was restoring the oval office forcing the repayment by the city to bring back over this current and making the coast permanent for people's lives why would you be entitled to what the and get paid for your time we're not we're not looking for one point two we're looking for a total of just under one we're saying that it's five times you know the most part all right you want you want to fifty from one side and the result a common fund basis we have helped produce a benefit that totals somewhere between depending on when you cut it out to the minimum of three hundred million dollars but but that's irrelevant if you're something approaching the value that has been pretty big statutory thing really when you think about it is to compensate is to encourage plaintiffs even who have no significant monetary damages to bring cases and so the result is that a combination of the two color one offset by the other a million dollars offset by the two hundred some thousand that the city would have to contribute adds up to a very reasonable fee whether we're talking about two hundred thousand or the lodestar two hundred fifty i think an increasing that award class counsel their time that the defendant is going to happen right and then we're going to assess the class another seven hundred fifty thousand not just those cases are rip those cases are superior beverage and but unisys there's a bunch of them that are side to because the concept is there's a fee that comes from the benefit produced and there's a fee and really because the statutory he belongs technically to the plaintiff not to counsel that offsets the amount that the common fun produces and the true elements provide an incentive to do great work addressed well and you have no case where under the civil rights act they've received something somebody says something above and beyond the us that's a tory in heaton actually what happened was they determined that he couldn't do the statutory fee but they gave a common fund free and so when he didn't that was the supreme court awarded that substantially mr shapiro probably oh yeah that's true  in your complaint did you say something about i could get fees in the civil rights somehow somewhere when you file this case that the he was known that somehow you were connection in this case to the civil rights we probably have a request for fees it or not but that's not my question my question is could you cite i think the answer is no i don't know to tell you this that i doubt it i think i think you're probably right that it was  a five beat that there's two ways to do it but what you're saying is well we don't need to cite in our complaint we don't need to tell anybody that we're going to bring this into this act and then w go later on we can follow up a brand new case and get these under an act that was not in any way involved in our original case that's what you're saying you know what you're saying is that the feet entitle them springs from having this is a bridge no this is this is the case that what it was it with the but but it's if you're you're bringing up the ak having never raised it previously it having no discrimination claim no we it's not a discrimination claim that's right but the act provides fees not just for discrimination claims but for enforcing the illinois and that's where we are and those of the two cases that deal with the issue of whether there is a limitation of within that statute and why should we follow that there is no there is a limitation because it is in the civil in such a case and this is explicit because the provision itself would just be redundant if there is no purpose to it or if the law is no because the purpose is because if you have a discrimination claim under section b the nineteen aged forty two u s c nine hundred eighty eight has no such limitation but it's clearly in the civil rights act and then clearly it grants fees for a whole slew of things that were not  people behind you right when it was are you or your imagination is this true by this very case the jones castle just prove what you just said we both we both participate doesn't matter what your into a fact finding an extensive they what their effort did was it cost a lot of time that was in the end totally unnecessary they went through the preliminary injunction hearing it took more than a week  they went through a whole slew of things discovery it's a pure issue of law as is this the amount whether you like it or not the amount is really not addition here the issue here is whether the statute is  plain language which is not limited to discrimination and whether the common fun issue the common fun the who produced your recovery comes ahead of or who helped produce i didn't say we were the sole but without us there was only one of the one of the constituent groups involved and also the fact is that the unions are not generally part of the bargaining unit and so whether they had standing or not on the challenge would be a question we provided both the second group against whom the city very likely would have said well that's a different thing we're going to litigate that again the fact of the matter is we provided we provided the plan for how the case should proceed whether they agree with us or whether the court agrees with us we had a very narrow very narrow track which was this is a pure question of law the statute cutting people back and stopping pain is colorless for more than for more than a year i unconstitutional it's a pure question of law should be decided on summary judgment that's what we fought for and we did not try to add to the time we asked a very pointed questions they may say look you didn't do all this stuff and the answer is we didn't think all this stuff was necessary and all this stuff wasn't necessary was always a pure question of law we represented both constituent groups rather than just one union representing one can situ and group will be but most of the time and pension rights there won't be and we've done these cases and the fact is nobody comes in generally unless there's some some motivation we've done paces in the pension code fighting for people's rights and we've gotten them a separation and sometimes we haven't gotten paid and sometimes we have but if you don't it there isn't two tiers of illinois constitutional rights it's not a constitutions of of these are rights that will protect and we want to encourage people to defend and these are the doves that are just home and motherhood article thirteen section five if there is such a two tier system it doesn't apply the article thirteen section five and