your honour's is that the district court and making the fia ward allocation in this case did so after it had twice rejected the proposed settlement that had been reached and joint intervenor council for the express purpose of that's the controlling factor by the court's own terms a stagnation had occurred that it resulted in as he said before the court twice rejecting a proposal that now was standing that the settlement included a fifty million dollars common fund and in addition the stagnation also included the communications breakdown between the lead council and the named representative that extended all the way to the named representatives attempting to remove the lead council at that point the court  joined intervener council directed them to give this settlement process one more attempt with a ninety day window a very short window as sure that the court was asked to consider in making this the allocation in this cause was the contributions that intervene or council had made in that intervening short window of nine thousand and ninety days the court directed and intervene or council to attempt to take into account under the proper legal standard which was the question of the contribution to the settlement that had been rejected what were your question leads your honor is that what the notwithstanding the fact that the issue presented was the contributions the district court made a post settlement feet and allocated post thank you jonathan imposed a post settlement feel occasion and court's case law is really really quite comprehensive in two ways it defines abuse of discretion number one as a matter of deference to the trial court on the other hand it provides very specific guidelines when feel occasions of being are to be made within which the discretion is to be applied in industry in the overall feel ward that was made to all attorneys which included intervener counsel of seven million dollars overall fee award right that's what that test is supposed to do allocation is a somewhat different issue is a good question your honor and i again i think the there's there's two problems in the in the court's mistaken yes the judge talks about that at the very beginning and says general things about the supplemental word because that's part of what she's doing it was quite clear to me that when she gets to the point of looking at your fees and what they should be she's talking about what contribution was made to the overall case that's not the language of a supplemental award she's looking at the lodestar amounts and what of that she's going to discount and what she's not going to discount that's not about that's not a factor that only is relevant to a supplemental award that's about assessing what the contributions are and what's an appropriate payment for it that's what she's doing and maybe she didn't do it right or maybe you don't like the result or whatever but i think it's just pieces to say that somehow the judge thought that what she was doing was giving you a supplemental award we're using the standards that apply only to supplemental words with respect your honor that the conclusion of the court's award is intervenor counsel are entitled to be compensated for their time incurred in the her appeal process monitoring the claims of ministration process post settlement and their participation in the settlement negotiation process yes what is that what is the settlement negotiation process your honor there there was no settlement at the time intervener counsel was joined so that he and then you participated in the settlement negotiation process that resulted in the final settlement and that's what you're being compensated for so what do you i don't get the complaint about that piece of the statement she says you were participating in the settlement negotiation process not you were pretty disappointing in re doing a settlement or something you participated in the settlement negotiation process that's what you say you did as we said in our brief with respect it's not that we discount that that was taken into account however what was what was presented to the court was that issue the post settlement issue was not presented to the trial court there was no hearing  on that issue no consideration in the briefs and off the court one off in that direction on its own if the court wanted you're saying they should give you should give you less because she took into account what you did with respect to the appeal and she shouldn't have fair question your honor we're taking the risk that if the cases remain and that could be what's happening no but isn't that what your argument is that she's looking at she should have been looking into that that would that shouldn't have been factored in at all to how much you ultimately bil for and what percentage of what you billed for you should have gotten that's what you know your honor with respect what we're saying is that on that point which was the controlling issue in what happens presented to the court that the court should comprehend at least some findings undergo burgers at least assessed the matters it is she was some degree of specificity because that was the issue of the that was the the  not considered our st submission which had been presented in the in the proceedings that involved the establishment of the overall feel or we made a submission that explained in much more detail than just the simple lodestar statement again no findings no reference to that part of of the case there's no there is only a reference to the submission on the post settlement award and post settlement factors which was presented for our lodestar cross check additional time the court references eight hundred and fifty odd hours that was the that is judge was taking account of was the fact that this was a litigation that proceeded for years got to the point of something that was very close to a settlement that the lead plaintiffs and others objected to and therefore you folks