circuit this is omar i mean she was like only yesterday you you join my chambers and they say that time flies when you're having fun but i think it flies in session when you're working hard and being the case i bet it's really flown fast for you given now hard you you work you earn the respect of your peers and doug given the the actual into your work product i'm sure that you will have a very fulfilling career so with that i turn it over to my colleague that well it thank you counsel given the extraordinarily high information that would have enabled the woodley's who are members of the class to understand how their property had been valued second in awarded common fund attorneys fees even though class counsel was adequately compensated under the you are a statute with respect to the first point disclosure is fundamental to being able to determine whether or not the allocations could be double checked double checking is important to determine whether or not a class settlement is fair the requisite documents the appraisals the spreadsheets the formulas for determining how each class numbers property was value were never disclosed by class counsel and so the court of federal claims never have the means by which it could exercise its by the sherry responsibility to the class but it double check i understand your concerns and it seems to me that it would been pretty easy to turn over a few documents but didn't the court of federal claims at the turn to syria get information about the differences in the valuation of the two properties at issue only in the asking us to do is a step into the shoes of the trial where to look at this all of us to know if i were to do that i suspect i would agree with you but he had some information about the difference in the way since he had information about the overall numbers the overall methodology and the like and isn't this something that we're reviewing under the producer discretion standard yes you are but this is abuse of discretion when we're talking about property we don't even get an opportunity to see what the appraisals are and we don't know what the one vote or join the settlement they opted in at the beginning but they objected to the settlement and they objected at the fairness hearing the since in their form objecting they have a perfectly valid objection to the s standing to object to the settlement and the settlement objection is based on the fact that even the court a federal claims which which sought to get information didn't get the right information to determine whether or not the allocations were fair and double checking is fundamental to determining whether or not a class settlement is fair here that didn't happen in the kinds of information that would have been important would show that a neighbor to the worst down with virtually identical waterfront property slightly lower square footage got more than twice as much and allocate as for the woodley scott the court never asked the questions to determine how could that be and if the government notes anything other than the work product that attorney would ordinarily be obliged to give his client and to the extent that they are purporting to represent the class this is information that class members ask clients would ordinarily be filed to get but this was information that not only was withheld from the class it was not disclosed to the court so the court couldn't discharge its responsibility either if i could turn quickly to the common fund issue i want to make  believe that it is fair yes asked mission judge rein it is that if judge lefkow did not have the tools to determine whether or not a settlement was fair for just a few it wouldn't be fair for all and the government notes in it  massive methodological problems that are present in this particular settlement on the common fund issue the one takeaway that i want to leave you with before i have to sit down before a bottle is that common fund attorneys fees are only allowed where there is an equity in equity is the key prerequisite to determine common fund attorney these there can be no inequity where the statute provides for all fees and expenses that are actually incurred and data to the way the statute is where the statute mandates that the united states pay all fees and expenses actually incurred so there is no inequity that a common fund here could address and that has been true from supreme court precedent dating for the hundred eighty s all the way to the present there is not a single case that we have found where there has been no inequity and statutory fees plus a common fund attorney c has been to approximately seventeen times the lodestar we're talking about fees even for their paralegal that if you want all of their hours together represented something like four thousand dollars per hour for every professional in class counsel that was a arded attorney fees and this amount comes directly out of the just compensation that is awarded to the class and we would submit that the amount is grossly disproportionate and there is no inequity to address and i'd like to save my remaining solicitor general of the united states for a decision as to our position in the case and that was done so huge support of the woodlands position is this yes yes your honor and i would like to take up i would ask you about the disc haven't and i mean honestly the justice department has an obligation not just to represent the government has or operates is to represent everybody so if you know now the methodology wasn't right why didn't you look at it more carefully that your honor the settlement was based on one hundred ten million dollar payment to the class it was left up to class counsel to allocate that money among the clients if that's the way you settle these rails an unusual case your honor we're all going to see me like you have an obligation not just determined that the overall number is fair but that the way the numbers distribute is fair to your honor certainly that would be the case moving forward that was not done in this case because it was left to class counsel united always on and prior cases your honor there are all different ways of resolving trials that cases but often there's a joint appraisal process where there's one undertaken your honor there were two different appraisals for the representative parcels that were very different in their methodology and they're also met conclusions moreover the united states appraiser looked at every individual operated and appraised each property based on its individual characteristics the class appraiser praised twenty two parcels and then extrapolated somewhat more assertively similar properties and so there was  get these numbers correct your honor that should have been done and that is what we learned from this case and but having the is the error revealed we could not report to this court that it was harmless presence on the spreadsheet you can see how the numbers flow and it turns entirely on the assigned dollar per square foot value they were assigned different values the question is why they were assigned different values in the answer is in the extrapolation methodology which we think has a mathematical law because of the size of the property increases the value of the total property decreases which cannot be the case it may be that the marginal value of a square foot creases but i can see that the total value of the property decreases and that becomes apparent as soon as you see the documents that the was least requested but the united states has does this at least what you think of as an error and affect other properties yes your hon formula