desk that said thou shall not grant summary judgment and it seemed odd to me because there is a rule for them but i think this is probably a pretty good case why i thought that admonition was on the front of his desk and i'd like to know exactly all of the work that had gone on in preparation of the winston case before the court became a class action or williamson became a member of the class action case and that's discovery that's discussed in the fear agreement of december twenty eighth two thousand and  the negotiation for having this plaintiff become a member of the class i become a class representative and unfortunately none of that is in this record because there was no record now in the class action case itself there was partly the freedom lies hours were added as part of the hundred forty two i think was one hundred forty three point six hours in the class action case but i think the distinction here is because you know obviously the i wasn't involved in the case at that point but here but from what i can determine it looked as though many motions for allocation of attorney says have been filed both in front of judge moore wiki and then ultimately in front of judge talk and multiple responses multiple replies is probably in this record third of each l two monthly it looks like it gets up and it's in front of judge hall who probably i could see as a matter of organization wanted to write some of the slate clean and say look i want to petition i want an answer and then when we look at the jurors there's a decision that we're going to resolve this by summary judgment and there's a summary judgment by the choice side in this is there's a cross motion for summary judgment by the this is january fourteenth two thousand and ten so this is the order that looks like it's going to be right before all of this happens and it reads that coming before the court on price's motion to enforce the williamson council feet sharing response to the respondent so then file or apply in the matter set for status hearing march fifteenth so i can i guess candidly that i can't you know honestly say that there's an order that says now shalt filed motions for summary judgment nevertheless they did  i think i think the questioning i think that there was an argument made by the joyce side but there's a waiver when parties each filed motions for summary judgment that has some waiver that the issue should be or can be or must be decided by some throat not ok so busy ok so that takes us to the question of where how this was done now if we take a next step which is what's the quickest standard of review the one argument is it's an abuse of discretion of the joyce's motion for summary judgment reads choice in patches or not seeking summary judgment on the basis of any factual issue they concede that there is disputed issues of fact as to whether there was a fee sharing green for the parties now being the one to say that in a class action such as this your words must be based substantially on the services rendered by the attorneys who actually created preserve the fine that's the agent orange argument that is not the law of the state judgment should not have been that it is it and more is itself from the facts the facts in this case is that the parties the three lawyers on one side in the three lawyers on the other side the daniels lawyer the williamson lawyers entered into a written agreement and had a written agreement but we're not writing on a clean slate here that would agree it was litigated in front of two federal district courts and an arbitration award in georgia which was affirmed by the georgia federal court to interpret what it said so we know what it said ok and we know  style banger versus a on reference to bafta for the commencement of a similar class action on williamson's behalf now the theory issue becomes how do they get paid for that as opposed to how do they get paid for their loads there and that was the subject of that memo style of the litigation which was paragraph three of that agreement and it said in consideration for the services performed by williamson counsel connection with preparing the way in some case not in connection fees now i would argue that's a fishing agreement in which the williamson council paid or set aside two point eight five million dollars off the top without any consideration of what their relative contribution was to the class action case at all then the agreement goes on to state that they will then they'll be part of the executive committee so if this is a referral contract and under illinois rules of professional conduct even in referral contracts the must be some retention of responsibility that is covered by paragraph five of the agreement same iraq as members of the executive committee and sh filed a motion seeking thirty five percent of the entire fee for him selfe in the chicago court the new york lawyers moved immediately for declaratory judgment a federal district court in new york everybody was sued all the parties were brought into it because their argument joyce his argument was i didn't get enough money ok i guess we can all agree on that much what he wanted what they wanted is they wanted their lodestar most apply air applied to the eighty five percent of the faith so they went in and said no we get not simply three three thirty four hundred dollars times hourly rate but we also get an enhanced made of that by the multiplier that's what how they get they said they get more that's what became the subject of the litigation in that case do they get that that second component of their compensation the first component is essential of the referral fee and the second component that's the fifteen percent off the top and the second component is their court wanted to apply proportionality to the eighty three to fifteen percent to two point five million dollars it would then have to say ok if that's the law and we don't agree to this but it under the even if that were the case what were then to happen is the court would have to take those relative hours and apply them to the two point eight five million dollars and under that scenario you do the math which i did last night it's ninety nine thousand nine hundred sixty eight dollars go to percent but fifteen percent to two point eight five