may please the court theatre it's frank for the appellants this case presents a fairly straightforward application of this court's decisions and you bang first is tell us seven fifty three a thirty seven eighteen and the september nineteenth decision redmond versus radio shack the redmen ratio which was fifty five percent and you bank and sixty seven percent in redmond is eighty four percent here where the attorneys requested four point five million dollars in the class received less than nine hundred thousand given that is so straightforward i'd like to move to an issue that these previous decisions didn't directly address which is what the ninth circuit calls the kicker and what redmond calls i think more precisely a separate fund or it were a segregated fund and that's the fact that the attorneys fees were kept separate from the class recovery so the defendants were willing to put four point five million dollars on the table because that's what they thought the litigation was worth to settle now of course the plaintiffs had pointed out that  from challenging the funds at all and second by putting it in a segregated funds a separate fund in means that objectors have no financial incentive to challenge the feel word qu ward if even if they come in and object to the rule twenty three eight requests and get the fees reduced all of the benefits recounts of the defendants and the objectors under existing law at least would not be eligible for attorney's fees for that success so only pro bono nonprofit public use of attorneys who would come in and costs and so and dependence faced a lot of risk that they would be on the hook for the full four point five million without i think the objections that we made below i think it was very likely the court would've awarded the full amount because there would have been no scrutiny of the claims of the value of the injunctive relief there would have been no scrutiny of the claims that the settlement was really worth one thousand point two million because they would there never would have been disclosure of how much the class actually received because the fairness hearing was set before the claims deadline and the parties argued before the court that they didn't need to hear that and my experience is that courts don't ask for that unless somebody really fervently insists and sometimes not even that  about one holistic settlement and the fact that it was structured to pay the attorneys four point five million dollars for themselves it goes to the fairness of that and rather than agrees with that principle  to the extent there's that weird balance between twenty three and twenty three h and certainly winning on the twenty three age issue doesn't affect us but to the extent that the twenty three age issue informs the twenty three issue it doesn't affect point was that the argument that you and nobody else has standing to raise their challenge is the problem and that's exactly right that's exactly the problem with the segregated fund or the separate likely to hear one sided presentation and even if it hears a two sided presentation there is no basis for anybody to appeal because if i were to just appeal the fia ward and not appeal the fairness of the settlement i wouldn't have instead of in a common font two point four million dollars that the defendant was willing to pay to settle the case whatever the merits of the case was is going back in the defendant's hocket seat in effect cla counsel breached there for jury duty to the class because they left money on the table that the defendant that the defendants made very clear they were willing to pay well if any  the court found that twenty million was a very helpful to the class but the court also seems to be well aware that the actual recovery was only two million trial and so i'm trying to figure out what the error is and all of that ok well unpacking both of that yes first of all the court only reached the issue of what the actual recovery to the class was because we objected and the court postpone the fairness hearing and demanded additional submissions to determine what those numbers were otherwise we would have just seen the ex parte presentation this is worth one thousand point two million there are some claims and but gosh knows a lot of people are going to wait until last minute to file claims and you don't have to worry about it second of all this court has already decided in new bank and in redmond that the issue is not the amount available because you can always make a lot of the eligible the issue is what is the actual recovery of the class it's very easy to create burdens to recovery or make the claim process more burdensome than it needs to be and the defendant's own evidence shows this in their argument that well the claim results might have been high they'd themselves put in evidence in their supplemental appendix that wasn't there below of a california state case where the claims process insisted of individualized notice that says you are entitled to recovery and this is how much we think you're retitle to here's the number you put in and you can make that claim whereas in this case everybody got a postcard that said you may be in them or the class go to a website and try to figure it out and if you go through all that work maybe you'll get three dollars subsequent legislation or the rule making however obviously there's a lot of rumbling about that principle and how broadly it should be applied as i've been wondering about this when we owe one courts award fees under fee shifting statutes to prevailing parties they are of course required to look at the actual results and benefits statues think you know if that's correct then perhaps we might say that if you are working under fee shifting statute such as some of the consumer protection statutes here then it would be at least permissible it may be required to look at the actual net benefit to the class before deciding what are reasonable fields i think  the paradigm we put forward in our brief that boeing is a twenty three h case though there wasn't yet a twenty three page and this is a twenty three d settlement fairness case is the way to look at this because if you go with their proposed rule of decision then you bank was wrongly decided because there's no question in that case that ninety million was made available if everybody submitted a valid arbitration claim there would have been ninety million dollars awarded to the class and then the thirteen or eleven million dollar fee word would have been reasonable and there would have been any question of one sidedness and the same is true  red where the entire multimillion member class had ten dollar coupons of the eligible to but only eighty three thousand claimed them and again if it was a question of availability that that settlement was arguably fair so the the availability availability they said go ahead and disregard the seven million members who didn't get individualized notice four point seven million did get individualized notice they could have each claimed three dollars and then add in the attorney's fees and ad