good afternoon may please the court that i'm greg kirchner on behalf of the national collegiate athletic association i'd like to reserve ten minutes for rebuttal if i may i'd like to begin by saying something that sin number of the cases and that is if you seek a bundle and you get a pittance that it must be reflected in any subsequent feel ward that concept that any field ward must be commensurate award if any must be commensurate with the results of the litigation is embodied in the supreme court decisions and in the opinion after opinion in this court so then the question becomes did the plaintiffs here get less than they sought and the answer to that as they concede in their brief is clearly yes they got considerably less than they sought to bending we can disagree about how much less but they got considerably less and that is the first error of law and perhaps the most fundamental one committed by the district court the district court contrary to the principle of that must be commensurate laid down by the supreme court in hensley instead adopted an all or nothing winner take all game of thrones approach to feel wards no middle ground those are all concepts that appeared in the in the lower court record all of which are inconsistent so these plaintiffs who set out to revolutionize  intercollegiate sports and failed who set out to accomplish all sorts of things and failed in item after item which i can detail achieved one small narrow subsequent litigation back and forth judge wilkins on other matters yes that's correct and you won't be arguing as to whether the n c a a is subject to the n i trust laws will you it may vary by the restraint or the rule in question will be are you as to what the scope of the n i trust laws are but you won't be arguing as to whether the end of trust laws apply to the n c a a so certainly the noncommercial argument will not be made in that case i don't believe i've you know that  t with all respect that is not the test the test is not whether that that was that was a preliminary issue that had to be resolved and was resolved by our court that was a preliminary question which that you argued in the last case absolutely correct and it was that one was that wasn't a very important holding because the n c a a had not been subjected to the i trust laws before you argued that you weren't subject to them we decided that you were law resolved against the n c a a by this panel in that but the test is what benefit was the sheaves for the plaintiffs what relief in the hole in the real world so the test is relief and not whether the case is noteworthy as a matter of law not whether it's interesting to readers of the sports pages now whether it's even interesting to lawyers the test is what if fact in the real world what material benefit was delivered by the case to the named plain of sore members of the class and that is the real test here and that is the test they fail never but i'm getting i little ahead of myself and that is that that i still want to make the point that the important fundamental initial question is that the relief in terms of feel ward must be commensurate with the relief obtained for the named plaintiffs or members of the class by the litigation by the outcome of the litigation and it can't be all or nothing and what happened in the lower court which judge wealth and approved was forty two million dollars which was nearly everything they asked for and that violates the rule of hence lee and all or the other cases the there's some some related but similar violations and errors of law and that is the the district court said well let me stop you there so what if if your principle is correct that it's got to be commensurate so what what principle do we apply here that they don't get anything so we have argued and that they are entitled to nothing a court you could disagree with me on that in which case they then have to get a much reduced amount but what principle of proportionality are komisar ability do we apply here the cases are sort of all over the map on that and some of them use a percentage approach some answering that question the case had two distinct facets one was the pre teen and thirteen litigation which involved former student athletes led by mr o'bannon and others who thought that their name image and likeness had been used in video games and in the after market after they left college and exhausted their eligibility we litigated that case for over three years when the plaintiffs moved for class certification they abruptly changed their theory of the case and they sought to certify a class and to assert a theory that attacked amateurism had not prior that they amateurism was was not a defense because we weren't talking about amateurs we're talking about people who are out of school they then switched to from former student athletes to current student athletes and we then litigated that starting in july of two thousand and thirteen through the end of the trial  and so all of the work in that first three year period came to naught there was no relief awarded to anyone in that first three year period no named plaintiff no class member no former student athlete got anything out of this litigation so that's about half of their time that's about half of their forty two million dollars attributable to that time period we say this you get nothing for that so that leaves about twenty one million dollars of that we think it should be further reduced by the time spent litigating against e t a and c l c there was a partial reduction made by judge will can on that but  needs to be reduced by about another six million for for that time because that was independent of the litigation against the n c a a and furthermore it was so i thought that the plaintiffs had made some adjustments for the  but there were all whole bunch of additional time entries that reflected c l c and a work