please the court i'm casey flinch on behalf of the st lukes defendants i'd like to reserve three minutes my time for rebuttal ok this is peel presents a question of law which is whether the private plaintiffs can substantially prevail on their clayton act claim without establishing that they were entitled to any judicial relief it's a black letter law that in order to win relief under the clayton act a private plaintiffs as opposed to the f t c or some other government plaintiff has to prove and and so ordinarily if you have several parties in a case and one of them has standing it doesn't matter whether the other ones do so why why aren't they legitimately in this case without having to demonstrate their own and i trust standing as long as they went on the merits the district court was certainly entitled to enter an injunction based on its findings of an antitrust violation without reaching the question of anti stress antitrust injury to the private pla but the question now is whether these plaintiffs are substantially prevailed the question is not well they prevailed on the merits of their i don't trust plan they didn't know and there was no decision as to whether they had antitrust standing an antitrust violation was found that's right and second here's my problem with this case and the same question i want to ask the other side the district court tells us and i think it's an absolutely accurate reading of this record that it it ruled only on the f t c these claims not on the private exclaims private plaintiffs have been arguing throughout that they were entitled to relief under claims but neither neither court that it had to adjudicate this case found it necessary to address their  arguments that's the record under those circumstances and they keep saying to every court they show up in front of district court by the way when our claims to the court of appeals by the way we should have won our claims to case that i've actually seen where we then say at the end of it well too bad because we as courts decided to deal with the case in a different manner than the one you presented to us shouldn't we at least say to the district judge hey you tried to duck it and we tried to duck it but they're asking for money at this point would you tell us what you thought about their claims that i'm not sure how that would work well but he's got a complete record he can say good looking back at it you know the truth is they wouldn't have prevailed in their claim so i'm not going to give him money or he can say the truth is they would have prevailed in their claims and then you can come up and fight about it but one of the one of the difficulties of this case is it's not just that the court decided on a different basis they kept asking us to decide the case on the basis that they were presenting a lazy circuit judge found it unnecessary to do so because he thought the f t c as case was quite strong  so what do we do it a case like that well it's a little bit of a variant of the question they got the relief they wanted now let's assume for a moment that's not enough that they have to show that they would have gotten it on the basis of their claims they keep saying they would have don't we have to ask somebody to answer that question no your honor you don't the d c circuit address the situation in the long distance telephone case there are three plaintiffs challenge in i r s notice one on a procedural theory the other two only on substantive theories that the court struck down the i r s notice invalidated it on the procedural theory and didn't reach the substantive claim and then it said those substantive claims were non frivolous they were potentially meritless it will never be known because they didn't need to be decided in order to strike down to invalidate the i r s notice and the only plaintiffs who prevailed for purposes of attorneys are getting the notion that i mean cannon as i understand it and it's progeny depend on whether it was a judicial the order change in the relationship between the party such that they actually got relief in the case  not whether it's why that happened doesn't seem to be particularly mature for example a consent decree is good enough how is this different for the purposes of having to prove up their claim from a consent decree bu procedural prerequisite it's an element of article three standing well is that an argument of article three standard yes it is your honor because private plaintiffs are not injured by price all right well the basic rule on that and from the supreme court  no it's article three your honor the private plaintiffs are not injured by price increases because their competitors and they benefit when we were told this year by the supreme court for example that an intervenor can come into a case and be part of a case as long as they are seeking the fees not unless they were entitled to the fees in their own right yeah i mean this is a difficult issue so i want to make sure that at least we agree on yes the buchanan really doesn't say that buchanan it's an it's a it's a  fairly i think straightforward reading of you can buchanan talks about a stablish in the merits of your claim and normally the way we figure out whether somebody is established the merits of their claim is whether they get relief normally enough if you're the only place in the case it's certainly an ok so in this case they got relief but there were other plaintiffs in this case they got relief and it's one hundred percent clear from the record that you recited earlier your honor that the granted thanks to the government plaintiffs proving their claim right now and so so i'm from trying to figure out what buchanan when it talks about claims who your claims are getting a judicial imprimatur or does it mean your theory of the case or does it mean your relief if the other parties agree that the plaintiff should have relief ok so how does that measure up to your notion that you have to prevail on your claim all of it not just the important not not only the piece that gets you the relief but some other piece that is not relevant to this particular case because in this particular case it doesn't matter whether you have article three instead and consent in a consent decree there's an agreement between the parties that relief is proper certainly there is no such agreement in this case so it didn't turn out didn't you agree at least twice i mean least in terms of arguments on appeal that if we held for the f t c we didn't have to reach their claims i'm not sure i understood well so it's  a little bit like a consent decree where you've said was you know you don't have to worry you know we asked everybody a multiple times on the original panel if we find for the f t c do we have to address the merits of the private violated section seven and that's also should be divestiture of the finding judge's findings of fact talk about ruling in favor the plaintiff there is a point where it says hardly but there were more than but there were in effect there were two governmental plaintiffs and and other that's and forth go back to what judge burrs on was asking earlier why shouldn't we send remand it to let the district court tell us what it thinks about whether they were a prevailing party in the first place you started to talk about an eleventh circuit case that you thought was