and that means according to this court jurors prudence in most recently chin chin versus chrysler that the amount of attorney's fees is a matter of substantive law that must be determined by reference to the state law  therefore the federal courts will not look to state law to supplant federal procedure that's kind of what we're dealing with here is no fees are not procedural in any way rule twenty three h is a procedural law that specifies that a fee request must be made by motion the class must receive notice and they must have an opportunity to file objections and that's as far as it goes as must be reasonable to correct the car and it also says if you come from what two sources even agreement of the  well thanks can be imposed but that's a that's under a different rule it's not under twenty three eight i know but suppose suppose congress passed a law that said under rule twenty three that you know if certain types of things occurred  date they have not done that federal court how you know you might mistake court i mean you don't think the courts can regulate their own business we would have to look to the states well in word of attorneys fees not regulating their own business in the first circuit and in r reasonable under the contract and i was not a kind of a different situation no your honor but there was no set of amount agreed upon here in the original appeal in two thousand and ten volkswagen i thought when the  judge approved this that an amount something around ten million dollars was agreed on was not agreed on in this case before the second time around your honor that's was worlds away right folks who are going agreed not to oppose the request up to that amount they did not twenty eight united states code section one thousand two hundred identified those costs that are awarded and they did it to obtain national uniformity so that the things that may be awarded as cost council fees for example under state law won't be awarded as cost under federal law so how is this any different what we're not we're not appealing the award of costs number one and to the extent that there would be a wire attorneys fees different thing costs why because there are substantive under erie and because the state of i'm curious to know your response to that the assertion by the west the pallies that the class action fairness act criticizes abusive upside down federalism imposing state law on national class act well the class action fairness act does impose certain restrictions on an award of attorney's fees in federal court and then to answer judge van antwerp is question there is an example of a statute passed by congress and it does address fees to this extent that if a fee is based on coupons you have to look at the redemption data rate and and by then let's talk to the the policy point which is the west the police are making which is that calf a tell us you something and shady growth tells you something which is previous assertions that this should be state law are are wrong it's it's an inversion of what ought to be the case when you're talking about a national class action well i again i disagree with shady grove because i think that was limited to a clearly procedural rule which is classification it didn't affect the substantive right that new york had created under a statute it gave everybody the individual claim under that statute in shady grove and rule twenty three other fit the supreme court in shady grove merely said that rule twenty three is the procedural rule we're going to look at here the denial of the right to certify a class in new york is not a substantive part of that law apparently the third circuit has this stated in jersey says that fees are a matter of procedure not substance right right but that's a there's a so you so we're supposed to say hey it's substantive purposes but once we get to new jersey it's all procedural does that sound right to you well there is that dichotomy of federal law federal courts i'm uncomfortable with it in a created that doctrine therefore it i would be surprised if shady grove intended to sweep all of that away and you know the entire erie doctrine in the context of class actions but i would urge this court i think in revokes wagon from the first if you got it right i think the judge was far too comfortable in declaring a split among the circuits and the class council kind of latched onto that i mean we're headed to the supreme court if that's the case because i don't think whatever your view of this what the rules should be in the wake of shady grove it can't be different if there can't be a split among the circuits on something as fundamental  mr epstein on behalf of my collection on behalf of dr braverman i adopt mr pence's argument with respect to the erie doctrine but want to add that with respect to the choice of law the last time this case was appealed this pant a different  of the circuit said that the issue of the fee when there was reason one not would depend the choice of what question would be depend on the settlement agreement and the settlement agreement the first time said new jersey l change the choice of law provision the settlement agreement is still states that all provisions are to be construed under new jersey law they could have they could have changed the provision they did not and i submit to the court that it was not changed because volkswagen knew that the denied under six thirty six c because there is there was no report recommendation rendered that we could appeal to the district court but you didn't appeal so then to the district court right i mean you waived that then we submit we did not what we did not appeal you ri general jurisdiction over the entire case so it's that was what was typed on that first line decision versus report recommendation that is the basis on which your rights i think that is an important issue if it was a report a recommendation we did not appeal it would be deem weight i grew that it's i did our position know that it was not issued as a report recommendation we tried to file directly with the district court and it was moved to the magistrate judge at the time with just to supplement mr pence's arguments in addition to the settlement agreement because eighteen point one seven we said the district court ignored that choice of law provision by saying in this case volkswagen and class and the class agreed to a fee amount the