which was mixed together because of block billing to the so you couldn't separate it out and judge will can make no reduction for those  and so we think that should come out we think block billing should come out because it makes it impossible to do the allocation and that's about fifty percent of their total so that gets you down to about  seven million dollars between six and seven million dollars and i would argue for zero but certainly if you were to apply a commensurate test that would be one way of getting there so you're pretty much all or nothing as well so dissented in part was that a a very narrow injunction involving and i l was the was the outcome and all it says is that the a may not prohibit its schools from offering student athletes or prospective student athletes some form of compensation or a scholarship for the use of their and i and for which we thank you and but the end i held the injunction that remained is exceedingly narrow and so if we get back to just by his question what principle if we're just looking at the degree of success what what principle of proportionality should we apply what you argued before was you have to discount eliminate certain blocks of certain components of the or but i gather your argument now is more of a argument and you're right that i'm i am arguing in the alternative here is that is that and i l injunction is actually not worth anything it is worth nothing in the real world there is no person who's alive or ever been alive or so far as we know will be alive who will benefit from that injunction because the there are no sales have been aisles that we know of the plaintiffs made no effort to put any record together to show that there were sales or licenses of and i also in this court's opinion on the merits the only evidence that was cited and in judge wilkins opinions the only evidence was that e a the video game manufacturer testified that they might be interested in offering student athletes licenses for the use of their and i l's in the future if they ever made a game again in the future but they don't have licenses from the schools or the n c a a so they can't make a game so there are no transactions in and i l's so far as we know involving current student athletes now there are transactions commercial transactions in the post collegiate world for an aisles where people sell their name image likeness rights chevrolet and there was a lawsuit about it that those are real transactions but there are no and i all transactions that we know of relating to student athletes and  one way that we know that it's important is if we look at the timeline commensurate test and instead adopted an impermissible all or nothing test is that after this court reversed in substantial part at the the five thousand dollar  eferred payout the district court the field ward motion was pending before the district court when when your opinion came down and the same decision they didn't adjust for it the same award was made and so we know it was not proportionate because the relief changed dramatically and yet the award stayed the same at the at the substantially all of it so we know that that that that just doesn't pass the common sense test furthermore the change made by the n c a a which was consistent with its prior practice of allowing compensation as the as the court saw scholarships as we see it u judge wilkins opinion came down the next day on august eighth we certainly didn't know when it was going to be handed down and they were in a fact during the time that this court considered  appeal and the injunctions were sayed so the injunction by the time it took a fact in december of two thousand and fifteen the the new scholarships were already well in effect had been underway for a long period of time and nothing happened there was no promise to keep in effect was there i'm sorry i'm sorry my understanding is because this was a matter of conversation between judge by the particularly that the n that anyone at the n c a a is trying to change the rule but i should point out this court in its opinion said and it quoted the district court on this point that the n c a a could rescind the rule and go back from c e o a to g i a so long as it didn't prohibit people from offering and i l revenues to fill that gap i mean there's no evidence that either any of those things are ever going to happen or have ever happened bigger schools have more money they they pay c o a now the smaller schools are still at the old g i a that's their right that's their option and so despite that despite the fact that there are still many student athletes with gaps plaintiffs chose to put no evidence ian about and i als in the real world i like to think of them as as as mythical creatures they're like yetis bearing bitcoins they just don't exist no one's ever seen question we still don't know if they do so i think i'm at the end of event part of my time yes very good obvious or frank you have about three minutes and thirty seconds for  please the court jonathan massey for the plaintiffs in this case and i'd like to begin with this court's two thousand and fifteen decision which described this case as momentous and said that the result obtained by the plaintiffs quote is the first by any federal court told that any aspect of the n c double a's amateurism rules violate the any trust laws let alone to mandate by injunction the s and c double a change its policies every previous challenge to the n c double a had failed usually on motion under the compensation remedy on appeal by the time the district court had awarded fees this court had already ruled so it e r excerpts of record ten the district court considered the elimination of the deferred compensation remedy and said nonetheless the plaintiffs had achieved an excellent result and i think no matter what test you use the look asking for what is the commensurate with