rebuttal and hopefully i'll manage to do that we first of all thank you for giving us a separate argument because we are the tree that is overlooked in this forest throughout this case there were two hundred forty plus applications are application was different than everybody else's but we were thrown in with everybody else our full cation is different because we actually after the settlement agreement was written we cause a change in the settlement agreement to include within the settlement thousands of  n dealers who were excluded from the settlement as originally drafted and have a cause of these people to be able receive tens of millions of dollars of proceeds that they would not have gotten under the original settlement agreement we therefore under the standards set we help preserve extend however you want to call it the common fund and i did get these things mixed up but were you denied because you did not go to the process or were you deny because  was you didn't contribute because it was a mistake that would have been found anyway i can't answer your question or on it because i do not know because the order does not stay there is nothing specific about us anywhere in the water in volkswagens  ibus opposition there is one line referring to our case which simply states that we did not follow the process of the lino water however we are not underling order because we are not seeking to collect a portion of our clients pay out  oh yes your honor that that is the common fund that was created is a ten billion thirty three million dollar fund and if amounts which are not distributed to claimants reverts back to volkswagen and folks why in fact has a strong incentive not to pay out or not to reach the dealers because while they talk in their briefs about overvotes why you have this great incentive to have a high level up to the patient level participation that volkswagen needs to satisfy its settlement the justice department is eighty five percent so just as in the price is right you want to get the price the highest price of anyone but below the actual market price here you want to come in if you're volkswagen just above eighty five percent of suspicion because you can save i want to have billion dollars in payout mistake it got me amended to include these other people and then what steps did you take to make sure you were part of the attorney's package well we had several different roles in the in the case we garver those and we openly did receive a payment for the work in those separate cases this case the case for which we seek a fee here was not part of the m t l this was a separate missouri state class action which was on the verge of class counsel spoke to them about it they said we don't know what the answer is there was a whole bunch of correspondence back and forth eventually we were told to deal with this particular member of the p s c that actually about law partner one of the named individual my partner work with him they worked out the language that would be needed to change the contract so all of that that is in the record counsel with regard to the communications with counsel to try to clarify whether they meant to of that work was in connection with the state court litigation some nearly three hundred hours correct and is there any indication in the record that the b r c the steering committee or class council approved the payment and the work in connection with the state court litigation where our theory isn't that they approved us pursuing the state court of a geisha and in fact they were very much against us  they want to have a universal global settlement throughout the united states and having our individual state action is actually detrimental possibly the interest of the p s c because we're not going to settle our case for less than they settled it and we have an opportunity of requiring recovering more than they recovered for plaintiffs nationally which would then put them in a bad light volkswagen wants us out of there too so but we pursued our case because we were able to pursue it in state court it gave us leverage nobody would talk to us if we didn't have this case applied to work in any state court case we want to state court case we are outside the scope of p t o eleven but i thought you were speaking fees because the work you did change the  that in order to to to qualify to retain to obtain money from a comma funded a class action the work you do does not have to be in that litigation ok but we have a system in that litigation for getting attorney if the work you did change something with regard to that litigation and you were supposed to go through this procedure the procedure is designed to require you to get pre approval to take steps to do common area work the notion the notion of that order is you can't just go off and do common area work on your own in this case without first going to the point of steering committee gain your approval having a direction to go do it w if they wanted us to stay our classification which we were about to get class certified and we agreed only condition upon them amending the settlement agreement to include not just the missouri  designed for your kind of claim it's very true that that's one argument yes your honor and a second argument is that there are three bases to obtain attorneys fees for someone else as we've discussed earlier a statutory transfer we don't have that a contract we agree we're not part of the contract a v w agreed to pay this a third one is helping to create preserve extend a common fund the party's v w and the p s c cannot by their contract eliminate our right to claim under the common fund they can say hey under our contract under one hundred thirty five million dollars you can only get fees if you follow what we say you're going to do but the giants can make a system correct and so your only way of winning it's a show that you have to be outside that system for some reason right and you are going to trust that the judge can create a system however the judge is required to pay fees to law firms lawyers who in fact create preserve etc it's not discretionary if the facts show that you have helped create this common fund you are entitled to a fee as a matter of law and so while there is an order and i and i applaud judge briars management of the case i think you know you have a very complicated case you've got a lot of law firms you've got a lot of parties you have an unusual circumstance where as as i've said v w essentially i'm no admitted liability up front now but it's still very complicated case handled in expeditiously the orders are good but by order he's still within his jurisdiction he needs to say oh wait a second this case is different this claim is different because they in fact brought value to thousands of class members who would not have received money and therefore i'm compelled to determine what's the appropriate fee for that not withstanding my orders for the ordinary run of the course had our state cause of action we filed our petition it was however drowned in a sea of very summer petitions of the type that we described where you know we did work ahead of time you know we didn't get part of p s e we want money for kept we kept on top of things we said no