robert chlor for the appellate james elect of focus primarily on two issues both of which surface in this court to target data breach opinions from two thousand and seventeen in two thousand and eighteen the first is does the rigorous analysis and close scrutiny required for determining determining adequacy of counsel on a rule twenty three allow district court to ignore the ethics opinions of experts so i doubt by class coun concerning a potential conflict is a district court required to look at the opinions in our class members as are clients entitle to informed consent concerning the potential conflict the second issue which relates to the two the parties primarily by class counsel mr mclean can be redress through the appeal there has not been complete class recovery a twenty one point five million are settlement  for seventy million an estimated class damages is on its face not complete class recovery even if you look at on a per claimant basis on a the fifty five the fifty percent out of pocket damages still aren't complete recovery because they don't address and don't account for punitive damages that were alleged the parties want to say you don't consider punitive damages at the adequacy in considering the act adequacy of the settlement which i think is generally true but that's  what we're talking about here we're talking about as or been complete class recovery and the answer is no those claims have not been addressed and the settlement broadly releases all claims including punitive damages claim so obviously they have some value finally even as just standing even if mr bigley asio can't get any more through the appeal he at least has standing to challenge the conflicts of interest involving class council and the class has a right to review the expert o on that point we know there is at least a potential conflict because class counsel sought out multiple ethics experts on the conflict a rigorous analysis and close scrutiny are required according to the target opinion to protect the due but all we have here is class counsel statements that he met with the next expert and after meeting with them he was comfortable in going forward strict scrutiny or close scrutiny and rigorous analysis  the court to go behind that statement and to inquire into the nature of those opinions and then to have them presented to the class the court didn't do that and just simply remarked that the fairness during that  class members weren't given this information concerning the potential conflict we asked for and we were rebuffed at the core of the district court and then the declaration of  inquiry as to the nature of the ethics opinions that are still undisclosed or at least some inquiry present no encrypts inquiry has been conducted and it's just not consistent with the court's opinion got it wrong on this class size and it took it took those numbers from class council the only evidence in the record is that the class was three point five million members and that came from a declaration from the settlement  the five hundred thousand figure was something that comes from us councils afoot and a single footnote in there of the reply and was not submitted in a declaration so the three million differen e in class members is a clearly a sort of clearly erroneous fact of the terminations the question then is what is the effect of that clear air was it just a side note or did the court rely on the district court's order identifies the supposed five hundred forty one thousand class members on page six of the of its order before approving the settlement and then the thirteen percent the supposed thirteen percent claims rate which is also an air on page sev and then again on page fifteen and then only on page eighteen as a disk report actually approved the settlement so it's necessarily enter woven with the opinion and just conceptually you can't the most and they also argue that during the fairness hearing our local counsel woods said he agreed with the thirteen percent claims rate and that's just that's a misreading of the the transcript your last members and then the final point is the excess these can and should go return to the class or bank american and allied principals into classes property and not a third party the court already determined that redistribution redistribution was feasible it decided the class shouldn't get it because there is recovery in anything more would be a windfall but again there was not complete class recovery the bank america case issued by this port looked at a settlement looked at the settlement globally and not on a per claimant basis and then noted the plaintiffs would recover quote only a percentage of are various descriptions of liquidated damages and look at it to me just a minor standing as liquidated damages arises in the context of a contractual action where the parties anticipated the amount of damages but then you know sometimes you hear that sure of the difficulty through the i think on that note the second circuit's opinion in masters where the courts determined that claimants did not have complete recovery e but the masters case just didn't make any reference to the ask you whether those damages are ascertainable or not is just a question of is that something that we're contemplated as actual about fees could improve the finally even if we didn't reserve air which we did the court has by do a duty to make sure the proceeds go as much as possible to the intended beneficiaries unless you have any further but i'm going to address the issue of the ethics and the standing most so starting at the ethics this this case was a very common situation we got a state class certified you go into publicly that we had a twenty one and a half million dollar settlement i got a call from a colleague of mine and he described the step in just fourteen fifteen of our brief but i got a call from a colleague saying that there was another lawyer who was basically thinking up some way to try to intervene in the case and was true because i e mailed several but in fact i only ever spoke to one and director asked for the disclosure of that expert's opinion and i would argue that the been and has been as first of all the what the object of cause a anybody reading that sentence would know what the third it was disclosed to the class and as much as the notice mentioned at least that the class period was tied to martin people and california to the martin case to the ra a case for people in the other forty nine so at the end of the day though the question is is there a conflict and clearly the answer is no during the final approval hearing and most importantly the district court abuse its calm and abuse its discretion so during the fairness hearing which was two hours the court gave objector the opportunity to say many times what the potential