the case of been extensively briefed and my main goal here is to answer any questions the court may have i do have to make main points i would like to emphasize and go over if the court please first is the issue of the appropriate hourly rate and whether the district court of used its discretion in setting the allergy rate here the fact that the number of cases a sense that this sort of issue has been percolating in the courts a little bit and i know welsh is one of the cases where you got the rate that you wanted right right but in welsh there wasn't really opposition to the right correct so you can you know it's not really a lot of the  might want to argue no i don't believe it's law of the case either but i think it does state you appropriate standard which is entirely consistent with both ninth circuit jurisprudence and the jurisprudence out of every other circuit which is that  the end the first issue in terms of legal standards that the district court's ruling violated is that you first look to the form community as a community in which to set the rate and in this case the district court ignored all the evidence of the form community and instead look to rates that had been set in indiana ohio and the like and when you read the decisions he cites those rates were not based on any kind of national fair debt collection practices  market or race they were local rates in indiana and ohio new york city and new york city but they have no bearing on what the market charges for comparable services here in san francisco where the case with  case we just finished the reply briefing on that case but all of them adopt the same what we believe is erroneous standard than a national fair debt collection practices act rate as opposed to what is the ra charged by comparable attorneys for comparable work in this form they all are based on the same mistaken standard in my opinion and there are also rates of course that were in mr bragg the great comparable to the rates he requested such as the death and baucus which was affirmed by this court which is exactly the same kind of case and that that really was the only rate at the time that was in front of judge to undermine the and contradict the reasonableness i believe it was the same to defendant's attorneys with the same evidence is my understanding i wasn't involved in the def involved directly i don't think the trial court discussed any evidence that was i assume that meant it didn't it disregard of the evidence proposed by the defendant the defendant did appeal that and this court affirmed fair debt collection is a fairly specialized area of practice is not i believe so i think cost of living like new york city isn't there an informative comparison that can be made there it's may be informative but but no in no other areas do we look to instill rights practice in any other kind of practices do the courts look to in san francisco in san francisco based litigation look to new york city rates or any other form rates and the rate that that the plaintiffs presented no contrary evidence on new york city rates because they did not believe that was the proper standard but if you look to what new york city rates are for all kinds of comparable litigation which is the  standard they may be very well there may very well be substantial evidence i'm sure there's substantial evidence that attorneys with twenty eight and thirty some odd years of experience charge substantially higher rates than the court awarded here  cases are not complex i think this was a class action that involved discovery of the class it involved an issue that's being litigated in many different forms it is not a simple cookie cutter case now it doesn't compare perhaps to a very complex antitrust case but it's certainly comparison complexity to most district court litigation the fact that the plaintiff's attorneys are experienced in it and have a body of work to rely on only shows that the their expertise can make them more efficient it doesn't show that the case was simple but the class b was never certified know the class relief was the emotion for class sort of occasion was filed at the time the defendants response was do they proffer to rule sixty eight offer which gave relief to the class so there was no need to proceed to class certification because they got full relief for the class the entire class got restitution of the invalid charges and a permanent injunction against this practice based on the rule sixty eight offer john or there isn't time for money yes if i use my time i don't know if you've got thirty minutes left but i think we can we have your argument and so i do want to reserve some time for one i want to mention two other points first and i've alluded to this the standard is cases are entitled to the rates that are charged by comparably qualified attorneys for comparably complex litigation of all types and the reason for that is simple congress wants enacted the f t c ph in order to get private attorneys to take these cases and if they're going to get second class rates for doing them they're not going to take them they are congress intended that they be compensated by the same standards that apply to other lawyers doing other kinds of work and so restricting these cases to f t c c p a rate is a violation of congress intent and my third point is that the district court's disregard for the evidence th plaintiffs presented is also a violation of the standards that have been established in the circuit judge callahan you asked if there was contrary evidence presented but the fact is there was contrary evidence presented here but the district court ignored that it ignored the plaintiff's evidence and it ignored the defendant's evidence and this court it's my understanding that this court and an appellate court should not affirm a decision on that but i think it's well established point if the issue is was there substantial evidence to support a decision that would have been based on the right standard that's not grounds for affirming the decision the judge applied the wrong legal standard the case has to be assessed by the right legal standard not assessed on the on the on the hypothetical that if you had applied