pension rights which the supreme court said are individual rights are necessary to have that enforcement because if the court has discretion of either or it doesn't say either it says to choose the low star or the common fund but the fact is in the federal mind there are lots of cases that we wonders allows you to do it even or way or both as the court may deem appropriate putting off class certification until the end of the case and then saying well it's moot and so there's no need to do it if you're against the class is fundamentally i think it's bad policy and on the attorney feet discovery issue the fact is in federal court there is an absolute rule requiring it is there is in the federal system but it would be good direction to the circuit judges to say where you have somebody opposing a fee you have to disclose that person has a disclose the fees and their billing rates because otherwise you make it a one way often non bonafide attack and fees and something like the city can drag things out because one thing that they do you know it's one thing they say doesn't mind so much apparently having to pay four hundred five hundred million dollars over time but paying legal fees they are something that they will invest no end of money to generally in favor of i understand the concept that generally up each person pays their own fate right because of that in this case if you were by chance hypothetically lose this appeal you would want to be paying their legal fees which it's a different issue a different question they didn't produce anything here from lee and but the american rule wouldn't the english rule is a different rule the english rule so i think they save the five dollars per month were member by posting your fees so they did have a benefit which is very similar the benefit that you say you want to pay for it so they should get a benefit under the want to do that in the future it's a free country that is i think that would be what can we get back to what i think what i think you're really asking is why should they have  it there were bunches of those common fund plans dealing with the insurance companies dealing with the rest of the line with plans and that and the concept is important and frankly if it could be awar in our brief we make it clear that we think it should be done on the basis that the court can give notice to all the participants and everybody who wants to object in some way if they want to that's fine we believe in the class the court i'm isolator up some city of chicago city intervened along with the state below to defend the constitutionality of the legislation on the merits i will be handling the issue and i my colleague mr shapiro will be handling the common fund issue we were the actually the ones against each other primarily for oh and now we're standing here on same side on appeal which i'm not sure how often you're ours have to happen it's a first for me than my opponent who is now my friend and our position is very straight forward we think yet how the court in the doma case got it exactly right we're asking you to follow them in case it rests been on the books for fifteen years and no court has adopted an interpretation of it or that's consistent with mr prison was argument feldman as your honour's know it was a kid challenge under the constitution to a portion of the firearm concealed carry and what the appellate court did was it it helped that it were provides for fee shifting in cases where create state statutory cause of action for a claim of discrimination based on suspect what's the basis of that play can either be under the statute or a state constitutional cause of action under equal protection  do when it passed now the supreme court was presented with the opportunity to take the filming case and was presented with the exact same argument that is being made here that the great cases inconsistent which we don't think it is and they declined t so i think what happened here was that the only incorrectly hell that the general assembly passed to address a very specific problem with a very specific solution the problem was that the that was the supreme court's to provide iran money for acts of discrimination that's exactly right that's what the title of the act sets discrimination prohibited and the cases he cites are actually inconsistent with his position my favorite of them is the chief whining case that this division decided in two thousand and six that was a case where the illinois native american bar association was arguing that it had overturned the existing law that designated chief a line away as the mascot officially of the university of illinois and this court rejected that argument and describe what if there was asked to do and what he did with this word sad is that it is clear from legislators comments and from the language that it was not intended to create new rights merely created a new venue in which plaintiffs could pursue in the state courts discrimination actions that had been available to them in the federal courts that's exactly right and if that argument is right which is what held in two thousand and six mr does section five of the it was not intended to create new rights but merely created a new venue state court for discrimination claims under federal law that's exactly what the legislature was trying to do the legislat history is very clear and it supports that the one quote he raises out of context where one of the legislators specifically salk's about bringing in private plaintiff's lawyers who pursued these claims just a little bit later that  same exact legislator said oh yeah i want everybody in the general assembly to know that this creates no new exposure for the states so even the legislator that he relies on makes clear that his argument is flawed because if he's right an automatic in all constitutional cases that would be a sea change in illinois law that it's never been accepted by any any time a plaintiff raised any claim of the illinois prostitution there were fifty shifting three of so but but the wall is actually you know that there is there are no cases out there that support how mr frist law interpreted it and if the general assembly were trying to do what he says if the general some we were trying to create the shifting in all cases it would not have done so in a subsection of a specific law that was passed title discrimination prohibited that was intended to restate existing law and not expand it that doesn't make sense non uniformity of your real estate taxation that's a provision in the constitution mr chris love is correct you get fees for