came in and did a terrific job of closing that gap but when you look at the entire spectrum of what the efforts were you were doing a discrete project of negotiating that final settlement very valuable and then we look at what is that worth in the grand scheme of things out of a total appropriate award of seven million dollars that is inappropriate when it is phrased that if that's what the district judge was doing that inappropriate as not appropriate it's a  summary but what's missing is that the body of the hours that we employed in the case the body of the hours over eight hundred hours is compared to one thousand one hundred dollars with the post settlement the body of those hours essentially got discounted without any real explanation and goldberger is available all the you know if you look at what the attorneys who are fighting this case for years at the haircut they took on their lodestar amount is yours greater proportionately than the absolutely fair point your honor where's the finding on it if if that i'm as any more you as a matter of fact if we send this back are you going to be able to establish that you took a bigger haircut than they did well but the issue is is that lodestar measurement is that you procure evaluation that should have been applied our suggestion is the abuse of discretion is in failing to identify which was the basis that the decision was made and doing what you did which is to simply stating a summary without any explanation of that now so your time is  looks like the next person to argue is jonathan har who is pro se for five minutes thank you your honor honors i recognize that this is quite an unusual circumstance we find ourselves and where you're arguing that there's no benefit to the class and much more seriously no benefit to society and all the attorneys can request really or something from a settlement fund on the assumption that they provided a benefit to the class as personally the defendants force the sale of our dinner on january th of this year and  we as for the class at large according to the federal milk a marketing administrator we've lost eight hundred and thirteen dollars their reforms is here in this order and that's the largest year to year  decrease ever recorded and that's from a smaller farms ever present before excuse me as i said in my reply brief the chaos that that is the behalf of the class members of the other the other class members i have filed in the district court number of times i filed on a different retaliation claim i made counsel aware of the fact that in this what sets so long tack case they opted out of the original case and they they took the case back with attorneys that we jointly found   the the settlement settled for zero dollars two cents per hundredweight so basically what i'm here to say is a class action system is set up to provide benefit to society there were ninety principles of bankruptcy law it would provide judicial sanction to an economic crime of national proportions the failures of earlier court and class action firms have left this court referring to the texas court facing the profound antitrust problem at the heart of this bankruptcy case so i'm not saying that this money that existed or exists in school or wherever that it should be distributed to the people who were actually working for the benefit of the class  i don't recall if i mentioned that in the instant case the settlement fund was created out of our milk checks so so it's you know it's even more applicable and i would quote thurgood marshall  said do what's right and let the law catch up i don't know judge pool recall she actually had a conversation with my son joshua as you syracuse university and mr lynch obviously sort of this case before your honor excuse me judge lynch yes so basically i contrast their activities i contacted my own bods person something mr smith talked about quite a bit she s authority to do anything she she can simply recommend or whatever and the the defendants have not followed the settlement protocol in the sets case in addition to the much improved damage award  recognise that the f a was already taking their pound of flesh so yes the settlement was dispersed among the farmers but my argument would be that there was seven million dollars left that the attorneys ended up with for basically selling my closing is the court has the authority necessary and a unique opportunity to send a clear message to lawyers who line their pockets using the class action system to make vassals of their clients justice marshall did not get a seat on the supreme court or his name on this courthouse by playing inside the law the box the police have crafted it the monies are to be equitably distributed as law and accurately they belong with our side representing even our foreign argued at the vermont state house and the state house which incidentally mr smith was encouraged to get involved by that same state as i wonder if they would have encouraged him had they know understand that the settlement has already been approved i understand that you understand the attorneys the award has already been and i understand this is about is whether mr smith should get more of the loot than the other lawyer erect and are you telling us that he should not get you telling we've been corresponding with the department of justice we've been pushing this before i'm asking you what are you we provide a benefit to the class i'm asking you to give us folk for five original class representative farms the remaining five thousand five hundred i don't me is brant johnson who is the lead counsel for the other subclass and i'd like to reserve or allocate two minutes of my time to ask thank you this course determination of whether ifill location is reasonable depends on the circumstances of the entire case and judge lynch had it right intervenor counsel's argument begins at the last ninety days of a case that has not lasted a decade this case was filed in two