the correct legal standard it could be affirmed was it appropriate for the judge to compare pleadings and other election practice cases to determine if there was sort of a similarity pleadings that would indicate less need for creative  production of pleadings i think it's fair to compare other pleadings in other cases and it's fair to complain or other f t c p a decisions but not exclusively and as i said i think comparing the pleading another case and changing the names appropriately but this does not require a great deal of intellectual challenge to prepare the pleadings in case a case b case when all you're doing is changing the names and the amounts of oh well i think there's more to it than that but but even even when lawyers are able to use prior work they say they're in a field of their expertise and because they have a prior body of work they're able to file another case in that same area with much less effort by using their prior pleadings that should be a factor that warrants a higher rate not a lower rate because it's that expertise  intuitive to me if i can prepare pleading in case in two hours and then use it to prepare the pleading in case the fifteen minutes should i be able to charge two hours and all they have not done that your honor absolutely not no one did that in this case no one charge to any time for any work that was done in prior cases what would happen here is perhaps the first time they created this pleading they spent ten hours in this case they were able to do it in two hours or one hour and when you hire a lawyer and if that lawyer has that body of work and that expertise you generally will pay more for that expertise than than you would pay to a lawyer who hadn't done a body work before and had to create it anew so there is from the prior case to this case to consider whether the hours charge for a pleading in this case don't seem slightly padded to reflect more than the they actually spent i mean obviously the judge seems to have determined that seemed to be the situation with a few discrete items with the discovery in the fees but not on that not on the basic pleadings on the merits he did not reduce the hours on the basic pleadings on the merits by much a little bit here and there but it wasn't based on the assumption that the work had been done before but our point is and just to finish up on the rates that the  judge that it was an abuse of discretion to disregard all the evidence that had been presented on rates including the deafen bar ward the two declaration from local attorneys with knowledge of local rapes and awarded each mr aaron to mr bragg point three hours for the fee motion and two hours for a locklear who didn't actually work on the fee motion and i think all this court has to look at is the work that was done here's plaintiff's moving papers here now there's an allegation that a lot of the work was done that a lot of the work was similar to work that have been done before and i think the court might have even used the phrase virtually identical but that's not true if you look at the memorandum at least five pages out of them ever and are unique to this case drafted originally for this case a are sections of the declaration but let's not even go with the initial memorandum then you get the opposition here's the opposition to the female version twenty pages of briefing thirteen page declaration and two volumes in the appendix and then some more briefing included in that in the opposition to the fee motion twenty page memorandum then you get plainest reply and eleven and a half page reply a six page declaration a five page declaration and the trial court awarded plaintiff's counsel point three hours each that's just arbitrary it's just unrealistic it's as clear an error factual errors i can imagine it can't be done and it shouldn't be done no lawyer should spend point three hours dealing with issues like this no lawyer can spend point three hours on the issues that are raised in this opposition and it was punitive and i would think and should not be upheld the the hours that were spent were incredibly modest for the level of work that was required for this fee motion on the original motion mr aaron spent six point eight hours mr bragg spent two point one hours for the entire reply responding to this twenty page memo thirteen page declaration and two volumes of exhibits and more me claim ten hours now i just don't know any competent lawyer who could have spent last and i would certainly expected it to be a lot more but point three hours is just irrational with all due respect and i represent appellee credit international in this appeal i'm sure you have prepared remarks but let me tell you what my area of concern just starting out so that you can i don't see the court rationale for not allowing the travel expenses and travel time that isn't mr johnson entitled to the counsel for choice to represent her at the deposition and i think that the court stretching it to say that you just have to get someone out of town to do something like that and step in and are the circumstances so i've got a problem with that i want would like you to address that well i think the court's position was that there was a possibility  alternatives one was that mr aarons could represent ms johnson mr aarons was there some evidence in the record that he had health problems right and i think that he did have health problems although i don't know how long those health problems lasted but this was raised on in the opposition it was not addressed in the reply brief at all and i think that under those circumstances  rated arguments on appeal shoot should be waived are you saying they raised for the first time on appeal i mean yes they argued that they were entitled to certain hours in their with previously and we identified i think there are three identified when you hire someone white why you know i'm so why should the court just step in and say ok well there's someone else in town that could do it so i expect you to do that because that would save money you know i mean that's gone a little far i mean let's say someone hired mr alice or hired you and they said well you know there's someone else in town