the next matter on our calendar is in re foreign exchange benchmark a class case versus the parties or it's cornell vs haven film retirement systems who are the class beneficiaries benchmark foreign currency market the district court awarded a three hundred million dollars fee here in a case that had little risk enormous prior government involvement and early settlements of two billion dollars that eliminated all risk of non recovery which is the risk that matters class counsel talk about the fact that even after nine defendants settled there were still six additional defendants that held out for a period of time but it's not the risk that you won't succeed against every defendant it's the risk that you won't you'll take a loss in the case that you won't recover your attorney's fees and nine dollars settlements as of june two thousand and fifteen were more than enough to cover all of class counsels attorneys fees for this case including their one hundred and seventy four million dollars ultimate lodestar would still have been easily covered by that two billion with a multiplier for the time the class council incurred prior to that st settlement which was really the only risk exposed time in this case the district court focused on the benchmark method of awarding a fee rather than looking at the risk but i believe the district miscalculated the benchmark number one dollar by including cases from outside the nd circuit most notably the l c d case from the th circuit the th circuit  oards fees are looking for cases of comparable size and difficulty so she was really limited to the nd circuit isn't that correct well not if you believe that the nd circuit in goldberger adopted a different method of awarding fees that is not benchmark based but looks at the facts of each individual case including risk and most importantly fee agreements in other comparable cases and that's what my client put in a fee agreement between the state of mississippi a sophisticated legal consumer institutional of plaintiff the files a lot of these cases a lot of mega fun cases and that fee would have called for a or that fee agreement would have called for a fee in this case of five percent that was it entered into between a sophisticated class council and the state of mississippi in the m case however that is their standard fee agreement that is that appears on the website of the state of mississippi that any outside counsel that wants to work and represent the state of mississippi in a securities or antitrust case has to agree to and that's something that you know didn't exist in two thousand and goldberger was issued another court there referred to fear agreements as the ideal proxy the best evidence of what the market rate is however at the time the court said it may be difficult to find those in the intervening twenty years we now have a lot of evidence of what that is in the picture or us case which coincidentally came out about the settlement was announced about the same time as the settlement and that was before judge ray cough there was a fee agreement in place that called for a nine percent fee in that case but despite that judge rico felt that because of the size of the settlement and the enormous fee that would evidence of the agreements that range from twenty five to forty percent so i mean certainly those must have come from mass tort cases because there is no you know there is no institutional plan if you would ever agree to such a fee she did reduce it to a certain extent based on her finding of this benchmark figure but after calculating the benchmark based on some certain cases that just don't just aren't similar to this case the l c d case  mentioned air cargo is not similar that was a group of settlements that were to reach peace over several years they were not treated as a as a mega fun by the judge in the eastern district so that's not relevant nasdaq pre dates goldberger nasdaq represented the multiplier for that fee so i assume that the risk in that case was quite high credit default swaps another case relied on by judge show field the multiplier in that case was six so we again we have to assume that was a very high degree of risk there judge show field herself held that this case had low risk because of the prior government investigation followed by guilty pleas followed very quickly as soon as they successive settlement yet she didn't ask for the lodestar to be broken down by year which would be relevant if you were if you're confronting a situation of continually decreasing risk you'd want to know w lodestar was incurred in the st save sixteen months of this case when you know there was a risk that you might not of recovered anything and then after that point after two billion dollars was in escrow you know class council knew the think they could yes your honor i think class counsel acknowledged the case of st impression in the nd circuit i think there have been some good opinions in the i p o case saying you know why should class council get an additional percentage for recovering their own expenses that and it may lead to you know class council being somewhat profit if they know that that can be a profit center as well as you know their fees but i just believe it's inconsistent with the common fund doctoring that  a reimbursement of expenses is a benefit to the class it's class counsel argue that it's like vilhelm you know where the this court held that cypre should be counted as part of the common fund but i don't believe that compensation of class councils expenses litigation expenses is could be construed as cypre but it's better fits the class members to what they spent on getting or benefits the class members because they won't be on the hook for those expenses if the case  therefore they should be charged with the entire amount of the expenses well i mean the expenses are coming out of the recovery in any event they're paying an additional two million nine hundred thousand dollars for class councils recovery of those that's the issue should they be paying a premium on plaintiffs in the trial court in front of judge schofield and i'm representing the plaintiffs before this honorable court we're here on an abuse of discretion standard it's an appeal of an award of an attorney for the based on the common fund thirteen percent of the common facing plaintiff's counsel this is from a court who has had a very hands on view of the litigation over five years lead counsel appeared before the court dozens of times we provide to the court with b discovery disputes she was well aware of the risks facing us and she was well aware of the labor council class council under took on behalf of the class and of course risk in under goldberger has to be fifteen during that time pardon me the case was expanded ninety eight percent this is called in re f x and i trust benchmark litigation it was initially restricted to the benchmark that's about two percent of the daily volume we expanded it and therefore increased the risk of what we'd have to demonstrate it preliminary approval we faced three objections objections from the non settling defendants who were arguing essentially was a canadian cars which was a court shouldn't settle shouldn't certify a settlement class now because the court should simply wait for settlement later on and of course in terms of risk we find when we expanded the case to include exchange