the result test for the relatedness test where mike my friend on the other side said all the work in the first three years came to nothing which is false and i'll get into that or you apply some untethered proportionality test which is not the law under hensley i'll get into that too but any under any test we win but the correct way to analyze this case is first to ask whether we are substantially prevailing what my dilemma is in looking at the at the two opinions below so judge judge cousins goes through all of this very very carefully but at the time that they were before judge cousins all judge cousins had was the district courts was the district court's order that's our case comes down while this is pending before judge judge will come and she addresses that very very very cursory fashion pages nine to ten of her opinion that's true the deferred compensation  but she she does address i don't think there's a burden on her to write a home or a lengthy opinion the reason all but you but we might a big know how we might have acknowledged that a significant part of her final order was was reversed well i think your honor used the word largely in saying we'd largely affirm and you went out of your way to praise the opinion and the significance of the result and i think the injunction that court affirmed confers a substantial benefit on the on the class enormous benefit because it went allowed t plaintiffs to go up to the cost of attach a lot of this to the problem i have to counsel is that judge cousins had no reason to sort of do this comments or ability in corrie and doesn't look like judge will can really do it well i think she recognized the she accepted and the volume of work was enormous and largely undisputed i mean there were eight eight summary judgment brace with seventeen expert reports there were fourteen class certification briefs of the eleven expert reports so i think  there was a three week trial with twenty four witnesses you know so if you look at the volume of work in the courts found at page twenty six that's where the district courts at the staffing was commensurable on both sides there were twenty six defense firms on the lead on the defense side and so if you view this under the normal henslee approach which you have was there a the legitimacy hourly basis for the volume of work here the answer is clearly yes and that's what the magistrate judge analyzed and that's certainly what the judge will confirm they we didn't view it as all or million one point one million dollars in fees three point seven million dollars in expenses the district court cut three point six million dollars in fees they looked at the block billing and all the other objections you heard this morning so i think on that basis there's clearly an enormous record that supports this award and certainly within the district courts discretion i think you know in fox advice to the supreme court has warned against micromanaging so i think appellate micro managing of this kind proposed that you can simply forget about the first three years of the litigation and that's that's simply that's that's it has no basis that argument lacks all merit because the first three years saw the development of the entire factual record of the case every trial exhibit every witness was deposed every trial witness was deposed during those first three years and the district court in fact had closed discovery in two thousand and thirteen discover all the  words all that relevant discovery occurred during the very period that the end sounded and he says we shouldn't receive any fees at all and by the time twenty thirteen rolled around there was only a thirty five day short discovery period where the district court permitted the depositions of the new class wraps so the district court for first hand vantage point saw how the case was related over time and she expressly finds at page ten in ten to twelve of the excerpts of record the magistrate judge found it the same way that the case of the pre the two thousand and two thousand and twelve claims were related to the two thousand and thirteen claims and they evolved the same restraint the same no compensation rule for and i l's they involved the same restrictions on the amateurism as a defense to the very first complaint that was filed in this case image and the television markets were always in the case the very first complaints in this case included allegations about the the  well included current athletes that supplemental excerpts of record two ninety six and included a challenge to the restriction that students quote may not receive compensation the on the educational expenses approved by the n c double a that's it three eleven and three twelve so the complaint the both the district court in the magistrate judge understood that the plant the claims evolved over time but the test under hensley is whether they are related in the certainly the courts below did not abuse their discretion in saying that the claims were related they don't have to be identical under hensley and simply not the test is whether they're related but let's look at the other way you could look at the case which is the way my opponent wants to look at it which is what's the money value of the injunction and i agree that this record didn't assign him to any value she didn't have to under hensley there's no this is not a common fund case and she wasn't having to assign a monetary value to the settlement but if you want to go down that road i think it's clear that there's an enormous monetary benefit to this settlement because the this case this injunction in this case which issued on august eighth two thousand and fourteen created a cost of attendance standard that the n p double i had not yet adopted the vote on aug seventh that my friend on the other side refers to was just a vote by the board of governors that was in a preliminary vote