that can go and appear for you when your clients didn't hire that person and i agree your hon then it seems to me if you the problem here is because the local rule requires you hire a local attorney if it's a local rules and not require that add on expense as a mandatory condition of practicing in front of this court you wouldn't have any argument at all would you well i think there's a again i think there's a couple of issues that make these circumstances a little different first of all there was no local attorney there was no attorney that lived in california that was representing miss johnson mr aarons lives in seattle mr mr bragg lives in illinois so who does who does she get to defend her deposition we would argue that mr aarons should why because he's closer because he appeared at all the hearings because he typically defends all of his nice if you want to run her litigation but i think that's exactly the reason that people go hire lawyers particularly other stages and run it in particular defend your own definition i mean you may say there are some for convenience minor parties that's an argument but it's hard to sort of say that the client doesn't entitle to your attorney  just that we can discount because the court believes is somebody else should have defended it have positions i don't believe there are there's there's a case that goes either way actually i believe that there are cases that talk case entirely but here you just said no you don't get any of that at all because someone else could have defended the deposition offering the question and then you can respond with where you're coming from it seems to me that attorneys rights are supposed to be set on a case by case basis and that an argument could be made that you're advocating that there is and there should be a national right for fair debt collection cases and if if that's what you're advocating doesn't arguing for a national rate violate the principles of setting a lodestar and adjusting it using the current factors and i think that the representation that defend defendants or police are arguing that where we're advocating a national rate is inaccurate i believe that one of the things we did was show cases w similar services and what the rates were in those cases they were across the nation they were in areas where they have similar hourly rates such as new york city and they were in other areas in which arguably the rates could be slightly lower back in the midwest we are not arguing for a national rate or even for an f t c p a a rate you know thank you tendered evidence that there was a going market rate in this area right i'm sorry didn't you tender some evidence that the prevailing market rate here was two we did your honor so how can the district court have concluded that there was no prevailing market rate and you tendered evidence that there was a local rate they  d evidence and they just got me to finding there's no local market right well one of the record supports that factual finding well i think the courts representation that there wasn't any market rate had to do with the fact that there's no rate in which  plaintiffs would pay a plaintiff's attorney in this kind of case that there are there are no plaintiffs that are paying hourly rates i think that's where the court was coming from our our  well i think actually your honor that we were the only people the only side that tendered a market rate i think the court's definition of market rate is a rate that's actually made by the client our evidence was that in our representation of defendants and in our our firms and our office these representations of client so the market rate that we were able to obtain for the services involved would be in the range of two hundred to two hundred fifty dollars the evidence submitted by plaintiffs by appellants was not that of a market rate but rather it was evidence that fees have trying to say you were trying to argue that ok because this is what we get paid then that's what plaintiff should be paying exactly exactly under how much you've been paid in this case yes and how much was that the total are hourly rate was i know your hourly rate but how much families are paid in this case that evidence wasn't before the court it's not something we submitted and i don't know it off the top of my head your honor there are lots of cases that talk about the fact that the total fees that are built from one side to the other are not relevant to what the fees are built on the other side of the v because there are different motivations there are different tasks involved in this case take the motion for attorneys fees plaintiffs filed an opposite or brief in reply brief we f opposition so you know how many hours you know or the hours we spend comparable with the hours that plaintiff spent i would argue just asked where that was on the record i was on it actually wasn't court on appellant side was the declarations of two counsel that said our rates are reasonable plaintiff's counsel declaration of two quote unquote expert witnesses which said that based on their skills and their experience the hourly rate was reasonable in fact the rubric for determining hourly rate has three prongs to it and i think the think will stein  decision really analyze those issues very clearly but the issues were that the rubric in the same community similar services and comparable skill experience and reputation the evidence that plaintiffs submitted was void of anything that related what that evidence was to whether the services provided were similar but that's court that defendant submitted and i can personally testify to the fact that the evidence was completely different that the declaration that was submitted by defendants in this case was not submitted in the in the different case rely primarily on two different well three different things one was the declarations of mr errington mr bragg which are virtually the same admittedly the second thing was a decision in a case called irwin v mascot a few decision in which the court awarded four hundred right around four hundred dollars an hour that wasn't unopposed to be application after settlement i would present to the court that that's not