but we understand that the district court has has considerable discretion in fear wards concerning class settlements a class action settlements that discretion to still be guided by rule twenty three and established second  precedent here following four years of litigation the court was presented with a settlement specifically tailored to resolve the remaining claims in that action shaped by the court and it found that that settlement was fair reasonable and adequate however when presented with an uncontested modest and negative multiplier for your quest that was negotiated independent from and was independent from any benefits to the class did not reduce benefits to the class the district court completely abandoned its role as a fiduciary for the class under rule twenty three and developed departed from clear authority in the circuit it substitute its own business judgment for that of the parties  was kind of expressing predilection towards protecting corporate interests the judge happened specifically said that he viewed this action as as a nuisance action that it was a squeegee man theory of of fees and that it was a tax on corporations and he was going to allow that so he expressed a view that the case itself wasn't worth very much in terms of public interest for the class and so on take it he did express that opinion but bear in mind this case was a much broader much homework complex i would say outset they were known through multiple it started because as you get merged it should never been that the case that was his point anyway respectfully are we looking at the goldberg factors in the complexities of the matter the complexities or are there are viewed from the how how was this case constitute originally now we took a hit or whether it was made more complex than it needed to be by counsel and that would warrant a discount in the fees counsel made it more complex than it was th was warranted by your honor that at no time in the four years of litigation did the judge kaplan once express the the opinion that this case was like marriage was a nuisance case that  was it was he was looking at it in the light most favorable to one side or the other as the as the law required and it was only after the merits were resolved through the settlement that he expressed the view see good about what had happened in the litigation but throughout the litigation he focused on the merits of the parties claims so we were left in a position we had a america tories claim a smaller class and we did the prudent we our choices were to walk away from a claim that was deemed meritorious litigate that claim to due to some great extent just an expense or resolve the claims that the court expressly left viable and we did the prudent thing on behalf of the class and we came up with a settlement that was specifically tailored to address what was left of the class in fact we end up getting more relief then then we probably could have a trial on that particular claim and just gotten also disregarded in addition to the benefits that we achieved that he valued he didn't give any value to the structural and non that the company failed to disclose the belief to skip songs then you should already set the disclaimer was already in place that there would be no refund or and under any circumstances right that  with regard to the debate over whether the award should have been based on the amount of  there all users of the jukebox system were entitled then to a credit and only a certain percentage which judge kaplan thought would be relatively small might redeem those coupons and so they care for seems to in  twenty eight u s c seven hundred twelve a anticipate similar settlement we are only partial reduction actually occurs do you disagree that that part of cafe governance this settlement we think this is  this case a little bit of a different animal necessarily a coupon settlement because basically it was a reversion of you know i think people lost a particular unit of of of value getting an opportunity to use the system that is i view equivalent to the kind of coupon that may but may or may not be used ultimately it's not like there's money that's getting distributed to everyone right that's true there's not money being distributed everyone in this case i mean i think second circuit president is fairly clear on this point that that it when even further than basing it on whether or not people got that credit or m thank you your honors i'm a please the court on joseph palmore here about of touch tunes judge kaplan acted well within his broad discretion in directly correlating counsels fees to the concrete benefit that the settlement provided to the class this practical approach was particularly warranted because counsel failed to fulfill his mandatory obligation under kerry to substantiate his billable time in support of a lodestar let me let me ask you about that mean i  discretion for the district court to reject that offer because that was insufficient it came it was too little too late your honor since one thousand nine hundred three and the carry decision it has been mandatory in the circuit for counsel seeking lodestar compensation to provide billable records that's the threshold requirement this was the final confirmation hearing had been scheduled months in advance counsel was required to support his request for fees with those billable records and it wasn't sufficient for him to say i will comply with this mandatory obligation at some later date and it's not correct for him to say that judge kaplan abused his discretion by declining to adjourn the final confirmation hearing in order to allow counsel to do what he was supposed to do from the beginning it couldn't be clearer under kerry under scott that this is a mandatory hard and fast rule and if you look at what counsel provided it was simply a summary table it's about two inches tall in his fee application just with a gross aggregate number of hours and a fee and that's not sufficient so lodestar was off the table as an option here judge kaplan then had no choice he was going to award fees at all but to award them in relation to the benefits that were provided under the settlement do you agree that the cafe coupon provision that i was referring to earlier could be looked to as and to the credits applied here of course it's not just kathy the complex litigation manual which we cited in our brief there was actually a recent amendment to the advisory committee notes under rule twenty three that expressly endorsed this kind of calculation of fees waiting until you see what the actual redemption rate is so that the fees are correlated to the actual concrete benefits that are