that and that is certainly not what the general assembly was trying and the proof is in the pudding of course because no court is ever accepted this in the fifty years that it has been on the books i don't you know i typically on the defense side my opponents are usually very talented and very creative in coming up with arguments for fees and the fact that no such time as it ever examples insan home that was an anti slap case where the defendant profiled and cited speeds because that's what the statute provided but the illinois supreme court narrowly construed the statutes that oh defendant you're only entitle to a very small fees because i have to interpret the statute i the illinois supreme court in light of the american rule and has to be strictly construed that was a provision where the actual substantive law and the slap provision is broadly construed as provision for any provision of federal law or does something totally different it's very narrow it's specific to discrimination claims and this is not one of them so last year i was having the additional questions i would just s as we indicated before i'm going to focus solely on the common fund the only portion of the johnson plaintiffs even vision that the jones plaintiffs challenging and encouraging this his firm the johnson plaintiffs and the chris uk law firm ignore very important things that were in this underlying litigation the reason they purportedly participated in the litigation and that is because the pension was of the illinois constitution mandates as the illinois supreme court has found that people are entitled to one hundred percent of the pensions they have been promised it's the illinois constitution and the pension code the circuit court correctly hell that there was no common find mr  possibility but the only supreme court has found on several occasions that there might have been living asian brought on behalf of a taxpayer others who benefited from the litigation but there was no common fun he tax was inappropriate and the plaintiffs counsel said well ok we've saved lots of money lots of money going into the future as mr bush says here and we should be those who retire in the future would have received lesser automatic annuity increases and there were other aspects of the act that were also unconstitutional but it's the same thing for instance  invalidated a property tax assessment there the plaintiff said we're over assessed and there's another group up in lake county that was under assessed and the port agreed and so it's the same thing going into the future those people who prevailed got more money in their pocket that's the practical result of it and there was some way in that case the court could have assessed a certain amount of fee that should have been awarded to the common fund but  was very clear the ownership in port said that doesn't create a fun that comes within the orts purview right there is no way to destruct i think is the word that the supreme court used th that would go on and that's precisely the same thing here you yourself justice mason you know indicated the only legislature clearly can't say we're going to solve the pension problem by reducing nuisance automatic annuity increases by five dollars a month small amount mr christoph says it doesn't make a difference we would disagree with that characterization but it doesn't make a difference because the legislature can't do it and respectfully this court can't use its equitable already do what the pension protection clause says the legislature can't do that clause is not limited to any single branch of government it requires that the people that mr chris love claims to represent would get one hundred percent of their pensions it 's it's a little bit peculiar because mr slough seeks a common bond successful work but there's really if you get to the bottom of it nothing common about what  success that lies in the face of a common definition of what's common what he asks is not common to the class that he purports to represent and moreover there's nothing comm about asking for a fee that violates both our constitution and be anti union asian provisions in the code itself mr chris law at base ignores the pension protection clause of the only constitution the very right that he stands before the court says he should be awarded or upholding  in fact i would submit that it supports our position there he was a very different situation the plaintiff's counsel for the single plaintiff help recoup from the tortfeasor monies that were then repaid to blue cross blue shield that had previously been paid out to cover the plaintiff's medical damages and the plaintiff's attorney said well i should get up fortune of that because i recovered and blue cross blue shield said no you don't get any of it mccourt said no there the plaintiff's counsel provided benefits to are one illinois coalition no plaintiffs group in that case sought fees under any theory even though we were quite successful in clarifying the absolute protection that the pension protection clause for byte and include nerve it's true that the court awarded some attorneys fees in there but not a single party in that case objected to what went on so the issues that are presented here in mr christophe's case were never raised in the corner case they were never challenged never went up on appeal and i would say this court does not have to abide by the conservatives which doesn't even explain the basis for its decision so and that's the difference mr christie office cited a number of a risk cases in which there were settlements paid by third parties that had nothing to do with the best good benefits in none of those cases did vested benefits come from plan members and in fact the cases that he cites the other one wrote a case made perfectly clear that he can't do  that if a worker has been promised a defined pension benefit on retirement and if he is fulfilled whatever conditions are required to obtain a vested benefit he actually receives it that same rationale applies to the illinois pension codes anti even asian provisions and that seem rationale applies to the pension protection clause that's the very reason circuit court's ruling based on its determination that there was no comment on this case and there was no one created in this case that comes within this or its jurisdiction it's very different from the bishop case for instance on which mr kristoff relies where there was a bond a recovery that was within the i would submit is directly on point as the circuit court kristoff says the court in failing to certify class or at least