acorn is somehow distinctive enough that we don't run into the river to suit problem your here is a helpful person trying to protect acorns treasury and probably down the line that would help all shareholders including yourself but that it's really acorn's problem and they decided to settle the these attorneys fees class of acorn shareholders who were saying that acorn wasn't getting enough money for its for its shares or whatever it was it was not aggressively enough defending the shareholders position  somebody hasn't somehow suffered while the other side is unjustly enriched then why aren't they you know just sort of the concerned bystander bunch of cases from the laws of trusts for example where there's a well established relationship among the settler of the trust the trustee the beneficiaries of a trust and if the trustee is behaving in a  unfaithful way then the beneficiaries are harmed and so that seems to fit pretty readily into a normal injury in fact scenario illinois isn't required to follow the same rules as the federal courts too and it may take a more generous view of injury i mean it seems to me your main point is that this racket as you call it you know where somebody files asks for disclosures the disclosures happen they settle the attorney's fees  on the side so to speak without going through the court because there's no certified class is something that that ought to be stopped and maybe it should be stopped but the question that comes up in this case is whether the entity that should stop it is congress is the rules committee is this court other questions are why didn't the district court say a word about a sanctions analysis in its order instead it just went to the merits there are many things it seems to me could have discussed if it was protecting the integrity of the court system and using its inherent power in that respect there are a lot of holes in this case do you think the district court here did or did not impose sanctions on the plane is i think it  and i just feel like i've some inconsistency in your position you saying they didn't impose sanctions they should have been now here we're looking at this and you're saying well actually the discouragement at the sea was a sanction that we don't have a sanctions analysis we don't no one's talking about even the inherent power to court to sanction in the order of the court that's before us do you think it's permissible at all when there's an attorney c statute for people to resolve the question of c s by agreement itself and for one to say those rules are automatically part of the menu of rules that a federal court follows i'm sorry i don't understand the question well you seem to be saying that the there was a problem in this case because the court because the parties were not following every last twist and turn of the truly case that the delaware courts have adopted for themselves and i'm suggesting that that's certainly their prerogative in delaware to do that but i don't think the fact that it's not quite truly a tells us very much about whether the procedures followed here were compatible with because certain aspects of delaware law such as the notice aspect were not followed here that that's a reason to support what the district court did know your honor and saying  while i will stand on our brief on that i'm not sure what what what the underlying question well the court the court addressed intervention in general globally the court didn't break it down into a now i'm going to talk about twenty four a now i'm going to talk about twenty four b just had a generic discussion of intervention there was some talk of the briefs about whether that's good enough correct you and he'd like those funds to be returned to the acorn treasury that is in fact a derivative complaint if mr frank believes that the acorn defendant should not have settled out of court and resolve the fee issue without any judicial intervention  he always can take advantage of a seat for corporate waste under state law but the answer is not that individual shareholders have a cognizable interest either as a matter of article three standing but certainly not as a matter  argument as i understand frank's position it's not the directors breached their fiduciary duties by agreeing to pay out too much it's that the plaintiffs and their lawyers breached their fiduciary duties to the class by using the class litigation to induce the payment if the plaintiffs file a lawsuit and say implicitly it will cost you two  but it's easily understandable as a claim of breach of fiduciary duty by the people purporting to represent the class who are using leverage to enrich themselves rather than the class so that leads me to directors breach if you do sherry duty well your honor we were trying to respond st today the way that mr frank had characterized his intervention request below but what i was getting cute that nd i agree we also have to show how he does not have an interest as a class member and i think that that follows for multiple reasons including the very easiest which is that mr frank acquired a shared after the record date that means that he was not a voting share holder for acorn was not how you described class though that in your complaint you didn't worry about the record date but for very good reason the complaint was filed before the record date was known but if you look at the description of the class in the claims that issue these are section fourteen a claims in the exchange act they apply only for voting shareholders there's no such thing as a section fourteen a claim for someone who is not a voting shareholder so if you read the complaint in total which it which i would really encourage the panel to do it's clear that the class of shareholders is limited to those voting shareholders which excludes mr frank and that is the easiest way to resolve this if there are any duties to absent class members pre certified cation which itself i think is an open question and we would say that there are not formalized fiduciary duties in that context before that the magic of certification occurs they are limited to the of an uncertified class there are some and so i wonder to what extent is it important that at least in this case when the case was dismissed it was entirely without prejudice to anyone involved the name members the name members acorn anybody else versus with prejudice one would have to ask what was the injury to the unnamed class members if they could turn around tomorrow and file an action that's exactly right your honor and we think that that is why there is no conceivable breach here if there is a fiduciary duty to and then class members it's not a general duty it's limited to protecting the legal rights that form the basis of the relevant claims and in this case there's no conceivable impairment of those claims there's no prejudice to any section fourteen rights by any member of the class barony anyone who is not a member of the class not even to the plaintiffs themselves because all of the claims were dismissed without prejudice so to the extent that there's even a conceivable for sheri duty you know in theory it wouldn't apply in this case because there's no conceivable breach and the only and again to go back to i believe it was judge easterbrook question this is not a situation where the lawyers are leveraging the class action device for a very simple reason which is that putative class action was withdrawn the claims were dismissed by the time they asked for fees and to give it a private contractual agreement again out of court there were no there was no