d c so yes so there's no reason to remember to ask that question because what would determine prevailing part i'm sorry i didn't mention well if you could there is one sentence that talks about the merits and all the other sentences talk about relief and judicial orders and the merits in this instance they did prevail on the merits  so on page six zero six it says that the catalyst theory does not work or i'm sorry this is on page six o five it's that it is under the catalyst theory  is sort of indifferent about how the relief comes about your rights certainly by canon dealt with voluntary association but it doesn't the case doesn't turn on the fact that it was voluntary association it turns on the fact that the plaintiffs in buckhannon didn't prove their claims to legal relationship between the party here and get they got exactly what they want your honor the relief they wanted was entered but they didn't get it the government plaintiffs got it and i actually point the court to your argument is that it's not enough that they got a fit of someone else's work in order to get paid for someone else's work that's exactly right your honor and some of the cases use the term following exactly the observation you just made use the term writing on the f t c as coattails the district one of the difficulties i'm having is that everybody's piecing together arguments that are implications from the case law other than the d c circuit case is or any other case that you've got where people are making the same in effect claims under the same statute some of them when some of them the court says we don't need to get to your claims and and fees are divided on that basis under the same statute i think not and what to do and what the d c a judicial construct that says for private plaintiffs you need to show exclusion from the market for the governmental plane if you need to show a certain effect on pricing i agree except for the term judicial construct it is an article three requirement to show injury course i know the injury see that's where you and i i'm not sure it's important but if we had said it's enough for a private plaintiffs to show prices will increase then i guess they would have showed injury well that that would have been exactly quick question of the birth let's assume that you're wrong about their entitlement to fees and given our reluctance to second guess the judge on amounts can you give me a very short argument about why c and state of idaho claim that prevailed so then he assessed whether that his task at that point was to assess are the fees awarded requested by the private plaintiffs related to the unrelated claims unsuccessful and related deference is appropriate to employers judgment when the lawyer is talking about you know what your legal activities shall long should i spend researching this issue how much time should i spend revising this brief but when the question is does your work per chain to my friend will have to give more information there isn't a request at the outset about mediation in the parties declined i understand that but i'm asking you maybe you can tell us when you stand up after the argument after the next argument  whether you think it might be funny possibly enough to what least have a conversation with our mediators about whether to have mediation well your honor the fees amount stands at over eight million dollars i understand that's all the more reason why mediation might be helpful tour for the private plaintiffs so what i'd like to do is pick up on some of the things that came up before in the prior argument first of all most emphatically the record shows that we were not tagging along for the benefit of somebody else and if you were chosen find that he found that you are a big help to the government on lots of evidence but your friends argument quite simply is the district court didn't buy your theory of the case it didn't reject your theory of the case but it didn't buy it either so what are we to do under that circumstance and i think if you look at the sierra club case out of the six circuit if you look at the penn state hershey decision that took a different position one of the series of cases is somebody advancing several different theories and prevailing on one of them you only had one theory your theory was that you were going to be excluded from the market so let me let me give you a hypothetical to maybe focus your can i just respectfully say that's not what i read this erica place to say in that case the court relied on the fact that there was a think your words i know let's assume the district court had been incredibly meticulous and it had gone through all the evidence in front of it and said i would not give relief to the private plaintiffs on on the claim that they needed to prove up because i don't find exclusion from the market but the f t c with its proof about pricing has shown in title meant to relief and therefore you all get divestiture if the court had said that would you be successful yes or and let me tell you why because the judge found that out of the what you're calling the f t c claim but what the parties including the f t c called the common claims you know that was and we were a lot claims misshapen claims because every single issue  his claim was an issue for you you know you prevailed on some issues i don't doubt that so you don't you don't get to change my hypothetical so my hypothetical is look you approved up some stuff that would be very helpful to your claims but at the end of the day you wouldn't win on them the testing so i want to i just want to make sure i finish i got the district judge says private plaintiffs had you been by yourselves here no relief would have been awarded to you but luckily the f t c the white knight wrote in and the kind of proof they have to put in is not the same and so i'm awarding the relief that everybody sought would you be the prevailing body under that circumstance that are at the reason why is we got the relief we wanted the end and we played a significant role they did penn state hershey they did it's not right and we just think that the contribution is really the merits of the fees claim that is if you were there and just making a lot of noise not accomplishing anything then they would say that you said it clearly but all but said that we're prevailing party under these circumstances the ninth circuit said where there's no decision on the issues in the case you could still be a prevailing party if there is an order those are the consent believe of or an interviewer of right so if you're in the case on that basis and then and therefore don't need the standing because you're already there seeking the same  of so i'm saying the opposite i'm saying i don't understand why it matters he wasn't able to touch it try to help you i'm trying to say that i don't see why it matters whether you would have had antitrust standing because in this particular case the way it turned out you didn't need the end antitrust and i certainly agree with that and i think that's consistent with these cases the consent order case if i could just go through my three scenarios real quickly that the ninth circuit says that there's a good set order that's enough that there's no decision at any gave us the relief but did decide every single issue girling there was no relief the fear