million dollars ok must now be apportioned according to our relative lone star from the class action case and then applied that which they don't even do because as it turns out catch enjoys take the whole two point eight five million so we have that completely inconsistent applications of the same law to each component of this feat which is what makes it first  let's let's take that argument ok let's say that our burden was to prove the lead's that we had done something to the benefit of even though the two point five million dollars wasn't paid for any of that the two point eight five was completely unrelated to the fund of the class the interesting thing about agent orange is it applies an analysis not only to the award of fees but to the allocation of face and what it found wrong in agent orange was that they were investor lawyers ok that's not the case here but the problem with it is is that if you say you can take a percentage of the front which is what church in the work you do when you can take fifty percent of the fund so we never get to the  judgment has fronted the issue saying we all have disagreements on the facts by the way i've completely lost track of the thing here i don't know what i got left and then it says iraq must be road style when it's not the law of illinois ok it applies eight common benefit feel word by the trial or a fee of one hundred fifty thousand dollars when they had needed they took the position in their papers and there the petition that they filed that they weren't seeking the fee based on any work they did that enhanced created or preserve the common benefit fund that was generated in this case it's undisputed with us as there was no fict later after the joyce from spent almost four thousand hours with a lodestar of one point eight million dollars and settle the case they showed up and said we want one hundred fifty thousand dollars so this case doesn't have anything to do with what they did because they said we're not seeking a fee based on what we did we're seeking a fee based on a letter agreement that they say gives them a right to some fee whether the first problem with the letter agreement it was a group an agreement between six different firms it was an agreement with mr rice alone in his firm and it says nothing about what mr weiss a share of the fee would be it talks about a sharing of fees collectively among the six firms that wound up prosecuting the case the letter agreement we always took the position that the letter regardless of what the lawyers say in a letter agreement because it's a class action case the law's absolutely clear it's had an chain change that all in a class action cases not a contingent fee case where the lawyers in the clients carve up the fee and decide who gets what in a class action case it's different you create a pot of money for a bunch of unnamed class members and then the court's responsible for taking that pot of are the lawyers that create preserve one hance the fund that the money's coming out of you can't show up six years later and say i want to money out of that pot simply because i was there five years earlier he's here to make any feed remit they want but they have to bring that to the judge and then the judge has to decide ok should i enforce this agreement or not and the lot is not only in common fun cases with that as mentioned under rule one point five any sharing of fees has to be reasonable and it has to be based on the work you've done you have done to create the so what happened here and that was our position in the trial court which is said judge whether you look at the kind of the law common fund cases or you look at the rule of professional conduct one point five it all comes down to the same issue what work did you do that would entitle you to a share of these fees and that's the that's the issue that as you can see from the transcript that the judge referral fee agreement in this case there are the letter agreements specifically says if you get the fifteen percent if you find a client williamson he is joined in the case and more importantly he certified as a class representative which is it major major undertaking in any class action is usually when the case is settled is of a class a certified then the park parties as happened in this case there was a lot of motion practice but ultimately when the case was counsel suggests that negotiating a fee agreement is some work that they did on behalf of the class it's nothing to do with a class they can't come into a class action said we negotiated a side agreement with these lawyers want to be paid for negotiating this idea that if that's what he's talking about  motion type issue this is a fee petition if you petitions are typically decided by the trial work on the filing of a petition by somebody with an affidavit and the other side either objects to it and if there's a fundamental issue about the reasonable talked about it that that's the way this should be resolved because there is no dispute about i don't know what facts are talking about are in dispute there is no dispute about the work they did the agreement says what it says the letter agreement is which is what they relied and it says what it says there is no  all this other than ancillary litigation about what the letter remit meant that was all people titian somebody can object to it if there's somebody says there's a there's a need for a hearing the court has a hearing but and that's that's what happened in this case they never came before the trial courts if we have to have an evidentiary hearing you can't  court and say i did this work enhanced this benefit to the class therefore out of the class fund i should get a fee so whether it's a joint venture whether two or focal of which are made these private agreements lawyers get all worked up about these private agreements but the bottom line is yes there was a request for evidence or hearing this tonight it's in the record and cited in the briefs secondly the argument is that this common fund doctrine trumps the private fishery agreement well if that were the case then what is the justification for two point eight five million dollars treatment no one established that they had any hours to support the two point eight five million dollars that was paid to this group off