good morning may please the court carried austin for the home depot the district court abused its discretion by applying a one point three multiplier to class councils lodestar for litigation risk and direct contravention of the us supreme court's decision and city of burlington the day which held that enhancement for contingency litigation risk is not permitted under the fee shifting statute there's so many problems with disorder that i'm perplexed about where to begin with that your contention that we can't even really provide meaningful appellate review for the fia ward isn't a right that is one of our contentions your honor however we believe that under a c l u barnes this court can using its own knowledge and expertise reduce the spear award and then the problem though is i mean if the district court hasn't really given us enough in its order to show us how he used the lodestar analysis we would just have to do that basically on our  own in the first instance i mean that's that's part of the problem is it does seem but if we were to say we can't provide meaningful appellate review of this order one of the things  wore it's not a common find is not a common finding that it is you know the the johnson factors ordinarily account for all the things that that someone would say they want with a multiplier and the district court certainly didn't suggest enough to explain how almost to apply or would be appropriate here well what more really would we need to say if we were going to send it back to the district court to make the district court do it right in the first instance i think your honor the first thing that this court would say to the district court is again we believe that you can look at this award and reduce it and utilize your own knowledge and expertise because i think satellite litigation on the terry species is not something that we want and therefore we start with the award of fifteen point three million dollars again and paragraph six the court did say specifically a multiplier one point three the same multiplier that the court applied and awarding fees in the consumer tract is appropriate and justified in light of the quote exceptional litigation risk close quote the class council took and litigating this case under city of for contingency is not permitted and therefore the fifteen point three million dollars should be reduced down to the lodestar eleven million seven hundred seventy three thousand dollars because as a matter of law no multiplier so you're that kind of a chicken and egg problem when the district court hasn't even really showed us enough to for us to say that it really used a lodestar analysis in any way that we can meaningfully review i don't know how we how we deal with it in the way that you're suggesting it seems like it's got to start from the beginning as a well your honor the court  did state in paragraphs paragraph three that the home depot adot that the court adopted home depot's argument that the lodestar approach should be used in the first instance to calculate the amount of  begins with hensley blue and then de specifically on the contingency issue as well as purdue and as you note the lodestar is there's a strong presumption under u s supreme court precedent that the  much about that without it being an advisory opinion when the district court hasn't really done enough to show it's done the johnson analysis in the first glance see my point i see your point your honor but i want to give the  alternative and that is it can under a c l u be bards and because we want to discourage satellite litigation address the fear war today by deducting removing the multiplier and further deducting for the time spent pursuing the unsuccessful claim for a preliminary injunction and when you look at the transcript the plaintiff's attorney said one point four million dollars and attorney's fees and that was spent on an honor what you should look at is the plumbing area injunction motion asked for a vacating of the releases and to stop the settlement implementation that relief was not granted by the court and the two point two five million banks who were not class members right the two point two five million did was set aside for banks that were part of the settlement class only two hundred fifty claims that meant that they were they ended up not being members of the settlement class that is true with the exception of sponsored entities who did in fact accept the arrow and did release their claims but claim that they could not make an informed decision because of communications that home depot had absolutely nothing to do with but when you look at what they were seeking and that's what hensley focuses on you can't just say settlement process that was not qualified by if it was misleading of course and they said stop the arrow process in its entirety and they did not achieve that one so we're going to basically did was it compensated class counsel fo trying to enjoin their own putative class members from recovering more than a full reimbursement that's precisely right your honor they were working against the classes interest and they failed and so the one point four million dollars that's the fees that they themselves stated were associated with the efforts to get this injunction take the discovery that should be taken off the top your honor and that should be reduced and therefore we think a proper instruction back to the district court would be on these pure questions of law reduce the award from fifteen point three million dollars to eleven million seven hundred seventy three thousand dollars because no multiplier could be awarded as a matter of law further are reduced that eleven million seven hundred seventy three thousand dollars by one point four million dollars to ten million three hundred seventy three thousand dollars to account for the discrete unsuccessful and discovery related to say and then finally a further reduction as more into it to account for the fees associated with soliciting plaintiffs that result in award of eight million three hundred seventy three thousand dollars so in the alternative church prior we that year that your request for us that we would that we would see that you can see that eight point whatever million would be a reasonable tourney's for your honor we believe that on this record looking at clear errors of law based upon the three clear errors of law that identify that constitute an abuse of discretion that is the figure that is warranted based upon this appeal so i just want to make sure i understand  so you're saying that if you get rid of the multiplier get rid of any fees attributable seeking clients get rid of hour joining the alternative recovery coffers you deduct all of that it results in a field order of a point visit three seven three three seven three and  you can see that that would be a reasonable attorney's we can see that based upon the errors committed by the district court that is the number that is warranted based upon th and i would reserve my remaining time to the record are thirty three forty four forty three five three nine fifty three cohen eighteen three twenty five