are ours different we're not asking for all the stuff we did within the p s c filing and we did say that in connection with the non v w dealers they were cut out of the deal as written we've saw that we pushed it was not like we presented to them they said oh yeah yet there was a lot of back and forth eventually lead counsel said i think of double dealers are in there so let's make it happen talk to this p f c member and give them the language we did that we also told them how can you contact all these dealers across the united states because we knew how to do that that was information that we added so they changed their process and aren't included additional notice method so that these people will get in there seen because of the force we received no individual eyes response by volkswagen the p s c i don't know what they're doing here they didn't object to our motion they don't have any standing they don't have an interest here i don't know why they're here at all but they didn't file anything  anything and so all the factual statements we made were unreported and the judge didn't make any separate indication about it as well now there's a statement in one of the breeze i believe in the p s p brief say oh yeah it is a footnote where the judge said  i say the judge specifically mention art of course application it's not true if you look at document thirty one seventy eight of page five no five is talking about people who filed who provided documents regarding a consolidated class action complaint has nothing to do with changes settlement agreement we stand apart from the others because we actually brought value and we for granted tens of million dollars of this ten billion dollar class fund from reverting back to volkswagen because now it's going to be distributed to non view that we dealers i'll save my last forty your honors i believe that auto court should be applauded for making a traditional argument that one makes on behalf of attorney's fees and then a successful class action they are here saying that due to their efforts the size of the pie for the class was expanded we have some factual issues with that as we put forward in our brief we think that their claim is wildly overstated we think that the dealers were always the non v w dealers were always part of this but they had a clear way to get compensated for that all they had to do was submit through p t o eleven there is they are wrong  pre approval that is incorrect or on of what p t o eleven says is that work has to be reported monthly to lead council and when it's known that there's going to be different kinds of work done it should be pre authorized but there were hundreds of lawyers working who could not possibly get preauthorization for everything that they were doing and so both from auto port and from the argument before there was the incorrect impression that you had to get prior approval for everything paragraph seven of declaration which i referenced before was an after the fact assessment of the work that had been done early on in securing plaintiffs in order to get that o eleven format even though the work in the state court was done before they could have at least made the presentation arguing how they benefit the class and if that had been disputed go to go on to the judge the judge could have decided it and then it would have been subject dotted and the like correct that's exactly correct your honor and in fact the reason they didn't do that is because they could only muster up ten hours of work a very small amount of time that they contributed to this to this part of the effort the bulk of their time and therefore hundred sixty thousand dollars is calculated in the most bizarre way by taking other people's fear rates and multiplying it by a enhancement but leaving although if the work was for the the missouri state quite right that's what they want to compensate for now the odd thing is that they defeated a a removal to federal court because they waived claims to get themselves under the calf a minimum so they had very weak claims with no damages amounts very little small damages amounts to them as a result of that they proceeded in state court and they now want a federal court to give them fees for what they did in state court i don't think a federal court has jurisdiction over that i don't know where the subject matter jurisdiction understand i think he sees it differently doesn't he say that look you have this and i meant it didn't cover us or i didn't cover these non vote slacken people so therefore we made a bigger settlement a bigger settlement and therefore i want a percentage of that bigger settlement you weren't doing anything to i came in and i said you did it ro that's correct your honor but i don't know where that money comes from v w didn't agree to pay that well and he i guess like the other fellow he would say he's going to invade bullets are an arrow in his reply brief he says very clearly i do not want to invade the hundred seventy five million that was paid through the agreement and p t o eleven he says that clearly and i believe that once he says that and he says i want to be paid for my state court work that he has just taken himself outside a federal subject matter jurisdiction judge when your opinion in torkel son is not to the contrary because there you had a federal claim and there was a question of whether objectors enhanced the value of the federal claim so there's never an issue about federal subject matter jurisdiction here they made it so that the federal court could not supervise their missouri state action and there is nothing there that judge bryer can can adjudicate other words they kept the amount of  cafe yes yeah they did that in order to stay in state court which is which is fine they did that and then they can sue volkswagen for fees in state court they may when i suspect they won't but that they certainly have the ability to seek that whatever remedies are available under missouri law which i don't claim any expertise on but what they can't do is say that as non participants in the m t l in a class action in state court we're entitled to fees outside the  process had they chosen to be state courts who if a court litigants who contributed to the pot here they certainly could have come in and said we're entitled to a piece of it and to be quite candid we would have given it to them it was a small amount it was a technical correction we didn't think the correction was needed anyway but once it was pointed out why not and we're not trying to hoard keep them out of this out of the work here they could have done that they chose not to and once they chose not to then they're outside federal court jurisdiction all together all together here they raise the issue of standing with regard to class council and i'm concerned about that and would give you a chance to briefly respond to that council paid and so whether they win or lose here it's not going to reduce any payments the class council right so what's the what's the concrete injury that would be a redress of by any ruling that we make here as well there's there's there's the claim against volkswagen volkswagens going to address that our role your honor quite frankly is we are the representatives of the