warded statute and the court still said basically because we don't want to require the court to decide all these all the law that's the question i was asking before we don't require the court did any of us to be fair to you you asked twice that the court decided to merits of your claim and twice the district court in the court of appeal said we don't need to because you get all the relief you wanted under the f claim so my question is what do we do under that circumstance and i'm saying just like that girl and you say there's a perp there's judicially kind of me is served by judge when will who's very busy in your auditors who are very busy not having to decide every last issue because of the possibility of attorneys fees claims coming down the pike and if that's the case just like a girl and they said you should have to decide constitutional issues if you don't have to the ruling ought to be that is long as the relief is there that's sufficient  course again every but everybody reads out of cases what they want to was growing like a multiple parties case no it was not right it's a single party who prevails on their non fee generating issue but and the court says but you sued under a fee generating statute and you prevailed so we're going to give you fees i'm still you know you're hungry talk actually don't i don't think i'm trying to find a king i'm trying to find something to deals with this kind of situation other than the d c circuit case if you go well with all due respect i think girling and relevant in terms of the rationale is identical well no i don't think so because in curling there's one plaintiff that plaintiffs sued for that plaintiff prevailed we know he prevailed on his claims he prevailed on his non feed generating claims and the court says well you prevail they're not fee generating claims that's close enough for government work we'll give you your fees my problem in your case is like you didn't i can't tell when you prevailed on your claims or whether or not you just got relief because the f t c was entitle to it now judge person may may be right that that makes no difference but i'm trying to find something analogous in the case law that says you're entitled to fees other than the penn state hershey case which is an appeal i'm sorry penn state hershey something we just said in under our rule twenty eight submissions it's a case it's another district court case just like staples that went the other way and penn state hershey ultimately they point can just citing your you're standing because in misc joint case you don't need to have standing but still there is a proliferation of lawyers as a result and will said we were not merely somewhat helpful but we were crucial and he did make that division because he credited in a two page discussion the ninety percent ten percent of males as well but you know i've had the misfortune of having to read the whole record in this case once and you know it did there's a lot of stuff in this record about exclusion from the market you are what judge what i did what you had which has nothing to do with the f t c like what i did what judge would bow credit is that a witness had a significant contribution to the common issues of the case that he decided many of them did on geographic market on efficiencies and so on that it went into the ninety percent bucket and i think under hensley that is more than just your butt but before trial in this case there was there was a whole bunch of activity are you saying the activity you conducted on your own before trial the ninety percent of that went to the yes went to the government's case yes roger good let me say one other thing real quickly well let me be a little more specific maybe yes maybe no but the judge when mel just took this number and said i sat here and i looked and it's going to nuff number but he said nothing else to me no attempt to go through and demonstrate anything about what actually happened  where he had a paragraph describing some of the arguments we made which he credited and he was able to look at my detailed declaration which went through witness by witness that explained what was wrong with with st lukes position on this relating it specifically to propose findings and findings and issues in the case you are going to want to think very quickly you know another thing that a lot of the ninth circuit cases of emphasized is the ability of the party who was seeking to be called prevailing to enforce the order here that happened here after the judgment was entered there were proceedings to take supplementary discovery which had resulted in a due order appointing a moderator and a receiver we were heavily involved in that i spent i spent half the time of the deposition of d there was no there was no contest about that i suppose if you brought the supplemental proceedings on your own in the f t c has to decide then then judge when mills order might be very very good evidence that you had independent standing to enforce own party doesn't mean all the party we had a key role say looks never argued that we did have the right to enforce it never argued frank why would they the f t c was there trying to enforce it too because they knew what i was doing to your honor and they didn't try to say i could do it ok i don't want to get to go didn't i ask the same question i asked you could let us know whether that see something they're willing to do would be helpful because in in the world of litigation you might end up with zero you might end up with four million or you might end up with  you thank you very much whether or not they had standing there enough and the existence of one plaintiff with standing is enough to support the divestiture order the prevailing party analysis is a separate question and as the cases we have cited make clear the d c circuit case because none of the cases are exactly on point let me give you judge greer's on hypothetical let's assume the f t c had brought this case and the private plaintiffs interviewed they wouldn't have to show that they would have individually prevailed because they don't have to district court had authority to hear the case but any time the private plaintiffs were going to win a judgment in their favor relief on their claims they need to establish standing that is that intervener in order to get fees must independently  started they started the train moving and then the engineer jumped on that they if they filed a lawsuit that's true now that mr andrew was talking about what would have happened if he had told his client at the outset of the case  maybe someday the judge won't reach all of our issues and then we might not get fees well that private plaintiffs have known all along that the government was on the case they knew when they filed the complaint that the government was investigating obviously they knew once the government joined the case they had every opportunity they knew that the government the f t c comes in with an easier claim to prevail on the f t c doesn't have to establish injury to competitors and only after established injury to consumers whereas private explicitly gives that authority only to the government plaintiffs it was the government plaintiffs that primarily enforce this order ok thank you both very much and we may issue an order to ask you to at least have one conversations with