settlement is on agreement to the fee volkswagen just simply says in the settlement agreement says that volkswagen or the defendants will not oppose this the request for a fee up to that amount but the quote is just thought to be a petition it doesn't say great we agreed to that amount which i think another settlement agreements in class cases it says we agree to x and i think volkswagens positions and before this court and district court opposing the fee request strongly and i think their own words were vehemently opposed in one of its briefs without many reasons which we adopted again the choice of law provision was not changed it is a diversity case and the parties agreed that new jersey law would govern the settlement agreement including the request for fees what's the argument that if that's accepted voyeurs enterprising council tried to find a more favorable law in michigan or ohio i think on its face that would be problematic but on the secondary issue is a response is that the district court always has the right to oversee the field requests that have an as a matter of procedure has to oversee to make sure the fee is reasonable under the governing law which we submit here is is is new jersey for soon to the settlement agreement and under under erie briefly i can see my time is up is we also submit that there whether it's state law which is it should be slowed star we should also submit that the district court pursuant to our papers incorrectly apply federal law it should have been lodestar as well and remained we asked that a full vetting of the lodest be examined because here it was a summary of just simply across check thank you thank you good morning jeffrey chase on behalf of all defendants we we actually thought we won once before this court we made a motion challenging the brave humans appeal to the extent they were challenging then magistrate judge what's his order in judgment on fanous if i understand counsel's representation before this court today that they're not challenging fairness in any way i will be very brief as well but i was a bit unclear that's what i heard him say he's the final fairness hearing the first phase of it mr epstein told judge she works directly when she asked am i correct that this is a non dispositive motion and either myself or the district judge can decide you're correct that's on page seventy three and seventy four of the november ninth transcript so that was conceded and judged for the right to rely on that i think that ends that issue i'd like to go if i could now to the theists you and i'd like to start construed in force and governed by the substance of substantive laws of new jersey attorneys fees or procedural we all know that this court and chin said that  substantive or iri purposes and so we're looking in new jersey and then when they looked at the new jersey law they accepted the new jersey court representation that this was being treated as procedural but that didn't mean they were applying new jersey law they did apply case are not the issues in chen it's very interesting and again we chose the procedural law of new jersey the substantive law of new jersey because nobody had any intention of jettisoning the federal rules of civil procedure on any issue  chin cite is very interesting to the the issue you brought up where it says for every purpose is fees are substantive then we drop down to a conflicts issue and we say now it's procedural and that's how this california statute wasn't applied for our purposes in writing that contract we understood that for choice of war purposes europe purposes we were choosing only the substantive law new jersey very interesting the abrams case is cited for that proposition and i think abrams and judge been asking i think your question is right on with abrams case is the case where it was a law against discrimination case in the federal district court obviously that statute applied to the fees and then when it got to costs the court very clearly said that rule fifty four d one applies to  three age by its terms seems to be saying that in the in the nose application notes they were not trying to create some new source of law for fees here  that the fees must be reasonable and as we've pointed out in our brief i think yours pointing out the citation from the volkswagen case in the first circuit they only cited that one sentence the next sentence says you have the right to recover the fees if by agree or by law in this case we had an agreement that the fees would be paid the amount was set forth with a clear sailing provision and that really is the end of it we from our perspective don't think there's an eerie issue we think this is not an eery problem if you look at shady i'm sorry because because if you look at shady grove it says we don't have to go into i think the quote was the murky waters of erie if you have a federal rule of civil procedure that applies which clearly rule twenty three h applies in fact the advisory committee  hand you should take rule twenty three g and twenty three h together so to untether them other than where you have a state fee shifting statute which is not this case would really be in congress lowest schley you're asking us over rule our statements that theory purposes feel law is substance the recent decision of the first circuit should be ignored and looking at very similar circumstances and we are out on a plank no i'm actually asking you not to move because i think all you're doing is clarifying again chine is i think the case we're talking about it's not a class action case i don't think it controls your well i'm i'm having a hard time seeing how that makes any difference whether it's a class action case or not a class action case it says for yri purposes fede issues are substantive law that's the direct language of the case and what difference does it make whether it's a class chin with all due respect what abrams says is in a state where a state the shifting statue controls and there is no federal rule that also applies then you look as a substantive issue how do we get around what we said though even if assume we thought you were right that the chin panel got it wrong it is what it is it's it's binding presidential authority from this circuit which this panel doesn't have any right to say they got it law i don't agree that it's a change because again change does not deal with rule twenty three in