class action in that still remained so it's it's hard to understand how mr frank's claim was used as leverage when mr klein no longer existed even assuming he was a member of the voting class which he's not and i believe he concedes that and even assuming there for the cherie duties pre certification which is an open question and even assuming that those duties would extend beyond protecting the specific rights and the claims that are asserted by the class council and the lead plaintiff which in this case were limited  obtaining additional in accurate information on behalf of the shareholder class so i think the again the easiest way to resolve this is to simply say that that mr frank while acting possibly in the best of intentions has no  that would warrant intervention a nd reason that the intervention request would fail is that the court had no jurisdiction to consider it because he actions were no longer pending when he sought to intervene in them and i believe mr frank is not cited a single case  i believe in from any court that says that a party can seek to intervene and a fully dismissed action where there isn't some preexisting judicial order or judgement that the party seeking to alter and that the only exception there potentially is in the context of teeth of class actions where the putative class member is trying to intervene in order to assert the classes rights that were implicitly denied by the court that's the thing that has divided again that is the devil that's correct your honor and i believe that that situation is distinguishable i think for fairly obvious reasons as is young versus ag which mr frank although citing only i believe once in his opening brief you know relies on heavily in reply young versus higbee was an old case under the bankruptcy acted preexisted the bankruptcy code the court looked at the claims in that case that were appealed that the the relevant  shareholders there were effectively representing the shareholder class and what they did it was it would be more candid to there being a certified class where the lawyers get up on appeal and they give away the classes rights in exchange for a private benefit now we fully agree that if a if a class member in a certified class bargains away the classes are right for their own private benefit that is a materially different situation that raises a whole host of legitimate concerns that is quite distinguishable from  situation here where you have a punitive class action filed it is withdrawn under will forty one it's not with it's without prejudice to anyone's claims and then a class member tries to intervene after jurisdiction is lax in the district we think that those that alone either defect is sufficient i think to resolve this but if the panel wanted to look at it yet another reason i think an easy one is that mr frank interests are conceivably impaired  intervention nothing prevents mr frank from suing either the acorn board if he does believe this was corporate ways or from bringing his to the sherry do the climb which again i think will fail for lots of reasons including he wasn't part of the class that he motion to intervene it's very hard to find language seems to apply to permissive intervention the discussion is almost entirely in terms of the criteria that govern twenty four a two intervention that is to say you know an interest is the same and so on so i know that sometimes judges don't pick it apart but you need to find something in the order to suggest that the judge considered and rejected the possibility of permissive intervention i'm having trouble finding that you're i don't think that the judge was as explicit as the judge could have betty but if you look at page fifty six of our intervention are somewhat different from the topics covered by the intervention of right and i'm putting to one side intervention guaranteed by statute i'm really talking about the the common interest type but the standards are  different now there is also an item in permissive intervention b three that talks about undue delay and prejudice and you know i think the judge may have touched on that a little bit but the judge really doesn't give me that he was even aware that the standards are somewhat different for permissive than for of right i think that may have been a product by by the the lack of briefing on the issue including by mr frank  t i do think though that if you look to the court's opinion it addresses what what the court would have thought of a robust request for permissive intervention explain how mr frank didn't have any conceivable interest in the outcome of the case it understood mr franks request is effectively wanting money back into the acorn coffers which again is a derivative claim explain it explained how mr frank could assert and i hope i'm not wrong on this but i think the court did say one point that he could assert those claims separately and he did intervene after the action had already lapsed and the judge expressed concern that they even would have the power to look at this at this late time and i think that even if the court had ruled on and i think it would be a clear abuse of discretion to grant permissive intervention in this posture where you have you know a non class member in an uncertified class in a case has been reimbursed and that's not necessarily the same damage as he suffers as a shareholder from the plaintiffs from the use of the class action device here to impoverish the corporation so would there be some other measure of damages that would be more clearly aligned with the type of any and just to take issue again with the promise he would be one thing again if he at least fit within the actual class if that if this case he continued to full litigation and a motion to certify the class mr frank with a falling outside the class his interests were not represented because again he has no conceivable viable claim under section fourteen a which where the claims that were certain and in this action in the only claims that were brought and his rights were inconceivably prejudiced by any action taken by the plaintiffs or their lawyers so i think i think again those are fully sufficient ways to resolve this no i don't want to try to make mr franks creative argument for him and try to come up with a different measure of relief but again it's very hard to say how the class action device was leveraged in a case where the class action was fully withdrawn and dismissed which which again to go back to the one point we think the court was correct in denying intervention it's reasoning was very sound  but one mistake the court did make in the course of this order is suggesting that the are fees that are that are just racked and from defendants in order to avoid any interference with the proposed merger it's very hard to understand how  withdrawn see it that has been mooted it doesn't exist it's not pending before any court could conceivably interfere with anything if the defendants thought that the request for fees was frivolous all they had to do is say we will not settle with you  the burden is on the plainest to go to the court and file the fee motion they're the ones that have to do that work the defendants can sit back on their hands and say we leave it to the court to recognize that the claim is frivolous and it's on title to fees and my my co coun and my clients consistently take the position that the benefit that they should be awarded for fees should be absolutely commensurate with the benefit conferred on the class if a judge looks at this i'm sorry your time has now think breached it it's more class