good afternoon everyone we are here to hear argument in the case of pearson versus target versus randy yes and this is the door frank and we will begin with m be yes you're getting some feedback two or are you just having a harder time hearing me that was better just then yeah sorry this is the clerk i just muted the other attorneys for now i think there was some feedback coming back so if we leave james and john right objectors receive these payments even though they had no particular artist claims of their own and the last settlement was not in any way improved now mr bednarz let me start you out because it's very little time if you were giving a course to judges about how to distinguish legitimate objectors from that once just looking for a payout what would your description look like after all buckley for example objected to the amount of attorney's fees just as you did and he claims that he wanted a better judges can easily discern you know any rate the better rule is the one that creates the best incentives that is the ones where objectors who do you have would have the incentive to proceed with their appeal and wh if an object are only six of payoff they would not be inclined to object because upon the just your court under the amended rule twenty three dollars would discern that there had been no improvement to the underlying settlement so  way dissimilar from other class members they were trading off of only their own claims in form they were trading in actuality the value of the you're lying settlement well i don't know i mean let me tell you two things that bother me about your position one i can't as judge rover's implying two i can't figure out what lines were supposed to drop because it seems to me you're really arguing for a position that any time an object or settles an objection on appeal the district court should be obliged to discords that money and that seems too broad to me the other thing that bothers me is that this is at rule sixty stage of the case this is not a brand new thing and the standard for showing error is an enhanced one under rule sixty and you were given the opportunity of course to go under rule sixty six that's what pearson to gave you but i don't see in the nature of at least the two objectors who are here what's so extruding really wrong the district court may have used some strong language about how   the attorney's fees that that we have mr buckley you know he says the sixty thousand dollars was largely simply to reimburse his lawyer for making an effort to improve that no it wasn't a successful effort but i don't know why that is so morally reprehensible that equitable to scorch men is called for well it's objectionable for the same reason that was raised in buck 's four page objection what is he was objecting to the class council getting paid for time that supposedly did not benefit the class and you know objected to the same thing right we objected that some of one hundred and eighty thousand dollars should be deducted from councils but you earlier had been objecting to the amount that class council was going to receive if we go all the way back to pearson settlement with these objectives so it's not in fact the case as buckley says that the original settlement agreement proved by the court was left intact there was infact a contribution by pleaders counsel as well and is there any reason class rather than return of the payments your logic is that the entire net worth of the defendant might be payable to the class and even though the defendant as here st decides seven million five hundred thousand then maybe even in some quite unrelated litigation it's willing to pay a little more you just keep adding it on and on and i don't know why that's a rational inference well if it's like this come around if you're sick one the entire amount essence the idea that the defendants now have to approach class settlements with the notion that there's going to be an objectors tax imposed or at least that's a significant risk in going forward if they if they try to settle and i understand your proposal to be to try to capture that up front for the class could you give us an idea of how you think your rule would work in practice under amended rule and thirty five with the requirement that an object or specify whether the objections are being raised on behalf of the class as a whole individually or a subset of the class approval implementation of the settlements and those are the sorts of objections that can create this is sort of tasks and i should emphasize it's not necessarily the case you know we use the words of origin and black  b all of the scrutiny that goes to the named representative the objector has until the objections raised simply been unnamed member of the class so where where does this fiduciary duty come from  duty found there in the statute so i mean it says well we're not going to specify completely but it's at least a duty of good faith but it's very much as i read that case very much driven by classes of debt right then that was the only reason they had an ability to speak up whereas an object or is an individual actor very much like an opt out is an individual actor and remember young versus higbee is long before you sit down i know you're about in your rebuttal time if this case were replicated and came up now now that rule twenty three has been amended would there be any problem at all or has the amended rule twenty three really going forward solved the things that you're talking about now this case is very important because a minute rule twenty three does not provide substance about how to measure this such side of pain and if they just are court was affirmed here it would do a lot of harm from an object or appeal to a seat because settlements are structured that they don't go into effect until all the opi appeals a result so that if this is a benefit every possible imaginable so ideal would cause the same benefit and it would make it would make the amended correct in this case the district court made the law in concluding that that we needed to prove that there was a violation of a large statute or a rule but we and that way he had he abused his discretion is that your bottom line well it was just a question other words your bottom line is because he made an error of law that was the abuse of discretion  i think mr frank is reading far too much into this court's court's two thousand and eighteen decision which merely gave him the right to have his motion heard by the district court it did not forecast d the outcome it did not  it did not even in doris mr frank's characterization of what constitutes a object of blackmail i note that mr craig quotes that portion of the court's decision throughout his brief but in that in this court was merely paraphrasing mr franks argument to the court and even in mr franks