first even persuasive and the third thing the court relied on a different bow were a couple of decisions which discussed an hourly rate the decisions in the cases that different battle relied upon discussed cases involving lengthy litigation over years involving thousands of hours the services provided in those cases were not similar to the end up you know i haven't decided i'm going to the scientists at least vote on the can share but that's what troubles me well i think if you look at the decision as a whole i mean the court has clearly analyzed all  submitted to the court and despite the fact that there was an oral argument i think everybody agrees that the briefing was very extensive in this matter court had in front of it tell us i come back on the same kind of took this a couple of times gave them more a longer explanation or not there just when they asked was it quite asked to give a longer explanation after its first explanation or now no i don't think ok but the first several pages you know goes through the history of the case it's clear that the court has read the da i don't doubt that it gets to the hourly rate issue it says there's no prevailing market rate i eat there's no  evidence that plaintive pays some hourly rate anywhere in the in the information and then goes on to say that the what i think the court is saying is that the evidence before the court indicates that the prevailing rates should market rate given the similar services and all of the information all of the evidence is in the range of you know two hundred to fifty and and gosh there's case law that says district court cases that says that this is about right in similar types of cases including a decision on the southern district of new york new york city and in light of the fact that san francisco has higher rates than some of the other areas we're going to go with the higher end of that i don't believe that the courts analysis indicates that it was looking at a national rate i don't believe that it so now it's this indicates that it's looking at an f d c p a rate i don't believe that it was looking at an average and and on the facts that are used to develop that national right but i think that justice callahan correctly noted that there are a lot of cases in california in san francisco which hourly rates have been in the range of two hundred to two hundred fifty dollars an hour for similar services cases and the evidence before this court the underlying district court included a citation to a case called yahoo in which the court awarded one hundred ninety dollars clearly supports a finding somewhere in the range of two hundred to two hundred fifty dollars an hour at least two hundred fifty dollars an hour is clearly support i think that the focus of the court and it's quite interesting there's not any opinions that really focus on the this issue of similar services i mean i think that the court really needs to look at this issue do we pay four hundred five hundred dollars an hour to do simple cases non complex cases and despite the fact that this was f class discovery that was conducted in this case was in which there was any reste you know stuff that you have response before certification was how many people in the class again this is not a complex case this is not a defended lasted numerous hears here we're looking at a case where the state of the law is established you know the services that were provided were minimal and simplistic and not of this point one time i cannot time but only if you challenge them yet actually your honor we did we actually extensively looked at the hours and pointed out to the court where we believe there were over just in many different areas don't some some people do chorus which i think is excessive but i've never seen an opinion on which the point one incremental time period has been challenging for generally i think the courts i think the courts problem with the point one billing form of the deposition document open the document on the computer type in the case caption you know down to prepare a fax that says to jim call me in from ran bragg deposition no there's putting out a fax machine and fastening it i think the courts concern was that first of all that actual activity should really have been included in the prepared deposition notice one minute did preparing the deposition that is take forty nine minutes faxing take another minute and therefore the whole thing took fifteen minutes which is point nine but if you broke it down into two separate ta carefully but i think one of the calculations was thirty six nine hours to prepare in iraq the tories which i would find extraordinarily you'd have to have the court was concerned about using an arbitration of the case for still thirty minutes to prepare a draft that s even even printing it out sometimes would take a great deal of time on that so i think if the court looks back at excerpts of records and supplement i sorts of records and looks at the discovery requ comparison with discovery requests that were issued very similar sure but i mean see that it's a duplications that in fact there was a change in the caption and the thirty six minutes was for purposes of reviewing that to make sure that the names were changed to reflect that and i've argued as you know it's not so i think the court second concern when it talked about the point one hours was that there was a ministry to have and clerical time that was being pushed into the entries so i think that when it looked at the fact that there were sixteen point one entries and that many of these tasks appeared to be related to another or they were clerical entries that the five hour reduction that the court may need reflected not only five hours with respect to the point one hour entries but the constant that the final remarks you'd like to make you know your honor i would i have basically concluded my final remarks that i think that the court really needs to look at the similarity of services provided in looking at what is a reasonable hourly rate the representation in the declarations that it's a complex case and complex cases get somewhere between four five hundred dollars an hour or more doesn't really address