fifty four fourteen three twenty three i mean that there are all kinds of objections to the motor plier here they clearly objected to the multiplier they argued that there was no risk their argument was not that produce or they or the other fees shifting statutes precluded the multiplier as a matter of law they didn't even cite purdue they or any of the cases they've cited in this court so the district court and with regard to the other our names they argue did they not class council should not be tense compensator for finding class representatives they did argue that oh no they did not argue that never argued that below and i thought you never happened there to argue there are two problems that argument your honor one the judge didn't compensate us for soliciting class representatives that absolutely is not what happened and there's absolutely nothing in that ad in the record that would suggest we spent two million dollars seventeen percent of our total bloodstar looking for clients that just didn't happen so what we would assert is that what this court should do is look at whether you agree with me they couldn't have objected to the lack of detail and the district court to warrant because it at and been done yet that's correct they didn't wave that argument but the district court's order so if they're right about that we have to send it back if the court agrees that it can't meaningful where you review what judge thresh did i'm sure but there's no reason there's no confusion about what judge thrashed it home depot  depot ask them to apply the lodestar analysis which he did they made in attack on the a r o process which he addressed it's not the attack that they're making  attack but they did attack the error process the judge addressed it what's the difference and what they did about that they are in here what they did below was not argue that there was one point four million dollars of our that should be excluded they said that there's no difference between the consumer track and the financial institutions track other than the ail are to they are owed time so that in doing a  kids the judge should use the same hours that were reported by the consumer warriors in their case which was a different case different claims took a year less time to settle and just properly decided he couldn't use that time made no sense and then with regard to the arrow process what he did is quite simple home depot wanted to communicate with absent class members  there's a local rule that set that restricts those communications home depot moved for permission to approach the financial institutions with their a r o offers while that motion was penn class counsel found out that obviously misleading and and coercive communications were going to the class members and they said listen they claim they didn't do those writing that's not the issue the issue is did a class member release his or her or its claims based on misleading or course of communications whoever made that the communications occurred as part of the process of soliciting these release he never had the fur growing on it we asked for two things we asked that he not allow these community to mislead in a course of communications go forward in the way to do that was to require that home depot submit his their communications in advance for the court to review the second thing we ask is that the court invalidate any releases that had already be obtained as you didn't do that happened we asked the judge to prevent the communications and less they had a court approval in advance and to invalidate releases that had been improperly if it didn't do those things you know what he what judge thrash decided to do was that based on the existing record he couldn't do anything other than he and he didn't want to stop home depot from communicating all together so he made a very reasonable choice what he decided to do was to require home depot to submit their solicitations and file them with the court and then he said i'm going to let you plaintiffs in fact he directed us to take discovery into the various communications that were taking place and then if we found that there were misleading and course of communications he would invalidate and home depot agreed that  proper remedy if that occurred so we went through an intensive discovery period that the judge oversaw throughout he had four different here it's in the six week period to closely monitor parties agreed to defer any ruling on whether there should be releases until after the settlement discussions because we knew if we got into that issue it was going to mess up the discussions that were t the result of the litigation was that the home depot had paid out fourteen and a half million dollars and they say auro payment for class members that had release their claims they were divided up into two different categories most of them were excluded from the class and they still have the right to challenge the validity of the release of they wanted to the other group related to claims that the judge had already found on the record or releases that the judge jury found on the record had occurred after misleading and coercive communications had been sent out and so what he did or what we did is we agreed to set up a separate fund for those particular institution and if they came in and said we released our claims because we believe we were misled or  there was additional compensation for them that they wouldn't otherwise have got so with regard to the arrow process every bit of work that we did was done at judge thrashes direction he oversaw everything we did throughout the whole process and all of that late resulted in money in the settlement so i'm not quite sure the basis for this argument that home depot's make this is about this is a you consider this a fee shifting case or a common fund case it is a common fund case fish shifting precedent has nothing to do with home depot agreed to pay this the as part of a common fund settlement i thought the settlement agreement said that home depot will pay attorneys fees quote in addition to the settlement fine and confirmed that any attorneys fees costs and expenses quote shall be paid separate from and in addition to the settlement fine as if that what the settlement agreement said absolutely and that's all that is as a matter of law then it's not a common find totally disagree with it is common practice in class litigation and is in the hundreds of reported cases including a lot of and in this circuit as well as other circuits i think it's the third in the eighth that it's typically address the issue but it is a customary way of doing it's a good thing what it does is allows the parties to separate the negotiations about the merits that would affect the class from the issue of attorney's fees and so what the courts have done and what the manual on complex litigation says you're supposed to do is to treat the separate fee and the common fund as one economic entity gets a constructive common fund what us case for that i don't recall the two cases we've there to circuit i think it's the do that's the that is the prevailing practice and if this