there's the same basic formula but the way the extrapolation worked was different the class members did not even know which group they were in or which the representative parcel was for their group they didn't have the basic information and would please the court i think i'd like to start by asking the court to step back for a second try to understand the purpose of the requirement of notice the purpose of notice here is not to ensure that every single member of this class is fully satisfied by whatever ultimately ends up being the amount allocated to that individual plaintiff the purpose of notice is to inform everybody in the classes to what their outcome will be oftentimes that's based on the formula in this case it was based on very specific numbers that were exactly down to the penny how much money each of them would receive clients are entitled to know the basis for that that formula are they not they're entitled to know exactly how the formula was acquired ok and and the just in the court of federal claims finding on this which i don't hear anybody challenge is clearly erroneous as the parties with the assistance of experts and the senior judge of this court agreed on the fair market value for the parcels at issue so what they knew was the methodology was  appraiser had done a very sophisticated analysis of representative parcels try to apply it to each of the individual properties no no no don't stop me the government had the opposite it so it's your argument  that your clients provided all the information requested by the woodlands i don't know that was all it actually was all the information that could have been use of useful to the woodley's because we don't have a specific appraisal of their particular of their particular property what we have is the allocation that was put in that took that we took from the basic appraisal of the representative properties and then gave them the specific numbers that's exactly what was their entitlement and they of course the purpose of this exercise right is to give them notice an opportunity to object at the hearing they clearly satisfy that both as a matter of rule twenty three and as a due process matter and if they have a complaint and if they have the underlying information they still have the full opportunity discovery as to the front as to what went into the process of the of the final settlement why should it is all the time why should they wash and they just asked their lawyer because if they did if there were but the question of the questions not but what do you do about it let's assume which i don't think it's true that somehow there's been a breach of a duty in this context that's not a duty that undermines the course i don't want in this particular case it's got a complaint it's got a malpractise claim you want to bring five you've got a complaint with the ethics that's fine nobody else complained about this and that's a think it's worth stepping back from and the reason why judge let's all prove this in toto is he's looking at a situation where two hundred fifty two of the two hundred fifty three planets are fully satisfied with the bottom line number in the provide a whole lot more information at least in the ones i normally receive in the ordinary course of business because i knew exactly how much money i was going to get and exactly how much the attorney's fees were going to take out of that particular approach so from my perspective at least the district  of federal claims having said specifically that this was through an a process that was absolutely fair got the right result and with respect to it and again i don't think whether we whether they had a basis for objecting individually or being unhappy with it individually this really gets you home but but it wasn't as though the court a federal claims ignored their objection he specifically asked the department of justice lawyer how do you explain the disparity between the wood lease property and the other property and that and the justice department lawyers that it's based on the frontage on the like the lake side frontage it would make a huge difference regardless of the numbers the methodology argument you might have known as mr frederick twice very specifically describes the methodology of argument as only coming up in the reply brief for the united states because it talked about the ultimate sandbags they didn't even raise in the opening recently we have an opportunity to respond to it but the reality is as as the size of the property gets larger the demand for the property decreases we all know that because there's a much larger demand for a very very large property so the idea that there's going to be a fall off should come as no shock and the notion that the government couldn't identify those methodological issues at home we're still not with thing back up and say that again as the size of the property increases it's the the market the market of people who are interested in property that large at that with numbers that large i think need creases you know i think you missed i may have that in any event your  sure speculation of something that was never presented to judge let's and what he saw in the methodology was a set of papers were were submitted at the mediation by a planet identifying specific values to those propert the defendant the united states government came in contested it maybe not every single one but a significant number of them accorded the d o j lawyer a new spreadsheet was then model that the spreadsheet was modified to reflect that and then the government said one hundred centers i can only get you one hundred ten million so you're going to find a way to come down and the pro rata discounted everybody by ten percent and that's how they came out with the number as as mr stewart said to the judge lefkow we don't put those numbers and the idea somehow they say here's one hundred ten million dollar check now you figure out how to hand it out that's not what happened what happened is we came in with very specific numbers and the mediator a senior judge of the court of federal claims evaluated it conducted negotiations with case there are sixty four plaintiffs who signed a contract saying that they are entitled to a contingency second of all there was no dispute in the district court that this is a common fund ok so that's not an issue whether we have a common fund here it's a little late in the gearing unfairly the cost of the action the government's very costly to answer first of all because there is a contingent fee agreement with sixty four of the point of those people those of money and that means the other hundred eighty are free riding off of the attorneys fees that are being paid by the sixty four even though every one of them saw exactly how much i was paying out about their not free writing because the government has paid the reasonable cost of the action well of the other people may have may have decided to pay more than the  shifting statute tells you what the losing defendant must pay in a world where we normally don't ask losing defendants to pay a nickel one and what is the what is that reasonable number what is the what does the contention fee or a arrive at and what is the the common fund theory arrived at that's what the plaintiffs must pay their lawyers that's the purpose of that and we know that sixty four of these plaintiffs are going to pay their lawyers a significantly higher sum of money and that's wh irritates the comment that the basis for the common fund is that is why should a free ride off of what the others are paying because that was the money that got us into the litigation to