the citations to abrams your case is the third circuit case where in that case they said the court says because there was a state the shifting statute and no federal rule clickable that's what happened in abrams so it's internally consistent to hearken back and clarify and say look in chin that's where we came out because of the procedural posture because of how that case was set up it was not a class action rule twenty three did not apply so you didn't have a conflict between rule twenty three eighty and whatever the state law with this so you don't have that issue in channel it's a different case here there are two different situations and you can't have a a into i don't think there's an internal can see inconsistency i think it's just a clarification to make sure you understand when there's a federal rule and this is what shady grove says it's what sit back says it's what all the supreme court cases in that line  say that it's not true when you say that's what she wrote says she grow seems to be say when you have a rule which is clearly procedural and the aspects of twenty three that they were looking at not twenty three age but the pieces of twenty three that they were looking at they said this is clearly procedural not substantive that it doesn't put you into an eerie problem the it seems well i'm i'm having a little trouble making the leap that you want are saying is no leap to say that twenty three age if viewed as purely procedural doesn't affect substantive wall when there are lots of cases not just chin but lots and lots of cases that say for yri purposes fees are substantive was i think to answer the question as best i can rule twenty three h is clearly procedural anybody can say the anyway you want but you can't break apart if it's not procedural my reading of the cases it's invalid right now is there a distinction between whether there's a right to attorneys fees  and the amount of attorney's fees in other words wouldn't the question of the right to attorney's fees be a matter of state substantive law but if you've agreed to attorney's fees than the fed do sherry duty of the court supervising the class action to assure that the fees are reasonable as a procedural matter i would i would stake it a step further and say that the right to attorney's fees is a federal procedural matter and the amount is a federal procedural matter because the rule says reasonable attorneys fees and it would be it when you said walk out on the plank you would be running off the plane if you were to change what this court has done in diatribes it was a state diversity case state law claims nobody mentioned nobody mentioned a conflict so as far as this court knew everybody was agreed and satisfied with the application of a particular body of law now maybe somebody should have raised that maybe they should have said wait there's a conflict here but as far as we knew the body of law that we were as ten billion dollars worth of value when everybody seems to read it's not what's what are we to do with that the first of all that it's important to get the right facts in the context because what's been argued to you in the briefs with all due respect is not the accurate facts what happened is there's an eight million dollar reimbursement fund that is not all of the relief there's forty six million dollars of actual dollars being spent with volkswagen pain dealers to change and fix cars it's never been recognised by objectors that's real money that's been spent plus another one point four one point six million dollars to poseidon out the owners that's all real dollars that have been spent now within the reimbursement fund about five million dollars of claims have been made against the eight million there's to be another five years whereby volkswagens got the ability to do good will when people make claims and say look this is happening to me if it's outside warranty to pay that three million dollars out as a matter of good consumer business we would expect  going to want to do that you're talking about something that is de minimus and i don't really agree judge schwartz did and this court in floor of the case found that her valuation was reasonable and that it was appropriate to accept the testimony of the economist to the extent she did because she obviously rejected parts her evaluations already been found to be reasonable to revisit that at this point i think would be a violation of law of the case and i don't think that there's anything in this record that says there's any significant issue because again the facts will do respect that or in the briefs that were one thing that's just later said jen was indisputably a class action case it was filed with class allegations and it was governed by rule twenty three the fact that it was later abandoned because chrysler voluntarily started a recall and therefore a class was never certified doesn't always a manager does it matter that it was a class action or not a class action to the question of whether it's substantive law go you know you're right it doesn't only matter to the extent that there's this allegation the rule twenty three age that somehow altered the analysis of the i wish that the west objective had spoken because to me the most interesting argument is that calf was somehow specifies the amount of the fee as opposed to you know rule twenty three age amorphous standard that it needs to be reasonable now where do we find what the content of that word is how do we define that word will cast this as an acute part of who part settlement any fiesta be based on her demolition data but it also has a subsection b i believe it says for out of the reimbursement find one hundred million had been left i think is an important question under the baby products case because there have been no other claims that at that point only five of eight million have been paid out so there is three million dollars that is le over that would be paid to charity and that was never reduced from the settlement if we go back on the federal law will answer mr slater's point which is there are several years left here and it's still too early to know how much of that is going to be spa out if we get into a not analysis of the claims that were made there was a diminishing number of claims being paid with there just aren't any claims being submitted are very very very very very few claims of being submitted and it's five