formulation it required a require that the appellant have no intention of improving the settlement and that's simply not the case here this year and mr pence are appellate courts and thus class members guests and then to find not having the certainly there is and my client and i believe that we had a strong chance of prevailing in our appeal however and we did not seek me did not seek a settlement we did not contact any opposing party especially defended since we could not imagine why the defendant would have any interest in our deal but when that offer was made i was best known to pass it along to my client and my client decided that he would like to accept it you know it seems to me that these private well that and another one of the disadvantages of these private settlements is that there isn't a judge or a magistrate helping clients determine whether the division the division of that settlement between  attorneys and the clients share seem reasonable i mean i realize that this is true in any private settlement but don't you think it is particularly problematic in these large scale class action or your cases i mean i'm struck by the fact that you claim seventy eight hours of legal time for a poor page objection and a three thousand word draft at the th circuit grief to be perfectly you know glut with you well there was also opposition to an appeal bond there was a supplemental  attorneys fees but i you know i understand what your honor is saying this was not all that much work on the other hand you know i think it was a relatively modest number of hours but your larger question is don't you think the judge  oversee this we're going forward certainly district court judges will end in this case essentially mr frank in the class got the benefit of her as if rule twenty three if i were being applied retroactive because the district court judge did take a look at this including the division of the settlement between attorneys fees and the payment in the form of essential and so of award to to my client and he found no no problem with person wrote it in general it was a problem in the past possibly going forward it won't be and regardless of the outcome of this case those things will be scrutinized in the future the class well yes and that factual scenario possibly although i can't imagine a settlement that hadn't already been funded by the time that this record entered a final judgment  about the structure of incentives and fiduciary duties here if if mr buckley's objection had been successful and had improved the settlement for the class i take it you would think it would be what theory well that the theory would be the same its trustee greenoak its a benefit concert parties that were not represented by by me or my client but and so would your position is that you are entitled to seek that kind of a benefit without undertaking any sort of reduce your duty on behalf of the class is a right yes that's correct i believe that a benefit concert is what gives you the right to seek attorney's  experiments theory where where as you know it's the undertaking of a duty when you file a complaint in the allege that i'm representing not just might lead plaintiff but a class of like like how much awaited i understand that you know yeah understand the general premise but i under what i have trouble with his understanding why somebody asserting such a claim on behalf of the class should be able to settle it privately without benefit last i read young against to be pretty broad is having despite its pacific statute statutory provisions it dealt with general equitable principles of unjust enrichment  we look at the restatements if we look at young you you you step up you assert a common good and then you settle for a private payment  what's wrong with with imposing a fiduciary duty on the settlement of that claim that you're asserting on behalf of all those other people well that such a rule would preclude appellate settlements portion of the benefit that my client was seeking on appeal but because this was the defendant a target that contacted me and sought a settlement for reasons that were out that remain unknown to me the only deal they were offering is to pay your client a small amount of money and compensate your look start and that and that was the offer and my client accepted that offer and i was you know unlike mr frank who has clients swear off any any  right to a private settlement on their behalf you know michael my client and my relationship was not the same as that client filed a separate class action in the southern district of california way back in two thousand and thirteen and i cannot tell you how confused i am about hearts and your argument it almost sounds like you are arguing that the district court in the north here just because illinois has had some obligation to follow  order of the district court in the southern district of california or exactly district court in illinois could not settle it case because of  understanding is absolutely correct so that i let me ask that it did you think you were going to be the only person at the table or were you looking for a cite a table with some sort of comedy to the southern district of california i had thought you were just looking to be included along with everybody else who the northern district of illinois wanted to see there certainly we would have been more than happy to simply be an include and agreement which does not have a single word referencing the kalak cornea litigation actually does refer to the california litigation well absolutely  to protect the interests of the other and you know it would have been the well i'm not sure if our our appointed andrew class council  this was raised in the papers you know it's not a good policy when you have to have interim class counsel appointed in one case and create a situation where there is an incentive to reverse auction the case to the other  future you would have that exact situation where one might wish better so michael scuse me but my my concern is that your theory for objecting was to protect the ability of the class of the punitive class amended rule for a minute because as judge hamilton pointed out the amended rule seems to contemplate objectors making any of three different types of objections some entirely personal some for a specific subset some for the entire class so i take it you're only talking about class based objections that an object or might have an individual lies to objection in a case am i'm not saying it's this case but in some cases from going from an eight hundred thousand dollars home and hung benefit to it basically if or one million dollars and fit and these three objectors provided zero benefit and got almost as much an attorney's piece we did if if the lower court's order stands it creates a very much to all three of you the court will take