similar language was allowed to remain on the side of the package and other than speculation what is there in the record to support any falle  moving similarly deceptive language to the side of a package i mean unless that expert report distinctions between the old label in the new label the report seems to be a very limited use in deciding the value of the injunction if i'm happy to respond to that your honor because it's something that mr frank has raised in his his papers and we addressed it but i think what you first have to do is understand the target market who who is the target market for these products which are primarily people who have osteoarthritis the common symptoms of arthritis there are true veins of representations that are made about these products when i call the paleo ation representations or comfort mobility i don't know could you get to the point ok i will get to the point the point is that there is a material difference between rebuilds renos revitalizes and strengthens which is the key term that i think your honor is focusing in on and fo osteoarthritis patients or subjects or for victims rebuilding renu in revitalising is the holy grail because you have a condition where you have degenerated  i thought i was answering her question i'm sorry look i don't understand a thirty month injunction does that mean that for thirty months you can't deceive the consumer but the other thirty months yeah back to back to the  misleading representations well your honor i think if you take a look at it it's probably stronger than most f t c consent decree well answer my question what is the point of a thirty month injunction against misleading advertising labeling and then at the end of thirty months you go back to the misleading labeling because that's not the way the rim of the set up the green a set up that if they do go back to that the step of labeling again they will be subject to a lawsuit if they don't but that doesn't make any sense if if you're going to if you go back to to that and then you're sued what have you gotten from the thirty month limit on the injunction the thirty month why isn't why isn't it a perpetual injunction but of course the defendant can always go into court and say you know conditions have changed and therefore  be the situation if they were to go back to the label to sign what is the point i don't understand why do you gain by having a thirty month cut off instead of a perpetual john well from my perspective that the gayness is no longer on the labeling and they're going to have to make a decision to put it back on and so that in itself is an achievement because it's been on the labeling for over ten years so now for that reason that she from an island well i believe it's actually fund and the clear sailing agreement for four to have billion dollars can you explain to me how that combination of features is a benefit to the class well i've been doing this for almost thirty six years and most of at least from my perspective as class counsel i feel the most important thing for me is the negotiate the benefits that the class first without any mention of fees in fact that's what i do all the time i refuse to talk about these because i want to maximize the recovery to the class you know reno is case you never would believe that i mean in this instance the descendants you know agreed to pay class council more than twice as much as you know the class could possibly ever end up you're literally moved almost the same wording from the front of the package to the side well i would submit to you that we didn't because we remove of the rebuilds revitalised and removes is repeatedly made through out the labeling and has been for ten years the word strengthens appears on maybe a footnote in wanted to labels so clearly the message is that the defendant want to impart to consumers for the last ten years are the ones that they chose to make and review it rebuilds renewed revitalise with ones that they were making for ten years strengthens was not because it means you're not going  study of how you know consumers react to these different words not not in connection with the settlement no well that's very surprising because after all the question is what interpretation is the that in order to justify the settlement we should have conducted a consumer survey absolutely right well then i submit to you that what will happen is that we will not the bar will not  well i couldn't i couldn't off the top my head give that breakdown that in the record it's certainly in our fee petitions yes the breakdown yes i mean the partners and it's us yes could i repeat my question i'm sorry fees when every defendant we hear from tells us look our concern is the total amount we're going to pay we are indifferent to cash as between class  attorneys fees well in this case again we negotiated the class benefits first why but because the class benefit for them well the class benefits because we got as much as we could for the class first and then addressed separately they've got to hold back they're interested in a total cost why isn't your class better off by simply saying let's find out how much of the defendant is willing to pay  here combination of injunctive relief and cash and then we will ask the judge to give us a reasonable feel ward well because here we had an uncapped settlement where the class could get as much as they claimed within the parameters of the settlement claims so that nobody could have taken that seriously right i mean surely you all didn't expect all the class members to claim right  you go to the website and there's a very confusing business and all sorts of important documents you're supposed to look at finally you find this ten page claim for very confusing for ten dollars how many people are three dollars or whatever it's three peat really going to fill out that well one in ten what one and one in ten thousand is that what it is well your honor i can argue with we i believe the claim forms were worms you know they're not ok they're not they're made up to discourage people from apply and and you get a very very low turnout very low while i'm at the red light is on i hope i've answered your questions had trouble x excepting the level of surprise at the low claim rate i'm wondering who would claim file a claim for three dollars if the claim form required you to state under penalty of perjury what month he you bought a bottle of pills several years ago i would also think that experience class action lawyers which all of you are know with fair amount of certainty how many people are going to file claims i would have thought that you would have hired experts to predict the size of the a court should assume something is amiss while i think this court's cases says that certain circumstances are suspicious and warrant and warrants special scrutiny i think with respect to the claim form what you have to keep in mind is that from the defendant's perspective what we are thinking about is this settlement as an alternative to litigation no doubt there were low claims made and it was because for a variety of