before mr sanford i couldn't see you i still can't see you but i can hear you so i can see that he's he's got video you want to talk to that maybe he'll pop up on your screen is th sometimes it does sometimes it doesn't well said may please the court my name is josh savored appearing on behalf of the pellets at its core this case is about the district court's interference with what this court has said in barbie vs big reverse deal is an unconditional right the parties right to settle attorney's fees because the district court's authority if any extended only to a determination of whether the marriage settlement was satisfactory it had no jurisdiction to review or to alter or to disregard the parties mutually agreed settlement of attorney's fees since barbie is good law there can be no question that the district court erred when it dismantled a freely negotiated fee agreement that was wholly disconnected from a wage settlement the amount of which wage settlement the court found to be reasonable i'm here today asking the court to reaffirm the principles in bharti and to clarify them for the benefit of district courts that may have struggled to apply those principles because the issue of whether trial courts should review f l s a cases and the settlements of them is not before the court in this case our arguments today d assume that some level of review is required but that review extends no further than the statute mandates when the event if courts are reviewing f l s f l as they settlements the only reason to do so is to confirm that plaintiff's wage rights under the f l us today are being protected by the district court's interpretation of barbie and purported reliance on barbie was misguided and muddled improperly turning a footnote into a mandate and distorting what this court clearly stated throughout party that a  can determine whether the fees were negotiated separately yes without regard to this is what he claimed yes and the court below did that and confirmed that fact by approving the same liability amounts from the march th motion that it later approved in the july motion barbie's holding is that the f s a does not require approval of settled attorneys and that the district court's authority did not extend beyond concluding that the marriage settlement was satisfactory these holdings are unambiguous and moreover were unambiguous lee violated by the district court's actions in this can be far from requiring the court's actions in this case positively prohibits them barbee does not permit a court to review attorney billing where the parties have sufficed provided sufficient information for the court to determine that the recovery to the employees is fair and consistent with the f l as army does not permit a court to insist that the parties limit agreed fees to act will billing and barbie does not permit court to become an advocate for the defendant lowering the amount of fees that the defendant will pay plaintiffs counsel despite already finding that the settlement of the wage liability controversy before the court is fair mistook barbie's holding to mean that fees must be negotiated separately and that attorneys fees must be negotiated only after a liability settlement is reached this is not only incorrect but it creates an unworkable burden on the parties which ignores the reality of settlement negotiations and acts to suppress those negotiations altogether the determination of fairness that barbie contemplates can and should be done without any review of attorneys fees separately negotiated d or not there is no reasonable interpretation of rb under which the district court should have required the parties to request approval of the wage settlement in the attorney's fees settlement in separate filings and then substitute its own judgment for the parties previously agreed attorneys the court was presented with the finalized wages liability settlement numbers on march  th the court's only authority at that time under barbie was to determine whether that liability settlement was fair and reasonable the court instead focused solely on the settlement fees only later approving and identical wage liability d settlement for the plaintiffs after it had dismantled the party's agreement on fees this is reversible error similar to the lower instructions to the lower court in bar b this court should vacate the lower court's orders denying approval of the settlement based on the rejection of the settled attorney's fees allowing the court's later approval of the wage liability settlement to stand and the party settlement agreement as submitted to the court on march th to become fully operational including the parties agreement as to attorneys fees and costs which do not need judicial approval to be binding limited i do want to point out one clarification for use just make sure we're all clear i believe that the district court in issuing its st order on the parties joint motions were of eun fees are negotiated separately and without regard to the class wages i believe that's the critical issue of this of this particular case the court found that we did not negotiate those separately and it's reasoning for doing so set forth in its multiple law is fairly clear the th circuit has not decided to leave to this day whether a court is required to review a settlement agreement at arm's length between artie's represented by counsel and federal leg ation in order to enforce a release of f l s a claims and obviously there's a lot of worry among the circuits and that's well detailed and several opinions as long as there's a question from the employer's perspective you mean judicial approval i can tell you from experience there's plenty of authority well there's a split of opinion among district court judges here in arkansas as to where the courts need to do that or not and so already were a little bit on a case by case basis in this case we did submit it to the judge to dischord judge for review no provable and again if it did we continued that the fees were separately negotiated because we did set out in our motion the basis for which are based on time records and sufficient data we believe the amount the justifications is liquidated damages and then a separate attorney's fee as this court said barby versus big river still it is important that the parties are able to freely negotiate if there is no tether between the attorneys fees and the class damages and again i'm not going to reiterate the district court's findings those are before you all d in some detail i do think that the following big river steel there is a little bit of again a practitioner's concern that i think mr sanford alluded to it briefly but if there is the requirement of a temporal break between coming to an agreement on the terms for the class damages and a collective action on the illicit at those must be agreed in full and as a practical matter what what we are doing to ensure compliance with vigor are still going forward is filing a notice and a request