thousand and nine on a contingency plan if firms are bearing all of the risk intervenor counsel shared none of that risk the case was in litigated for five years hard all the way to the ev trial intervener counsel was not part of that litigation we counsel reached a settlement agreement a signed agreement with the defendants for fifty million dollars and non monetary terms that was accomplished on the eve of the trial scheduled for july th teen intervener council had no role in that settlement only after the fifty million dollars settlement was signed intervener council tried to intervene and even then the district court permitted intervener council to intervene in tw on the condition that they share quote the same responsibilities and obligations as existing subclassed council as a joint appendix one hundred and thirty seven that was the condition insisted upon by lead coun to avoid an unequal windfall of fees for a later arriving council it was in this context that the district court considered the various councils contributions and there were seven different because the deal just didn't go through wasn't there a hold up at the end is that why they were appointed there was your honor the they after the fifty million dollars settlement was signed the district court did not grant it final approval because of some concerns with the process by which the settlement was negotiated and because after the court allowed mr smith and mr cassidy to intervene and the court also appointed six additional class representatives and it was the combination of of the intervenor council plus the additional six class representatives who all together participated in the goshi ating who represented the six named newly named point is  four of them were members of mr johnson's class and two of them were represented by mr smith of the issue that mr smith raised about the explanation of this record provided something they asked for compensation for met over eight hundred hours of effort and the district court says i'm going to war in three hundred come incision for three hundred and sixty six hours hours the court's opinion identifies the issue the court had with reviewing mr smith's records because he didn't submit any billing records and so she was the court was not able to give  the approximate haircut that all the other counsel talk oh it's just a standard percentage reduction across the board the court the court the court awarded fees that were enough to pay about forty percent of the lodestar of the collective group of lawyers at the time of the court's feel ward of seven million dollars the lodestar for the collective group of plaintiff lawyers was about twenty eight million dollars so everybody was going to get paid less than what they claim to be owed and i think the court but isn't that it's mission kind of at odds with the rationale which is that those attorneys were claiming compensation for stuff that was not so the explanation that you just referred to is in the court's opinion there were about sixty five thousand dollars of time that was claimed by interviewer counsel that predated their appointment as a class as a class counsel and the court did say that they cited no cases that allowed to them to be compensated for that amount of time so that would account for sixty five thousand dollars of the of the reduction the court applied there's a little additional reduction that the court applied and  i think the court explained that was because she was not able to identify and confirm all of the hours that were billed because there were had been no billing records submitted  the original award was not based on a lodestar it works out to be forty percent but the original fee was a contingency type of award right it's a percentage of the  percent of the of the full load start had been requested the fees allocated to intervene or council are not unreasonably and are not reversible ie small considering  is the district where the district court did was to not doubt certain amounts and then come up with a number that wound up not penalizing them more and it in a certain sense they may have gotten more if you exclude the hours that the district court excluded they got more than forty percent of the allowable hours now i don't know to what extent that and go back and look at to what extent the district court to at your numbers before coming up with the fourteen percent in the st place but this is a very imprecise science we're talking about sentencing before where people's lives are on the line that's also a name for size science but awarding fees to class action lawyers to give them an incentive to continue to bring cases for the benefit of classes is also a highly in for a size exercise that involves a lot of very rough justice and indeed some district judges have been known to say if you want the salami to be aired in the court of appeals and how it got made you're welcome but why don't i lock you in a room and make you work this out between the two of you because the last thing we want to be doing is adjudicating the precise contributions of dozens of law firms to the ultimate outcome which a lot of the people who you were representing think was not a very good outcome in the st place and then we get these folks come back again saying you know maybe nobody should get anything and that's what happens when lawyers can't figure this stuff out among themselves and start to get just a little worried about who's going to get what out of this amount right and i'm just saying you know this is this is not the kind of litigation that typically reaches the court of appeals where lawyers are squabbling over the pot judge rice is pretty cheap i would say in this and giving a fourteen percent award was i thought a pretty reasonable one under the circumstances so it's not a huge amount of money that the plaintiffs are actually coming up with out of this she made that choice and you know you guys are squabbling over the  spoils when