consider his class certification motion the court was well within its discretion to defer ruling on that issue in fact mr christophe ignores that he voluntarily held his motion for class certification in abeyance and he did so with good reason that's because the underlying lawsuit both the ones that we free morning peters brought and the one that mr kristoff bought brought up involve a facial challenge if any portion of the act failed as to one member of one of the pension funds it would fail as to everybody there is absolutely no reason in this type of case to certify a class so chris christie law was involved in the underlying litigation but for purposes of fees it makes no difference that he and his clients decided to get involved as the supreme court found the act was inseparable the act itself said that it was in several if any of the pension diminishment in that act were held unconstitutional it was unconstitutional as to every member of both funds impact that sometimes consul bring cases that may have a benefit to others but it doesn't create a common fund from which they can obtain these that's just the nature of litigation benefits one person but it may benefit all other similarly situated individuals and i know mr chris luck is concerned about who's going to be here to help defend these pension rights and i can sure the court my clients will be as we were in the state pension cases and as these other cases show no doubt many other groups will be as well without seeking an award of common fund or other fees thank you for your time where is free born and peterson all these other people in the health care cases which have been going on for thirty years against the city of chicago where were they and squid owsley where were they in writing or this isn't about the assurance that don't worry about it will be there they won't be there unless the union that supports that particular cause chooses to be i predict mr slade's candor and going through the complaint and and it reminds me of how i learned about the provision in the civil rights act from another lawyer and so we did put in the complaint and i guess we put it in try to put it in the complaints now with all the pension cases do we need to address this issue now because there is a there was no problem talking about komen was the n r a funding a challenge to the concealed carry restrictions but cameron said that unless didn't need to include any mention of the constitution all it needed to say was there's a cause of action for discrimination and a successful person who brings an action under subsection b successfully enforcing a right under the constitution now there's two aspects that that brings out one is this limitless what ability in this case we're talking about as against it well there are two there are two responses the answer is yes but number one we're talking about a liability of eight billion dollars which has been established to which a ten million dollar fee of the city dragged it out for that long is still one of the minimalists significance compared to the liability imposed on the sin so anytime anybody sues under the high single subject rule under the no but i don't doubt that the courts may over time the established some sort of a whether it's not a pecking order but you know that that the challenge when they cite hammerin and stuff like that that's just says where there isn't that just says where there's no recovery where there's the minimalists whatever there's no harm the cases are fairly in substantial amounts compared to the amounts at issue  yes i do think that a clear reading would say and that would deter it would deter governments from just say that's really gay to be ended regardless of how long it takes because there is the commitment of taxpayer money governments are very well in this city chicago's probably the strongest in this respect you can drag this out for ever and that it is far more expensive well but the statute doesn't doesn't exist doesn't limit this provision wouldn't be necessary if if you want to read the statute as being only discrimination cases this provision is redundant and  not looking for a double recovery you would only get a recovery for your time in the case if you want to parse it between and generally the courts don't parse it between the counts that that you succeeded on and the counts that you failed on they counted based on your success in the case if they wanted to to do it in different way it would not happen in the way that you describe because equal protection would be a discrimination claim and there dollar amount produced and will be forthcoming in the future every year for these people's lives real cash under the jurisdiction court there's no they wouldn't dispute that funds are under the court's jurisdiction and could be so ordered it's different from a case like hammer of words said you know you don't have to pay taxes of an amount in excess of what you should have to pay whether the the single of the uniformity rule or whatever it's different from a case where there isn't money from the defendants that is paid under the jurisdiction of the court if this pain these payments are clearly and these funds are within the jurisdiction if the public pension funds do not cannot be counted on to challenge the on the city of these cases we have found in all these cases public pension funds or the willing case but it was clear that the n t alienation provision of illicit comes after the common fund having produced it and we think that the alienation the entity of the nation provision is really if properly read should be viewed as where somebody gets a judgment against you separately they cannot execute on your and your pension and the city can reduce your pension but where someone's efforts help produce a greater amount than you were getting before yes it should be the common fund should come ahead finally this concern is probably addressed by the fact that even if the pension fund said that this would reduce the amount that comes into the fund for the annuitants the city still has to under the current structure the city still have stooped fund the pensions to the point of being ninety percent funded by the year two thousand and fifty five so you know if on the class basis that's what we said put it out for the new attendance and if they objected that would be a consideration my guess is it would be hard to envision a serious objection but we're fully willing to have that taken on we believe in the class the ickle for accomplishing these things mr shapiro isn't always there won't be there hasn't been there