authorizing conferences to go that way if they wanted too it wasn't a it wasn't a change in the rule and there were it created the possibility of backsliding because as your hon page footnote eighteen of this court's opinion you actually referred to the fact the injunction did not change did not prevent the n c l b life and c w a from changing its mind and going back and there was a real danger of backsliding because in two thousand and eleven the board of governors had taken a similar vote to initially preliminarily authorize a two thousand dollars stipend for each athletes and that never went into effect because the member schools overrode that vote and that's also on the record at pages two zero one to two twenty of the reacted to it by asking the court to defer enforcement of the injunction because it said it schools needed time to comply with the quote new rules and that's also in the record s c r sixty one to sixty three so the district court injunction was the catalyst was the change that caused the end c w a to move to cost of attendance and the value of that was actually in the record at the time of trial it's and pages twenty six to twenty seven of our brief but if you want to look at the settlement that cat that has happened after our case after the injunction in our case you can see this court actually mentions that in its own opinion it's about a six thousand dollars difference per student between grant attendance so if you want to monetize the injunction it's about six thousand dollars per student in perpetuity this settlement and grants an eight is a backward looking gravity that when it went from two thousand to two thousand and seventeen are injunction goes forward from august twenty fourth teen well one to effect a year later but goes went forward goes forward in perpetuity generate a that benefit over and over again for every student who will ever go to college and receive financial aid under the injunction so that's you know conservatively in our break we talk about could be tens of millions per year aggregated hundreds of millions again this isn't a common fund case but if you're asking what are the numbers involved it's in the hundreds of millions of dollars and so i think that is a fair basis to say that this is a a a proportionate to any benefit my friends on the other side says this is a fictional market there's no market for and aisles so all this value means nothing well that's actually not true there's plenty of evidence in the record because the n c double a right now is selling and i else that's what generates this enormous television revenue and other revenue that supports college sports and that record is that evidence is all over the record for example e r ninety one one ninety nine one three one hundred four one sixty five sixty seven i mean after the injunction went into effect we know that two hundred sixty five colleges have moved to cost of attendance and are able to pay that and so there's plenty of evidence in the record in fact at trial one of the n c double a's own witnesses dr ruben feld said that one potential outcome could be quote sharing revenue up to the cost of attendance that's in our brief page thirty six so if sixty nine which lists statements by a number of people including the chairman of the board of governors of the n c double a who said in august twenty fifteen schools among the five elite conferences were saying look we can afford to do it we just need the ability under the fiord and that's reviewed under abuse of discretion test i don't see any basis in the district court's decision for overturning that my friend on the other side said we didn't get damages that we thought and i think i mean that's true but again the plaintiffs voluntarily excluded from their fee request any fees that govern damages so that the fact that we didn't get damages needed here nor there that's out of the now we don't weren't seeking fees for that in the first place and i do think it's important when you're are to be compensated for attorney's fees incurred for services that contribute to the ultimate victory in the lawsuit thus even if a specific claim fails the time spent on that claim may be compensable in full or in part if it contributes to the success of other claims indeed it is rare rare indeed is the little get who doesn't lose some skirmishes on the way to winning the war lawsuits usually involve many reasonably disputed issue and a lawyer takes on only the battles he's certain of winning is probably not serving his client vigorously enough the county would have a scalpel out attorney's fees for every setback regardless of its relationship to the ultimate disposition of the case this makes little sense so we think this court has established that the it's ok to lose sometimes in your in your case you don't have to prevail  every single claim in order to be entitled to fees for all of the claims i mean it could probably as was awarding fees let me be clear for an unsuccessful stage of the case something the plaintiffs lost but it was related to their successful claims and so the court is saying this square held over and over again in cases like webb the sloan hensley itself applies this principle you're entitled to fees even for parts of the case that you lose so long as they're related to the success to the successful parts and the district court is in the best position from its first hand vantage point to make that assessment and that's what the court did in this case that's what judge the magistrate did and that's what judge will can get and your honor judge dr you're completely right that the district court did not have the benefit of that last bit of this it but it i think under hundley it's not just not in any way dispositive of of the reasonableness of the attorney's fees here that is under hensley so long as the successful claims are related to the unsuccessful claims