for approval before we ever even begin to go shipping fees what that standard will has done is it will require employers to agree on a matter of fact wages without knowing how much it's going to ultimately pay and some some businesses may be able to have more flexibility than others obviously large and small businesses alike are held to the same standard and so asking an employer to come to terms on a class award without knowing how much it's going jurisdiction to review thirty and the reasonable list of the fear of you is mandated by statute to sixteen be the nd to sixteen b states on the face of the statute that an employer in addition to the wages shall  a reasonable fee it doesn't say any amount it takes to resolve the case is a reasonable fee and this court in a few places dollar was one dollar reasonable i did we did not really research are you saying the uncertainty in the law is what is the meaning of separately so your order sept separately and without regard to you without further clarification up late and with what position do we had we believe we had negotiated them separately and the court found otherwise and so that if the court found such it would have had jurisdiction to review the reasonableness of the attorney's fees now one other important aspect and i want to make sure to believe that the district court is correct that separated needs temporal separation rather than just the two numbers are negotiated separately and distinctly  know believe the court ever said there needs to be a temporal disconnection well but that is not really implicit in what they're doing though because you're saying what you never negotiated separately because it kind of came to the same document at the end  claim and you come up with two separate numbers and is that separately negotiate a suppose that was still be left to a case by case basis such as where they're resilient just minutes to the class damages depending upon how far of an internist the negotiations are just so if i think we're all in agreement i believe in the case was clear the purposes of the f s a are clear the review is designed to protect the workers the workers rights and and that's amount in the pool for workers isn't diminished the mother goes to the turn to be in that set out in the river still pretty out northern as a practical matter then i understand your concern from the employer's perspective that you want a total number before you agree to a settlement you're on easy about agreeing to a liability settlement without knowing what might happen on the fees but on the other side the concern is that the plaintiff's lawyers have a conflict of interest when they're negotiating at the same time for the fees and the employees and there's this concern that money that could or should be gone to the employees goes to the attorneys in an amount that exceeds the amount they've earned so you have a practical suggestion on how to accommodate both concerns to be very cautious giving suggestion to this body but you're saying it's a practical problem for your client not to be able to settle the whole thing and and so i think you're in a position to give suggestion yes your honor what it really comes down to is the concern we have on the employer's side in negotiating these types of settlements is if we come to a full agreement whether we then not knowing how much the court will approve or scuttling the settlement that on the terms of the plan is and have to continue with litigation which is costly and you know may result and the same result down the road so from a practical perspective i think that  the ability to separately review the amount that of the total settlement is does provide employers with more you know concrete understanding of what its obligations  going to be it gives it more latitude to the parties to settle because there are things that could be done in settlement such as you know the stretching out payments rather than a lump sum because if the petition for fees is and i see my time is up i'll just wrap up shortly if a petition is filed and no one award is granted by district court then an employer has thirty days to pay the full marrow and that's a very very cumbersome issue for especially small business and thank you mr norwood yes thank you your honor i would like to propose a bright line rule for what the word separately means in the context of an f l a say settlement negotiation separate means any itemized attorney fee award meaning anything that is not a percentage of a common fund it's a separate negotiation of fees is one dollar in which a dollar taken away from the plaintiffs does not lead to a dollar and i'm sorry a dollar taken away from the plaintiff's attorney does not lead to a dollar added to the plaintiff's fun if they are itemized they are separate the notion that separate means to orally separate and subsequent is unworkable as mr northern very ably detail it's unfair to employers in many circumstances it does not lead to the expeditious settlement of these cases and the reason that the courts have a rule guard against the conflict of interest on the part of plaintiff's counsel to put more money in the attorney pocket and less money in the employee bucket fantastic question you cuz you're saying as long as you have them itemized you satisfied the separate negotiation role but it could be that the negotiation was infected by your conflict of interest and you put more in the attorney item then in the employee i am yes and this court already has solved that problem with its holding in bar b which is that if settlement  agreements are reviewed they are reviewed to make certain that the number going to the plaintiffs is a fair and reasonable compromise of a bona fide dispute it really is immaterial how much a plaintiff's lawyer gets if the court determines that the amount to the plaintive is fair so hot why is that the case what if what if the plaintiff's employees could have obtained even more if the attorneys had only taken the amount that they'd earned but the defendant was willing to pay the total lump sum and so more could have been allocated to the employees i think an analysis by the trial court that delves into that sort of speculation is always going to lead it astray from the standard that set out in bari which is that the concern is for d whether the merits settlement meaning the amount going to the plaintiffs is a fair and reasonable compromise of their entitlements under the  statute it may be that a a certain level i say claim has a one thousand dollars of potential value at trial it might take two hundred dollars of attorney work to get that amount recovered or it might take twenty thousand dollars of attorney work it's not for the courts to bother themselves with that aspect of it but whether to determine was the one thousand dollars that went to the plaintiff the correct amount or  you know a reasonable compromise of a correct amount based on a good faith dispute about whether the f l us a pretext a certain claim