proceedings below and we were appointed class council by judge bryer we are protecting the integrity of his decisions they were treated they say they were tree among the forests but they are part of the order that denied class that denied fees to non class council and we have responsibility as p s c in class council to protect the integrity of the rulings below so i think that that's that's our standing i understand he doesn't want money from from us and and i'm quite pleased by that to be candid but argument i think you understand it would be what is your best argument that otto port we don't have jurisdiction to hear this appeal because they are state court litigants seeking compensation for work they did in state court and they are not seeking compensation from within the fee structure of the m t l process and the settlement agreement so under the standard american rule that your honor referenced earlier they have to find fees from something that they did they cannot claim the common fund in federal court to be theirs they have to claim that what they did in state court entitles them to compensation from volkswagen they are not seeking compensation against class members that the entire common benefit is based on that argument doesn't apply to that little portion relating to correcting the class definition right know that that portion had they sought it they would be fined they could come in p t o eleven make a claim that's fine but in their brief they say we don't want that money we don't want any part of the money that was created by the settlement agreement having said that they are now outside the federal court's jurisdiction and it's it's a peculiar circumstance and there's there's language in some of the opinions in this court like seven and including stetson that there is jurisdiction to reach the the ancillary questions pursuant to the the main action in federal court but those were all cases where the main action was in federal court the i am back may please the court again share knowledge for sullivan and cromwell to have the v w defendants if i may stay put step back for just a moment because i do think this gets a little complicated and sort of step through the thinking here the contract the settlement agreement is the sole basis for coming after folks wagon for fees so if auto port wanted fees from books wagon for the portably obtaining a common benefit for the the only way to do that was through class councils fee petition and i will let me explain why because it's a little unusual here  the if you're seeking a common benefit the common benefit exception to the american rule ships cost to the beneficiaries what it means is you have a pla does something that improves the class benefit and it shifts the cost and it shifts the cost for paying those fees to the beneficiaries it doesn't shift the cost of those fees to the settling defendant now here we keep talking about a ten point three it's ten point zero three billion dollars fund it's actually a template zero three three billion dollars fund but there is no common fund in the traditional sense here and that is something this court recognized in its order approving affirming the final approval order last july the way the fund works is or it's not even it's not even called a fund it's called a funding pool it's it's the notional amount that bloke's waggon would pay if every single class member participated in the settlement and chose the most expensive of the myriad of options available to them but a we're not asking for money out of the hundred and seventy five million dollars fee award so that means they must be seeking money from votes wagon and the only place they can get money from  volkswagen would have been through the common fee application they are free to seek fees from their client of course in missouri but i think judgement has it exactly right what they're looking for here is four hundred thousand dollars from for work done in a case outside of the m d o and the settlement agreement which is perfectly clear that it is not entitled to that money from books wagon if they answer the simple reason it's not in the settlement agreement it also fails for the simple reason that auto port expressly released the claim for fees that it tainted other cases now on a port just ignores this but the release language in the settlement agreement is quite pla it releases any claims for attorney fees or costs other than the fees and costs awarded by the court in connection with the m d l settlement judge prior enjoined parties from pursuing release claims including direct claims for attorney fees against books wagon and that release language was reviewed by the m d l court included in the final approval order and affirmed by this court so they are barred from pursuing these directly from the w for other case work  and that is completely consistent with this court's order again on july ninth two thousand and eighteen dismissing the appeals of two appellants who a challenge to the settlement agreement who were bound by the same release language at that time they were they were bound by the individual releases that were signed along with the class release that's kept in the final approval order having now approved that final approval order everyone who participated in the class is bound by that release and a joined from pursuing fees against folks wagon for individual the awards in other  cases and if i just could address it quickly because i think it's helpful i think it's important that we understand about the clarification of the class definition and there is a very clear proof in the record that every single vehicle that was held by a reseller was included in the original settlement and that's because as i just said before every single dollar in that ten point zero three three billion dollars funding pool was calculated by including those vehicles you could not have gotten to that number if you had not included the vehicles so here i don't think there's a question but that there was in a in a different case thank you attorney fees what is your source if you're right where do you get paid let me redress to release part because the release is misleading the release language itself does not apply to us because the release says has an exception it as exception to quote other then fees awarded by the court and connection with the settlement close quote in connection with some includes the common fund that our claim on the common fund so we are not within the scope of the release so the release is a bogus issue with regard to the money it's a ten point is the ten billion dollars because that's the common fund and even though they chose to do a side agreement and to pay these fees in addition to the side that doesn't make a less than a com a little common fund that in fact is a very common practice today because that eliminates complaints about the attorneys fees from being challenges to the full overall settlement so it's move the settlement you negotiate that in settlement amount first then you've negotiated tourney's fee apart and helps keep it separate and prevents objectors that's why you do that that is the money we're looking at thank you your honor very much i appreciate the extra time and thank you for your