represent them in the first place do you do you disagree that that the amount paid by the government is a reasonable want to see a reasonable fee for what a defendant in an exceptionally american rule should say yes that's a reasonable fee it's not a reasonable fee if you agree it was or it was it was on that the problem of course is the one circuit specifically held in the site in case that it and both the seven circuit on another circuit have rejected the idea that fee shifting statutes preclude you from adopting the common fun permit the the parties for example the the last council to obtain attorneys fees from the common fund that it undermines the statute purpose so their feet shifting statute and it's contrary to designed to tell you what it is that the united states should pay the idea that there's going to be a a reduction from what the class would ultimately receive mean according to the supreme court identify that exact problem of course it's going to be some some deduction as a consequence of having to pay the fees in the contingent fee arrangement but that's not you know there's nothing in the statutory scheme that's going to guarantee that every plaintiff is made whole indeed it's inconceivable that every plan is going to be made whole in  arguments not i'm not i just think that i mean i don't think the government should be heard here at all because i think it way too late in the day you cite new hampshire v maine for that proposition and then the court says that a party  that succeeds in maintaining a position can't change that position simply because they're interested have changed how is the government's interest changed well in the government i think the government's interest is rare is is out of concern for the for these kinds of litigation is going forward in the future they seem to be for satisfied with a feast with a can always a compromise on change because the wealthy their perspective on these issues change with the size of this particular award previously they were much much smaller awards and the attorney these are fairly insignificant this one obviously with a common fund is much larger i'm not saying why is it more interested i'm asking how it's court interests have changed that's what new hampshire v manes talking about i think it to limit the attorney's fees it would be available in a way that will prevent a lot of these takings claims from being brought let's run to put it in context for a minute when there are literally hundreds of taking signal on that are never recompensed under under th trails rails a trail scheme because people don't know about it they don't understand it and they can't get lawyers to represent them so the idea that the government going to work hard to try to stop additional lawyers from taking on these matters then comes a shock it slows and the only making that state hundreds of non representations well i can only go on my own my co counsels assessment of the of the way the market operates he knows that there are lots of these rails be brought up because of the difficulty of the right but if you and i understand that the problem here is that if you're going to take on a case against united states government litigating on these kinds of issues i mean this is been six years of an incredible sl through an extraordinarily done set of materials to find out at the end of the day that the united states government has done a complete one eighty in this approach even after it settled the particular litigation and is now asking us to go back and in effect start over at this stage and the idea that somebody is going to assume all of the costs all of that all of those legal fees and not get paid anything for eight ten twelve the other same assumption whether it's a reasonable attorney p provision or thirty  if you lose you lose it right but if you win you get a reasonable attorney's rights and their religion it seems to me what your objection is is that that the reasonable attorney fees under the statute really is have nots no my objection is that the the the reasonable and make sure that we use more attorneys are available to people to sue the government all i can read to your honor's just as justice white opinion been ago what's the purpose of the fuchsia thing is to determine what the losing defendant must pay the government notes in its reply brief that there are only been a handful of cases where this common fun fury as been trotted out and that's the reason the is that the you are a statutory fees are reasonable and are accepted in virtually all cases in this first and that a supreme court precedent in the boeing case and in the green out case and that's why i started with you if you have a reasonable feel in this for philips camp you know straight face at least say this is not a reasonable fee when they've added up all of their hours multiplied by their what their market rates are that is a reasonable fee by anybody sest a mission of it and so once you have determined that you then have to determine if there are some inequity in there can't be an inequity where it's is getting its entire fee now the reason why the circuit that have kept open this issue of whether or not you can have a common fund when there's fee shifting if for the one issue the third circuit addressed this where the defendant is bankrupt and so the defendant can't pay the statutory fees and so therefore you have to look to the other class members to say is it going to be fair to have this time just enrichment bestowed upon a class members and there's no one there to pay the statutory fees that's the one circumstance where of said yeah we're going to leave open the possibility confound look worst that can happen here not withstanding our nation's budgetary woes the united states is going to be good for the fees and then comes under these takings claims now with respect to the what about  requires they were reasonable so i i don't want to speak out of turn to the i have no brief to defend some of the other fees shipping other than to say this is the most liberal permissive shifting statute dr ever seen because it mandates that the government pay the fees it mandates that those fees be what are actually incurred it mandates that they be a reasonable fee discordance construe that to be the lodestar effect so there i don't think there's any situation where there may be discretion by the judge to do this that you have to have here now what about the agreement the contingency fee the agreement it seems like the class members were world aware that they were going to pan the contingency fee how does that come into play with respect to the actually they weren't if you look at the special appendix i think it's page two thirty four the injury of appearance form they weren't told when you opted into this class that there was going to be a request for contingency fees at all and so if you're what the ethics council opined on was that under washington professional responsibility on this property in the state of washington it would be unethical for a lawyer to get the statutory fee and to supplement that in augment that with a contingency when you're you're out of time would you like to conclude i would want to say that this notion that the government somehow sandbagged the class council in the reply brief is false because what the government as i read your brief was responding to misrepresentations that have been made in the brief about what information had been disclosed and notably counsel here today cannot point you to anything where you or we or the court or federal claims can actually reverse engineer and double check the allocations that