settlement that was approved finally approved without objection from the class or the appeal was that the judge awarded an incentive the reward that was actually a disincentive because the amount is less than  as an individual so this court has held numerous times that the point of an incentive award for the class representative in a in a class action is to induce somebody to participate as a class plaintiff have their name judge reduced the fees that doesn't transform the seven hundred thousand into a settlement fund it's still security far payment to the claims it's i mean that the whole thing in holtzman is rather categorical that claims under this statute are individual and it doesn't come within the common fund doctrine but bawly i understand what you're saying this settlement itself creates a common fund though it's not whether the claims are coming from claims it's whether there's a settlement the settlement fund itself is a common fund to the class members  example if twenty five percent of them had submitted claims they would have received less than one hundred twenty five dollars holtzman how that the action stems from discrete injuries suffered by each recipient of the junk faxes same thing here it does not create a common fund so whether by judgment or settlement these are not common fund cases under this statute ok i think you're stuck with that ruling you're saying it can't be reconciled with boeing the panel specifically considered that argument well that the but it does the panel those talk about the american really are on the point the point was that the the fees were appropriately calculated here i'm suggesting that you need to work within circuit law which is that claims under the telephone consumer protection act are claims for discrete individual injuries and that settlements  e judgments don't fit within the common fund line of cases well this court of the the amount of money that the defendant puts up to pay those claims is not a common fund and it's not an attorney's fees aren't measured against that the total amount well the fees were bases this court aside there's two ways of calculating fees and a class action right lodestar with a multiplier or percentage of the fund there's no fee shifting statute here so the fees have to come by agreement of the right right i'm not suggesting that the fees were properly calculated here you bargained for one hundred twenty five dollars per plaintiff  per class member right the people who submitted cleans each getting one hundred twenty five dollars right i mean that was what what you are going for that's what the defendant agreed to pay far less than the total class  members actually file claims only seven thousand nine hundred some odd plaintiffs actually submitted claims and the district court here assessed the one third attorney's fees against that total instead of against the seven hundred thousand but under our position in the pearson case there's a fair way to evaluate unclaimed money so everybody gets their hundred twenty five dollars they don't get to learn twenty five less fees they get a hundred twenty five dollars the fees are coming from the unclaimed money in the fund by agreement of the defendant not through  got from the people who claim this coming from the money that wasn't claimed my my point is that that the measure of the one third came out of the amount of filed claims the total amount to file claims that's how that the court got to the seventy some odd thousand dollars right she just took one third of two hundred twenty or whatever the file claims for it am i misreading that yeah and then she added that on on class action settlements accept if it's a case by a uniform party people say the prisoners in the jail are complaining that the he does turned down too low otherwise every case about any kind of the pearson case which needs to be read in the context of the holtzmann decision and pearson suggests that the appropriate way to handle the calculation of the one third recovery if that's what the court is going to use instead of lodestar is to take the value of the filed claims right that's the two hundred twenty some odd and then the attorneys fees that you negotiated for and the defendants agreed to pay which is what two hundred thirty three thousand plus the and set of a war that you negotiated for and won and the defendant agreed defect pay that's thirty thousand dollars right you know the judge awarded one thousand i understand i want to talk about what you want in your negotiations and what the judge and his agreed to paying that that's not the cap the seven hundred thousand dollar cap that's just security for payment of clay some talking about what you won in these negotiations you one hundred twenty five thousand per plaintiff i'm sorry hundred twenty five dollars per plaintiff plus to thirty three thousand two hundred thirty three thousand and in fees and fifteen thousand per named plaintiff ok is that right well it is that is that was the proposed settlement right that's what you bargained for that's what you won that's what the defendants agreed to pay so you add those things up ok and then you take one third of that ok well i understand that i understand that calculation the problem is why does the court approve of it ignores the benefit conferred and made available to the people who didn't submit claims their claims are still released they do are they are benefited by an injunction so they get a notice the judge approves the notice says the notice is good the relief is good it offers one hundred twenty five dollars to each person unlike pearson there's no receipts or memory needed or anything like that it's a one page claim form all you have to do is say whether it was your fax number at the time they were sending faxes and you qualify for a payment so it's really unlike pearson and pearson wasn't the  purposes of a settlement and the way to reconcile that is stick to one that when the judge decides that the fees are excessive and the incentive for to award is excessive then the class should get the benefit of you're not the defendant ok that means you don't get one third of seven hundred you get one third of what you parking for successfully even if the judge isn't inclined to give you all of the fees and incentive awards that she won from the defendant so the judge did not find the fees excessive she said that she was bound by target only over award fees based on the percentage of right that was in the money did not but i'm sorry i'm out doesn't go to the class it just goes back to the fun right there seems to me that if the notice is good in the and the relief is good in the method of getting it is good and the settlements approved the owners and the point of punishing the lawyers for making that all of able why not reject the settlement if the settlements are not good enough reject this i don't want to do it don't say it's good enough for the class all these people who didn't make claims didn't get a benefit i didn't confer any benefit on them as must be the it must be the view of the cork even though they did get an injunction and they didn't opt out or objecting it's a class of businesses it's not a class of of an educated people or children or elderly people it's a class of pharmacies and these people get the thing they look at it they decide whether they want to submit a claim some of them do some of them don't hear fifty four percent of the mou allocated to claims was claimed so it's a pretty good claim but the fewer claims would be the better for you going to your formula until nearly half as many as did file claims you would still claim that you should get which left over seven hundred thousand no no we didn't claim we'd get the left over we just said we would get a third of what we made available we just going and negotiate some way to come forward and say judge so there's all we got no matter how many claims you got you get a third of what you made available even though there would be fewer when i'm looking at it if only half as many people made claims for one twenty five you'd still get a third of what was made available is that what you're saying well that's what this court's case lies for the last thirty years if the claims had been higher the judge could have reduced the fees and said well look at all these people who submitted claims i'm going to reduce your fees and make sure everybody gets their claims here that didn't happen she just reduced the fees and gives it back to the defendant who agreed to pay the defendant agreed to pay the the class agreed we should get paid nobody objected and somehow it's because of the combination of the statute the type of statute or something even though there's lots of statutory claims including securities claims where everybody's claim is individual and there aggregated into a class and this isn't a jurisdiction issue this is an issue of how do you award the attorney's fees in a class action my time as a writer thank you thank you way on the arguments raised by the appellant i would love that i were in a position to argue something before this court but unless you all have specific questions i think that's the sum total of what i can say thank you have appeared in seven circuit thank you