst feast on the graham and the court did a who've directly benefited from the settlements and got on average seven thousand dollars each and then you had this whole other class of twelve hundred people that were impacted on a catalyst basis when the employer vesely and all the state wage in our claims so when you compare the burdens on these for individual plaintiffs and the benefits of the public and force make it quite clear that the recovery here was not going to be sufficient to pay for the lone star which was a million and a half even the cost was fifty thousand dollars which exceeded the claims of the four individuals that most of the style represented so clearly meet the financial burden test whether it was litigated at claim that we weren't entitle to it under the catalyst theory because buckhannon apply either because graeme didn't apply and that was all the judge considered and that's what the judge you know you just heard the arguments that they made had plenty of opportunity to up supposed to be looking for faults from that the judge made a maybe he or she could have done something better if the district judge the abuse of discretion standard that they findings of the judge the award that the judge makes to  judge whether the ten twenty one point five stand it will make so what we're looking for now is that at this time the judge made the  factors we have conceded that the cost should not have been multiplied and so we're seeking a firm and some of the two million sixty thousand two hundred seventy dollars and twenty cents plus fees and cost on appeal that arguing multiple summary judgment motions all during the notice motion arguing that communication issues that led to a published decision did judge was able to assess based on all of the  absent class members who had effective relief as on a catalyst basis mr psi has no retainers with those folks no ability to collect anything from them on a percentage basis even if they did easily which is authority that other three statutes three shifting statutes precludes a ten twenty one point five we gave you and i twenty eight f letter a decision from judge henderson of the northern his hand on his this case and we can see that there any number of individual cases kissed austin finery weeks all of those cases ten twenty one point five fees were rejected why were they rejected in those cases you're honest because the only claims brought in those cases were individual claims claims that sex discrimination damages all wage in our claims for those individuals mr dishonest clients never brought these claims soley for themselves from the outset they were seeking class through each and collective action relief for everyone who was similarly situated and contract no authority that supports and every court that's looked at it including the major treatise on it discusses prevailing plentiful prevailing party three shifty the idea of putting in additional burden on a plane have to prove we have the critical ruling on the rule fifty six motion for partial summary judgment on the seven i exempt and once mr a side i want that there was no excuse for not paying people over time the only question was damages he was the prevailing party under the judgment test and was entitled to thesis as in horror ran which is a case that's been cited to you as in clemmensen which is a case that was in my twenty eight jail letter in addition we had the any number of other spots of summary judgment which would also support the judge any judgment test on fun a whole slew of damages issues such as the prepaid overtime and liquidated damages but then you get down to the settlement agreement itself which required as much as the east wants to say oh well the judge didn't have to do anything th that gave notice to all of the hundred fifty seven individuals invited them to his court room held a hearing approved those individual awards damage awards and then  wanted order on that and that order itself was a pure will by any one of those individuals if they had objected to it and that constitutes a judgment by any common sense purpose certainly under the liberal interpretation  pilots during the kind of factors you look at don't have anything to do with how much your deposition transcript or your filing fee and things like that so i'm somewhat at a loss to understand why there would be a multiplier overseeing this case had nothing to do with this case at any stage of the proceedings so we computed that in that figure the two million sixty thousand two hundred seventy eight thousand and twenty cents that includes taking out the multiply on cost we're not particularly here where the fees and fees litigation has been so contentious so vexatious still much additional delay and where the underlying risk continued risk which is the basis of those modest one point four multiplier i cases involved claims of individuals and that's why ten twenty one point five was deemed not applicable and i would say that's exactly why those cases are not distinguishable from this case this case ended up involving only the individual claims of the hundred fifty seven who opted in that's what the case ended up being about that's the settlement was for it's true that the plaintiffs first filed this case on behalf of twelve hundred but the district court rejected that and and literally gutted the class so there was no relief there the twelve hundred there were no beneficiaries in this group of twelve hundred in fact the plaintiffs counsel went to state court and asserted an entire new class action lawsuit under state law on behalf of those people that did not join in to this case with respect to the judgment issue under f l i say the partial summary education why is it that that is not a judgment under sixteen be the reason is that it didn't result in any finding of liability it was simply a ruling on an affirmative defense and there was never any judgement that would actually trial a distraction that it actually failed to pay overtime to any one of these hundred fifty seven not one of these hundred fifty seven ever prove that they worked overtime or that they weren't paid for the hours that they worked why didn't that happen because they threw in the towel they fought to a draw both sides were bloodied in the battle those sums sums plaintiffs won some battles he's would won some