provided to the class and of course numerous district courts in th circuit and we cite those in footnote two of our brief have calculated fees in exactly this way it's a very practical way of ensuring that there is a correlation between the feet paid to counsel and the concrete actual benefits provided to the not just the theoretical benefits so the judge kaplan couldn't have abused his discretion by using that very method that's been endorsed through all of those mechanisms and is in fact the only way to calculate fees in a coupon settlement under cafe and in terms of the complexity of the case you pointed out something that's quite apt here which is that the case was unnecessarily complex from the beginning they were ripped there was a sewer spahn day dismissal for failure to allege jurisdiction properly there were then we had to move to dismiss twice it was dismissed in its entirety the first time with leave to reply it was dismissed almost in its entirety the second time as counsel acknowledged only a sliver of the case was left so it was actually quite simple at the end of the day and in terms of the effort that council expended over the life of the case it was really filing complaints resisting motions to dismiss and amending the complaints there was no discovery there was no actual fact litigation in this case and the parties arrived at a reasonable compromise and settlement to reflect the sliver of the case that was left and to provide relief to the class that was commensurate with that sliver of the case and of the few award that judge kaplan awarded and i should note parent that if we hear that we don't even know what that final number is going to be because we're still within the period in which members of the class can redeem these credits that few ward was commensurate to the concrete benefits that the class got your adversary suggests that the district court  his didn't fulfill his fiduciary obligation to the class and not awarding fees and costs and so on as had been anticipated in the settlement agreement what's your comment on that and no i think that's not correct your honor that what rule twenty three h says is that all fi awards in class actions have to be reasonable it doesn't differentiate on whether the money comes from the class or comes directly from the defendant there is this overarching reasonable requirement always applies and there is a systemic interest in having district courts do what judge kaplan did here which is police the reason we're in this fees even if they're not contested in the district court that is part of the district court fiduciary obligation not only to the class in a particular case but to the system and the fairness of class action litigation over all your as i understand it you all agreed to pay a l is that correct that's not quite correct your honor we agreed in the district court not to oppose we didn't endorse we didn't agree we just said we will not oppose up to one hundred thousand whatever amount was awarded it was not going to diminish the amount or the recovery for the class correct that's correct the court has no further questions we would ask that the judgment here for mr norton three minutes lodestar summaries to did not apply the billing rates in effect at the time the services were rendered here on that is that correct that's correct but the second circuit present and there are there are a number of cases that say that current rates is the proper rate to use because it contemplates that the risk in the time doesn't depend on how the extent of the time and so on and i think it would have been appropriate still to provide the then a political rate rather than the highest rate of political during that period no rapture law but again twice we offered to produce the records both in our application right away that counsel is right that's no new requirement it's not new but there are dozens and dozens of cases where the summary is just like the one we did where fees are granted and the only time you know often if there's objections or there's some question as to through two to excessive billing or some other reason to doubt the veracity of the summary contained in attorney declaration that would require that to two but here we have a and ignores that when i was on the district court and especially in a class action where the jet lag asians as you pointed out but just tell us why why didn't you provide them i mean there's plenty of case law out there saying they are required i suppose it was you know based on former practice where it had been accepted that we where we had done it with the final proceeding and the judge is not going to let you delay things further why is that an abuse of discretion but he could he didn't have to delay things he could have been subject he could have granted subject to supplementing the record that happens all the time as well there is no reason for him to just throw that out and it was well i think that's exactly what judges wouldn't do because they're they're basing it on nothing i mean they they need to review the contemporaneous records to be certain that the recent bill so here we have put aside the grant it's subject to confirming that it's ok it's what makes you say that it's an abuse of discretion for a judge who is not offered contemporaneous billing records until the final appearance but that's an abuse of discretion what do you rely on for that it wasn't the final appearance because we had he had had our motion for fees for two months and the judge kaplan had never been shy about telling us to supplement anything that we had submitted to the court within minutes of submitting it offered to support supply of records because i that's what i would months prior to the final approval here when you do contemporaneous time records and they will be provided at the court's request review and we and then repeated that again in open court and that was disregarded and i just i would just point out that in a case like this and we submitted a lodestar request that was negative point four seven of our of our load of our billable time we cut over more than half of our time in this case and contemplation in consideration that yes this was a far more narrow case alternately after expenses which i didn't address he also just for no reason didn't allow expenses or incentive ward without giving any real reason for that but at the end of the day it was basically an eighty seven thousand dollars fee over four years of litigation i said couldn't happen so even if it's a percentage of the benefit depending on how you calculate it we think they could still be justified i thank you very much i'll reserve decision thank you both