whether this case in the services that were provided in this case ri very briefly your honor i want to get back to the hourly rates issue first what defendant has said just brings to bring to the fore the point i made earlier about the proper standard of review they are arguing that if the district court had considered these done their decisions that were in the record it could have supported its decision but it didn't rely on those and we've had no opportunity to brief the relevance of say the yahoo case which was based on an entirely different standard than has ever been appl if it had applied the right standards there might have been some evidence to support it i'm very much in favor of what what defendants said in terms of examining similar services that is the standard that's the standard congress intended but not just similar f ph services but similar services of all kinds and what the trial district court did here was not to examine civil or similar services if you look for example at the new york case it's cited that was an individual action that settled immediately with and with the rule sixty eight offer no class certification no class relief no discovery no nothing one of the other cases the district court cited i believe the in the end of case was also an individual case not a class action so they weren't similar services and as i said the courts in those cases looked to what the local rates were they didn't look to a national rate they looked to what was charged in indiana or heil for comparable services legally i think the difficulty that in this particular case is you know i accept the fact that you may charge a premium for specialized services but let's just take the deposition notice that's not a specialized service and there were there was no sometimes people submit sliding rates as i recognize that point your honor and but there's two points here one is playing his counsel did exercise billing judgment there's many hours that they did not charge for in the exercise of billing judgments and then throw in the kitchen sink and second it's just the nature of the practice that sometimes experience the tourney's particularly attorneys who don't work in large law firms are going to do things that don't require their highest level of expertise they generally do not alter their rate and i would refer the court on that point to the fee motion and if you look at mr bragg's fee entries most part of his time the point once that they complain about were spent instructing his law clerk and or an associates to do the work and when they did the work that work wasn't claimed so i think they did after size and if occasionally possible that on the point one way they think a map and there were so many of them that the court just didn't believe that you know thought that hey that was already taken care of and he said the bells and just didn't believe it is that possible i don't think so if you look at the point once they're all legitimate compensable work and you know the problem with the point what the court saying about the plant once he didn't find them credible because there were so many of them right so how do we how do we jump over that well i don't i think the fact that there are a lot of point ones doesn't it just can't make a deck or a time record not credible unless you look at the work and it's not credible just the fact that you use point once there's no other way to keep time that's what everybody does and i would like to give you one example of the point ones because i think without almost  exception if you look at all the point ones and they are compensable work in the problem is if you lump them in with the other entries on the same day then a defendant comes back and complains about block billing which is what wel one to get that assignment that's a perfectly legitimate compensable activity the last activity review letter from june coleman re attorneys fees e mail comments to paul aaron's point one he didn't break that up into point reviewing in point one to say and if mr bragg was abusing the system and that's the kind of abuse that sometimes occurs that's what he would have done he would have broken it up into two entries there was nothing objectionable about these point once it's the only way you can record compensable time that doesn't take that takes up to six minutes so i thought how do you deal with the defense argument that really there is no market same issue that occurs in all different kinds of public interest law civil rights and forstmann it is exactly the situation that pertain for example in the blonde persistence and case the seminal decision on hourly rates these were legal aid attorneys clients can't pay them for that kind of work when congress and acted the fair debt collection protection act it knew that the plaintiffs in those cases were not going to be paying could not afford to pay market rates for the kind of legal issues that were going to have to be litigated the stakes just don't warrant there's a thousand dollar penalty maybe there's you know a thousand dollar maximum statutory damages even if the clients could afford it there aren't lawyer they're not going to pay lawyers their market rate to do that but congress said we want private lawyers to enforce this so we're going to give them the rates that other attorneys get for doing comparable litigation and that's repeated repeatedly established for the fair debt collection practic consumer area in a case called seem are versus platte valley it's well established in there are known circuit court cases that i'm aware of that dispute that proposition that congress intended fair debt collection practices act lawyers to be paid by the rates that are paid to other lawyers for doing comparably complex work because there is no real market we can see that there aren't people out there paying plaintiff's lawyers to do fair debt collection practices act capes so and what all these cases have said is if the purpose of the statute is to work we have to pay these lawyers the same that they get from commercial clients who do pay market rates and that's why the system works and if it's if assume that neither you believe this is a subtle case true