even if you view the deferred compensation that money as an unsuccessful claim that we would still be entitled to recover fees on that wasn't really separate claim anyway it's just part of the remedy so i don't think losing that can in any way impeach the respect of their their attempts their assistance to their clients in handling media interviews in other words if the clients needed help in responding to present worries the lawyers helped them the lawyers did not include every media appearance issue or if there are matter in the claim for media fees so the so i think that i think the record clearly shows that the only media fees that were sought were media fees re lawyers in connection with their services to their clients and i think under davis that is clearly illegitimate and reasonable in other words david says you're allowed to use your logic charge for media fees along just there and further and so the litigation and here that is exactly the kind of service that a private client would pay for two to a lawyer so that i commend those two pages that i do think that that this recourse exercised its discretion on that is reasonable and let's see i think if there are no further questions i don't i would commend that in every respect here the district court has has examined every different issue and i think i mentioned of game of thrones business i don't think the district court saw this is all or nothing obviously this report trims three point six million dollars in fees i don't think she felt in any way required to accept the fees request in its entirety obviously the magistrate did also trams he didn't receive see this as an all or nothing deal the only thing that was really all or nothing in this case was the risk faced by the plaintiffs i mean if we'd lost we'd get nothing and that even though the even cases it's easy for the plaintiffs to simply settle before trial and then get a non objection from the defendants to their free request which is happening granted eight of you have plaintiffs who are fighting hard for their clients and taking cases to trial there is i think important public interest here on the clayton act in ensuring that the that we have here is what the supreme court says about how it micromanagement of district court decisions and that is the one common theme in every supreme court decision on is the appropriate role of the district court and the importance of deference to the on the ground first hand vantage point that the district court has in seeing overseeing the litigation understanding the relatedness and the unrelated ness of various claims seeing the staffing by each party understanding the number of lawyers involved on each side which is the district court said pages twenty six and the badger it says it one thirty three the staffing was the same on both sides are say hard fought complicated case and involved you know as i mentioned just to return to one point the ninth circuit this court has said in mcginnis vs kentucky fried chicken and i quote it is an abuse of discretion to ignore the extent of success in and the amount of the fee and fox we vice the supreme court of the united states said all or nothing is error and as that's what we have here that judge for that but if you actually read that portion of hensley it's clear what the justice palm was giving an example and it's inconsistent with the actual holding what he said was on one hand you might have a case with excellent results and you should get a full fee that's where you win everything on the other hand you might win one thing out of ten and you would have to get it reduced so to take it to a logical extreme if you had one hundred claims and you got one you would have to have some proportion so then we go to the question of where are the claims related from the earlier period different parties both on the plaintiff and the defendant side different theory of liability amateurism was not a defense it was we raised it as a district court and other district courts over and over again that and i we quote at page seven of our brief this case does not involve questions of the protection of amateur sports the student athlete experience or other goals and they said it in several different ways their second amended complaint affirmatively pled that amateurism was not involved and we agreed so long as you're talking about former student athletes amateurism is no longer applicable but but then the second case starting in two thousand and thirteen involved current student athletes judge welcome said that they didn't have any plaintiffs withstanding they went out and found new plaintiffs in order to pursue that  defendants in the second case only the n c a a was the conspirators were different the alleged conspirators were the schools and the conferences everything about it was it was a different theory so under this court's decisions on what is and is not related those two theories of the case those to the we call them a tale of two cities those two cities were not sufficiently related there's there are cases from from this court saying that if a plaintiff alleges wrongful arrest and a wrongful strip search that those two claims are not related are arising out of the same arrest these clearly are further apart than that those those at least are quote terminus in time so i think i'm out of time the last thing i want to say if i may is that the argument made by opposing counsel sort of slides back and forth on what the injunction is they take credit for the the injunction moving the scholarship from g i a up to cia but that's not true the injunction is very clear and this court was very clear that you were talking about an n i l injunction because that was the basis of liability and they don't get credit for all of the the voluntary decision of the n c a a and its members to use some of the extra t v money that the big schools and big