reasons i think the claim form actually is as these things go for experience or it's not a good answer of course as these things go because the company wants as few claims filed as possible i could so in all the cases we see these impossible claim for us there is no reason to have a ten page claim form for a three dollar claim now data can be simplified there's no doubt if we simplified there and that people weren't so why why should it be why should the settlement be approved if it can be simplif if the if the claim form can be simplified why isn't the judge say simple form for three dollars claims what's the excuse for this i think that the i think that when when you sit down to do these things one of the things that you're concerned about is that you're going to give misleading information or incomplete information you're going to target the ability of people to file as many claims as they have based on the number of purchases they've made the key thing here though is the alternative is litigation and at the end of the judgment what we asked to be shown here which is merely an estimate within a month of when you purchase these products no other proof is your mere statement alone not taking a position on the amount of fees what we're here to do is say that this settlement whatever you do to the fees and we you can go in any direction that's obviously at your your discretion but whatever you do the fees the settlement agreement claim percentage but if it gone to trial i'm not sure you would have seen a much larger claim percentage because the damages that would likely be available to an individual was it was never going to be substantial in this case and the proof would this case this case is not like the bluetooth or the radio shack case where the settlement took place very early in the litigation this case took place after extensive discovery including expert discovery discovery one of the cases in a closed another case out of massachusetts was pending a look at what the judge there calls an exemplar trial it was a trial of an individual claims is going to help in his view is his procedure help inform whether to certify a class these these cases were far along your honor and that's an important fact here because i think that casts doubt or at least reduces the suspicion on the segregated on the segregated issue of the fees when you look at it from our perspective and what we care about and remember plaintiffs have to negotiate with us they have to when we have a concern they have to respond to it in our concern in a case like this when we tie off a settlement that has a much simpler claims process then that would be at the end of litigation and we say we put that out there we give them their injunctive relief and it's uncapped we then turn and we say what's our exposure on fees and we have exposure on fees in this case because there's substantial time already into the case we don't know how the court is going to value it so we say let's let's what we want is a cap on our exposure on fees we don't have a cap on the class side but we want on a recovery that's of value to us without taking anything away from the class that matters to us and so we get that in this kind of case and i think this court has been very clear in every case that they've dealt with these structures one thing that this court's cases including palla and more than a decade now of this court's cases tells us is that when we agree to this cap on fees that's not putting forth a half million dollars on the table it's saying we'll pay whatever the court thinks is appropriate but we know that courts are going to scrutinize this and the pella case your honor very specifically the reasons for suspicion there are off the charts different from this case i mean just taking one simple fact the payment of an advance of fees in that case just raises all kinds of red flags about collusion between counsel at the expense of a class in that case now there's no whiff of anything like that here this is what is called  understood that that's the allegation no question what i'm trying to suggest is that a structure like this in a case like this that is advanced much further along than bluetooth or radio shack had advanced where we know a in your mind there are some ratio of the tourney's to class recovery which a court should presume or possibly suspect that something is amiss i will say this because again i'm bound not to take a position with respect to the fees the council is entitled to here we know when we agree to this cap to limit our exposure we know that one of the factors that's going to play a significant role in the court's evaluation of the fees in this case or any or any class case is the value of the recovery to the class now mr wellman explained that that provides him in the two stage process an incentive to maximize the recovery to the class we think that was adequately and fairly done in this case and so whatever you do to fees in this case that aspect of the settlement the substantive aspect of the settlement should not be disturbed and should be a fun mr mark lindquist factual question these bottles of pills how much do they so forth so that's in the it depends on the size there's a broad range is a complaint in so the three dollars if you don't really three dollars is is you know roughly fifteen percent of twenty roughly twelve percent of twenty five in a force it's not just three dollars because you can claim each person was entitled to claim up to four but it's that as a defendants say that they're willing to create this cap because they think the district court will reduce the fees based on what the class actually recovers that's it contradicted by their own arguments in this case where they repeatedly told both this court in the lower court that amount the class actually recovers is irrelevant now they've stepped back off of that because redmond and eubanks say otherwise but in pages twenty two twenty three of they are brief in this court and what they said below the judge you don't even need to look at that you can just approve the settlement because we made it available because you did run made it available to the class of the availability that's now we're not alleging that there was a smoke filled room of collusion how can we ruin the classes rights to recover we're not even saying that the settlement that that the claims process has to be the simplest possible were just and we're not even saying that the defendants couldn't take this allegation of one hundred million dollars of damage and settle it for six and a half million if at arm's length negotiation they decided that these claims are only worth pennies on the dollar so be it but if they're going to settle it for six and a half million the class should be getting more than nine hundred thousand of that they should be getting a proportionate share of that and even if that's the case that in the real world the claims are even worth less than six and a half million and the defendants are overpaying that windfall should not accrue solely to class counsel on happy to answer any of the questions