court were to hold otherwise it would really shift the way that class a lot of class settlements o question we have to answer is if those eight circuit and the third circuit have said that is whether there reason that's something this court can review but home depot doesn't dispute the logic of those  why this is an uncommon fine case terms on a very unusual fact which is that home depot agreed the parties agreed to let the court make the decision about how much the fee would be leaving the methodology to the court that's why that they distinguished all the other cases that say that fee shifting analysis doesn't apply including a case from this court last october and is used to determine the total class benefit and the reason it's come it's one package deal it's the money's coming from the same source if the fee wasn't paid separate say it is coming from the same source but it's not a package deal that parties have agreed to separated out that but as one package it's one of part of one settlement but they haven't but but there's nothing in the settlement agreement that says that the district court in awarding the fee should lump the two together and calculated as a percentage from it now we've left the methodology to the court and that's exactly the point because under home depot's approach the met the methodology that would be used whether it's fee shifting or common f principles is up to appeal an agreement or a disagreement between the parties the you know a court has an obligation to oversee the reasonableness of the fee and exercise it's reasonable independent judgment to do that and that applies whether there's an agreement or not so that what home depot wants to do is take the tools away from the court and say you have to use fish shifting principles because we didn't agree on the amount of the what is the subset of rule of law that applies in order to decide whether the judge abused this question if we don't do that it's just that it's i'm revealed correct you agree with that i what makes one of these situations almost incapable of appellate review there unless a district judge tells us exactly how did he get to the standard needs to be made more explicit even though the parties agree that as far as lodestar goes that it was appropriate for the judge to use that then yes to tell us how he did it well i think he did it just accepted everything else said about it home depot didn't challenge any of the entries and all billing records or even chunks of time home depot never even asked to see or billing records and the reason that we've said and they haven't denied is that if they had asked to see our billing records which we submitted to the court on a quarterly basis for his review that we would have asked to see the bills of home depot's lawyers because those would have dealt with the reasonable miss of things and those bills would have shown that home depot stores were charging higher rates spent more time than we did and were paid what they're criticizing him for is abusing if this is his discretion for not doing things that they didn't ask him to do they never asked him to do it johnson analysis of a lodestar approach w and it is a very rare case when this court holds that a judge has abused his discretion when he didn't consider arguments that were never raised to him and this is not that kind of a case home depot raised specifically that the contingent nature of the fee does not support plaintiffs request for an upward adjustment that address the point of no enhanced meant to the lodestar for contingency or litigation risk the home depot at let's say did you make it clear in the district court it was to use the load strong yes we made a very clear right in our act to make it clear in the district court that a multiplier was to was inappropriate for the same reason that you are doing now yes because we said and this is a direct quote from our briefing that contingent nature of the fee does not support plaintiffs request for net upward adjustment close quote that is taken verbatim from our underlying briefing and your honor under we cited to you the sida the fifth third bank case that permits issues to be raised for the first time an appeal in five discrete circumstances so to the extent the court finds any of these arguments persuasive it should still nevertheless consider the issues raised by home depot because they are purely legal questions and refusal to consider them result in a miscarriage of justice in addition your honor i want to address the point he made about the arrow process what he leaves out is that on december eighth they file their motion for plymouth injunction on december eleventh we oppose on december fourteenth was the hearing the home depot a motion affirmatively letting the court know about these communications about our aero settlement process and we submitted a proposed order to the court what mr campbell doesn't indicate is that on the day of the hearing the court granted it home hearing on december the fourteenth by having its proposed order entered your honor i want to address the common fund issue this is not a constructive common  settle the third in the eighth circuit have what he says the right not quite your honor a construct a common bond involves two agreed upon amounts the fund to be paid to the class and the an amount to be paid  fees and all the cases cited let's talk about johnston first from the third from the eighth circuit there was a clear sailing provision and which the defendant agreed to pay up to a specific amount of money a finite amount and to not object if the fia ward did not exceed that amount it was fifty seven thousand five hundred dollars and that since there is an agreement between the plaintiff and the defendant as to the attorney's fees just up to a fixed amount and an understanding that it might be that that amount  fun case that the facts of that case are very important the plaintiff filed a fee petition g m did not file any objection to the fee application in other words g m agreed with the amount of the attorney's fees the nine point five million dollars so in both those instances there's an agreement so yes there is an agreed upon bond yeah but it agreed to that amount but then that is the district court ward an amount above that no actually and that case the court vacated the order and remained it there were a lot of other issues that the circuit was concerned with with that particular solomon and so they essentially vacated everything and sent it back but those special distinctions are important to construct a common bond there's either an agreement as to the amount of attorneys fees there is a clear sailing provision in which they depend it agrees up to a certain amount it was something about the reasoning of both of those was not necessarily persuasive and they said well them money's all coming from the same source world and that makes it a code common fund because it's a package well if that were true then every settlement where there's an agreement that there will be attorneys for your ward would be a common front that's exactly right your honor and that's why the federal fee