trading it was originally just simply over the counter trading when we expanded the case to include exchange trading the exchange traders who brought separate lawsuits were bringing canadian sar they were bringing arguments under auction house literary works and super spots essentially arguing that the exchange traders hadn't been acting adequately represented in the initial settlements so what did we do we worked out a system where we had risk and litigation well at the same time we were the settlements were not finally approved this isn't like treatment it sounds like most of what you just described large part of it has to do is figuring out what settlements would be  to the contrary most of the work in this case was done toured with an aim toward preparing this case for classification the classification is the off ramp for defendants in antitrust actions so from january two thousand and fifteen up through the present because we have a c twenty three dollars c four class now that we're hopefully going to be able to try we were putting together evidence that would enable us to demonstrate how do we know how much of that work was what you're seeing now versus you know settlement related what you're saying earlier if we don't have a breakdown of hours or or tasks but the question is whether or not the trial who are who has the best vantage point had an idea a very good idea of what plato's council were engaged in and as i said we've appeared in front of her dozens of times and we provided to the trial court by monthly status reports that gave her a very good indication of the disputes in front of the court and what class couns  and the risk stayed with us the entire time in two thousand and seventeen we became aware of a concerted after to opt out class members from the settlements we were we became aware that certain of the representations being made to prospective opt outs were misleading we went to the court and we had we obtained in order that compelled those entities who were true who were soliciting opt outs to send out corrective ever tyson that didn't stop those firms they ended up seventeen large energies seventeen large asset managers which comprised thousands of individual funds that opt out effort triggered a mediation between the defendants in plaintiffs counsel a number of the defendants had buyer's remorse meaning they thought they overpaid the entire two billion three hundred million dollars settlement must when it was almost blown in the spring of two thousand and eighteen when a mediation in front of mr feinberg mr feinberg ultimately determines that the meet materiality provision in the settlement agreements that would have triggered the blow was not met the risk of litigation in an area that's part of the risk of litigation sure because if those settlements become undone those those defendants come back in the case but this is a conspiracy case so what we settle with j p morgan we still have to litigate with fifteen more defendants we settle with u b s we still have to litigate we're fourteen more defendants so on and so forth we were litigating with none suddenly defendants the entire way through even in june of two thousand and fifteen when we had a framework a framework for s to hopefully establish the existence of a conspiracy to fix spreads and to establish that credit suisse is part of that conspiracy and is still litigated we're still fighting the way that's right  an element of the foreign exchange market involving electronic trading she was concerned in that case about what the net amount was going to be paid to class members and i was counsel in that case so when we brought these settlements to her in this case she see would pay no more than eighteen percent we initially asked for sixteen dollars but no more than eighteen percent fees and expenses what a judge scofield do she reduces fees to thirteen percent she  pays us our expenses but she structures interest so that all the interest on the fund including the interest that would run that would that would accrue on the attorney's fees would float to the benefit of the class so to date sixty six million dollars has accrued net of taxes sixty six million dollars has accrued in that fund so if we are going to distribute in two thousand and twenty the net for the class will be the class w see approximately eighty seven percent of the fund the class will have paid as part of that the district court addressed whether the thirteen percent would be net of expenses incurred she  the court awarded expenses st then she awarded fees so she knew that it was gross with the denominator for the fees is what she wanted the fees off the gross right but if she was rest whether that was appropriate you know the difference in legal authority across the country about whether what the right denominator and so on i'm wondering whether the district court in any point addressed that specific issue or whether you're just assuming that she did i can tell you what the court did address this was this is before the trial court and she is she is she was concerned about whether or not class members would see she was trying to maximize the amount of money going to class members which is why she structured the fee agreement or the if you were the way she did and that's why when you take into account interest net of taxes class members will see eighty seven percent of the award and because of what we reported for class members they receive one hundred percent of their damages  in this kind of case when you can get one hundred percent of your damages you've hit it out of the park thank you thank you reversed a few word that represented a lodestar multiplier for time spent devising a plan of allocation which it's undisputed that here a large portion of class councils time after june two thousand and fifteen was spent devising a plan of of allocation they say that they were also working on classification but again that's not an issue in the settled cases manageability doesn't become is no longer a concern under m  they were working on classification for the other defendants the six who held out and settled later but that does not that doesn't mean there was risk that their fees wouldn't be paid that's the key  you know the fact that there may have been a what's called a blow provision that enough people may have opted out of the defendants would have gone back to mediation that the result of that had you know mediator feinberg found that that was  satisfied would have been a reduction of the settlement proportion to the opt outs kind of similar to what's happening right now in visa master card number of large plants of up to that of the visa master card case and the that is simply reduce the amount of the settlement doesn't mean that the settlements will go away entirely so the blow provision risk is not one that threatened to have to threaten class council with losing or taking a loss in the case and i i think we really need the breakdown of the lone star by a year and tax task rather so that we can know how much of class councils time was spent after two thousand and fifteen or in this case was only used as a cross check it wasn't reimbursed to be sure but not an answer because even though they incurred it and then had to wait to get it the use of current hourly rates generally accounts for that delay in payment i see my time has expired thank you very much