conflict or how he could be better off from a damaged perspective if there were no nationwide settlement and dr clearly was not able to articulate that and that really actually goes well into standing because the reason objector could not articulate that is because he's getting something like one hundred twenty seven percent of his damages under our  damages analysis and methodology in which this case according to our our expert so the damages are basically for the one product that was in the forty percent thirty eight percent range in other product forty five percent range the average was about forty three percent everybody's getting con regarding the class size as we explained in our brief the three and a half million was an initial estimate by the class administrator media partner based on we do you consumption data in an effort to try to get a broad notice and we had a lot  the final number that we arrived at the five eleven isn't based on any evidence it's just a footnote in and a preliminary or final approval by that's not true the it actually comes from the declaration of the class administrator ness and that's at appendix three thirty paragraph of her of her declaration supporting final approval that mentions those numbers but in any event just as a matter of statistics and logic if you've got seventy thousand people making a claim for twenty two million dollars to buy that twenty two million by the hundred sixty four million that was at issue it's a pretty good deduction that if if it's thirteen percent of the dollars that are issued and seventy thousand people must be thirteen percent of people it now is that number is our number five forty one exact of course it's not exact this is inherently the exact numbers inherently unknowable but consider this even if class members overstated the claimant overstated by twenty percent and the maybe the real number would be eleven percent or ten percent and any event it's very high but none of the van horn factors speaks to claims as being one of the factors in determining whether a settlement is fair reasonable and ironic and i just want to so she was aware of the numbers as they have done just that he cited the three the three and a half million she was aware of the five hundred forty one thousand she made a finding based on the evidence in the record and the objector cannot show an abuse of discretion to not show other than speculating that one number is more accurate another cannot show an abuse of discretion but at the end of the day number one claims rate is not an element of whether a settlement is fair or reasonable and how to put a number to the district court's decision really  rely on it she cited it in the excellent results section but only as the very last fact or after talking about all the last relief and jump of relief she cited in the fees but again it was the last thing she cited after talking about the other things and she cited it in here to liberties with the record if the court looks closely at the actual record the decision the transcript of the documents what they've tried to do is create a factual issue here is they don't reflect what the actual those numbers were the five hundred forty one thousand and thirteen percent now even then the district court did not predicate her findings in the approval of this settlement on that it was on the van horn fact and what the court looked to was the overall fairness of this settled and in the just settlement almost unlike any other settlement the consumer product area false advertising the plaintiffs here are getting more than one hundred percent of their names this case was about a little sticker on the neck of a bottle that said that you could get up to x gallons so for example it was a concentrate and it said you could get up to for example estimated that the percentage of oracle under phil was about forty three percent the settlement was predicated on payments more than a fifty percent agreed in this case that the settlement payments were between one hundred percent and one hundred twenty seven percent depending on the jurisdiction product was purchased in this case there's one hundred percent recovery so i'm not really sure why plaintiffs are here arguing factors are appropriate so i preserve in in the use of class other two factors to look at here and and let me quote from the circuit in bank of america because the it means compensatory damages so liquidated damages really come out of the context of breach of contract situations and if you look at black's law dictionary black's law dictionary describes it as an amount contractually stipulate is reasonable estimate actual damages to be recovered by one party if the other party reaches it does no there's no contract to write correct so in fact was there one in black america the other wasn't i'm conceptually i'm not sure there's any there's there can't be such a thing as liquidated punitive damages you know with respect i don't see why a contract black if they break it down as preliminary numbers as opposed to subsequent numbers there's just no that five hundred forty one thousand figure is not in the administrators declaration there's a reference to the  total claims and a reference to the value of the value of total sales and they extrapolate numbers from that to you arrive at a thirteen percent claims rate but that's backwards you don't wait until the claims process is done look at how many claims there are and then say oh well there that must be this many class members that's not how it's done and it's not how it was done in this case the salminen minutes trader said the use of this is our reason a last minute of three point five million class members that was never class counsels discussion of the conflict of interest that transfer order from the california court is not the same thing and is not the same standard as a final certification order where you're required to undergo rigorous analysis closely scrutinized and uncover conflicts so that's that's not good enough he obviously recognize a conflict because he sought out multiple ethics experts and if there is no problem with the ethics report are the ethics  expert or why not submit it why not file it with the district court and why not disclose it to the class if there is no problem i don't see why he wouldn't have done that he's just standing up there says saying this is you should read into this is you can guess what it must say but we don't know what it says and and we don't know why he went to the e mail multiple ethics expert and have some said you know if there is a conflict there is a potential problem and again he says well we could name back we can identify specify we exactly what the conflict was but that that's his obligation that's his burden is to establish that he's an adequate representative of the