these folks are the ones who are ultimately hurt it's not a good look to say the least to not be able to come here and say you know we've resolved this because the only fight is about you know which lawyers made which contributions i'm not in a very good position to assess that compared to what the judge on the scene was able to do your honor may respond yes yes thank you  i agree with all of your points and we all of the law firms except for intervener council had reached an agreement to have an equal distribution of the money so we made that effort intervenor council did not agree  the word that the allocation to intervene or council by judge royce has given intervenor council more a larger percentage cut based on loans lodestar than all the other council who litigated the case for nearly a decade and we think that and we submit that there was no no abuse of discretion by the court and in doing that and  and i'm not going to address the substance of the theatre the court can stop me at any time it likes the harsh make a number of false allegations about councils conduct in their papers they're obviously not germane to the issue that's on appeal many of them are the same allegations that were made when the horrors moved to remove subclass council five years ago the district court held it to day evidentiary hearing about those about that motion before denying it the court found that it had no reason to doubt the representation of subclass counsel were quote acting in the best interests of the class consistent with their fiduciary duties that's a j court also found that numerous concerns regarding subclass councils performance quote arise out of strategic and tactical decisions which subclass council are entitled to make on behalf on the classes behalf and do not constitute actual misconduct on the district court and i the hard motion in the horrors appealed the district courts are crucial of the settlement in this case this court as judge lynch may remember affirm the district court judgment that's sixty seven dollars fed appendix ninety three dollars this court also noted that the district quote the district court conducted a lengthy hearing into the objectors challenge to their attorneys conduct of negotiations and found there was no evidence of impropriety that's at ninety five dollars then found quote upon a full review of the record we find no reason to disturb the district court's findings this court also found that spite the harz concerns and dissatisfaction quote the settlement was approved after careful consideration by a judge who were persuaded over the litigation with energy skill and zeal to assure that the interests of the members of the plaintiff classes were protected it should i had to take your point your honor the problem was twofold and in the course decision that the court announced a settlement fear ward from interest earned on the settlement that had been paid out settlements not only been reached and paid out the attorney's fee to leave counsel's been paid out the only thing that was left was five hundred thousand dollars in escrow that was kept too in case we could not resolve and i thought that mistake was correct part of the reason we brought the appeal was to ensure that that mistake correct but the underlying problem is still there and with i think you know the questions have really raised the issue which is it's a very imprecise feet decision and on the key part which is our contributions you can't tell us why the court made this decision and we are admittedly taking the risk that if you remained it we might end up with less but the the application of the gulf berger factors there's no analysis of that and there's no analysis of the lodestar so that the calculation of how the numbers were actually reached you can't tell and it's very difficult to make it roughly the same here i think and i'm not trying to avoid the question i honestly can't tell because the number of hours and i absolutely take the point the last thing you want to do is to get into the math i absolutely take the point however which any opinion is eight hundred and sixty seven hours which was our time pre sell include the time pulse at home and it's over one thousand one hundred hours we put that in for a lone star checked at three hundred and sixty six hours against which did she measure i can't tell because that what happens to the balance of the five hundred thousand if we affirmed the district court which would give papers where does the other four hundred and two lead counsel and where does the balance of the money go there's five hundred thousand dollars in escrow and so if we are to receive one hundred and ten thousand the remaining three hundred and ninety thousand goes to lead counsel right now that's part of the seven million dollars and you're asking for a piece of the seven million dollars and the district court set aside a big chunk of that or a chunk of five hundred thousand dollars trunk of the seven one million yes you know under fifty thousand around the reason that's crept into fifty of it would go to them anyway and the important important thing which is most important to you as a small percentage of their seven million minus something than it is of yours yet is the spread between one hundred and ten and two hundred and fifty that's yes we're fighting and you know again i completely take your point not a good look tough you see your time but i'm a salt practitioner they the body of that time which the court speaks to eight hundred and sixty seven hours and then references if it's paul settlement when it's not that was the body my time spent on this case and the net result of what we did was to achieve  settlement and all we're looking for is to get our time and i take the point that they took a big haircut but it isn't that we're trying to get rich just to be clear i understand the look but really not trying to get rich just try to get paid hours for having advance the case to