thank you your owner's name please the court theatre a tranq for attorney's fees and in this case greg marcus objection resulted in a tripling of class relief a result that this court had previously said would be hard to imagine marco made a very modest request for fees of less than ten percent of the marginal benefit to the class less than five percent of the total attorney's fees and less than his attorney's going through with your regime in the last minute decided that he wanted that i am sorry i did i mean i'm it seems that he doesn't waiver you talked about it seemed that he did wait a long more to discuss and none of that happened on january twenty fifth the court held a hearing and said it's impossible for there to be any legitimate objections to this so we don't need notice  and i'm going to issue an order approving everything and that order said class council may now make a few request there is never a schedule first to request a few request was never made and we said well what do do we now and the rules say well within ninety one days he can make a request for fees and that's what we did straight could i ask you for just an update on where things stand frankly i thought this case was over three years ago what is the current status of the v for counsel my understanding was that the court ordered the fighters to strip it is on january thirty first of two thousand and seventeen and i don't have they been distributed and i don't have any reason to think that they haven't been it's never a report to the court one way or the other on any distribution of cash to counsel i assume there was but again that's not in the record ok ok as i understand the problem the judge conelly was presented with for this appeal well the the original supplemental fee request b class council was going to take the total fee back up close to the three million range that's correct you alternately agreed to dismiss your second  little disappointed that that appeal was dismissed because i'll tell you i would have voted to reverse i think any supplemental if you feel ward given where we were after the two thousand and fifteen fifteen decision but you made that call the problem is i see it though it is now we've got that settlement agreement  that says class council will receive two hundred twenty thousand and change you agreed to that and now you seem to be seeking a result that would differ from that well class council would receive agreements and couldn't say an integration clause so that nobody could claim that there were oral side agreements but the background legal rule plies as a matter blackletter contract when an agreement silence or on a the feel word target we approved and modified in two thousand and fifteen turned out not to be final his occurred to me that perhaps this court should take the extraordinary step recalling the mandate of proving you can settlement in the first place who would be your reaction to that well we agreed to dismiss the appeal requesting that go back to a coupon so redeemed basis for the class council's fee word that would be up to the court and all the research time for about the background people does not have any application here it wasn't raised at all by dr marko below with respect to the judge can i was making these decisions now he says that judge now we should've known that somehow objecting marco was going to have a right to come forward and make a motion for attorney's fees in fact what happened was frank he caught him mr k i'll phone to his southwest counsel and had each of them testify and ask them questions as to exactly what happened with the settlement so he could decide for himself to make a very clear record as to what happened supplemental feel ward given that we had been told the feel word was final unappealable as part of the cross appeal back in two thousand and fifteen  and we had modestly cut that field work i was frankly of stahmann to see that there was such a request let alone its magnitude the basis for a supplemental fee award was that when judge conell granted the initial fear ward he denied any prospect of time that would go for working on the appeals isn't set on the stray ship of the case and so after the case was the sounds of farm with much i think approximately one point seven million dollars and that was for the work on the appeal that was for the work on the appeal and work toward a settlement of ministration and then judge  if we leave that mandate from twenty fifteen standing and either affirmed or reverse the decision on the eighty thousand dollars request here requests from class council correct if we affirm and if we reverse and simply cut it back eighty thousand dollars in light of the fact that mr franks efforts do seem to have tripled the relief available to the to the and is there any doubt that mr franks and mr marco's efforts were what led to the tripling of the offer of relief for the class yes there was they have a  no more money at all you got to be satisfied ejector was not seeking any more relief for the class that went con the super farm was still trying to get the additional fees that judge conelly had approved and with the southwest and said well can you guys provide more value just because now you know what the answer is to how much you have it had to provide and southwest's response was we would do that but you have to you have to suffer some pain too and you have to cut back humanitarian amount it correct this coupons have been distributed yes neither has any dollars changed hands as between council has is class council been paid yes passed out of the day how much it would be the one whatever the whatever the awards were i guess one point where they would was an ace in the element in the appeal that was order which i guess would be the one point seven million and then the two hundred twenty and is it correct that it was not until the supplemental feel ward settlement that the district judge was told that the coupons claimed were only about one third of the amount that he had been earlier told that i'm not sure how to for that southwest coun you have any thoughts on whether we should reopen the mandate that you have my thought will ask you not to i think we had finality cheap before we thought the case was over as well so did i and then separate comes back in and asks for another one point three million dollars in fees which is what has produced this litigation over the last three years i wouldn't i don't want to quarrel with you about that but i'm not willing to triple the offer in order to and the long sequence of litigation like you your honor we were hoping that the case would conclude in august two thousand and fifteen as it had been going on for four years at that time and so therefore when subsequent objections by martin how continue to drag us along can quired us to continue to spend what we thought was a necessary attorney fees  we were willing to give additional compensation to the class just in order to end it and yet here we are again so you're correct could you help me with the man there what was your assessment of what and what had ben ordered to be paid to separate was much less than one point six or something right to that effect so at the point that the vet that the subsequent appeal appeal number two by mark out was pending before this court there was also a request by separate as judge hamilton you recognized subsequent to the august two thousand and fifteen ruling by this court for much more fees up to three million dollars so southwest was willing to create a modification to the settlement to give additional compensation to the class so long as separate would take less so that we could end the litigation that was the ma i can't tell you the exact numbers i know i'm not hasn't but that was the calculus if that's what you're asking i have extremely limited time because that we only reserve two minutes the reason for that was that obviously mark out cannot request additional fees from southwest because that would violate the original settlement agreement which had no further payment provision for southwest i would argue that mark house current request for fees is in violation of the original settlement agreement because the original settlement agreement did not provide for fees for the objector and it also had a waiver clauses said that if mark how did not raise that objection back then he could not bring a sphere request now and we know that he could have objected because he objected to so your honor with respect i would take only issue with the word exaggerated it was a mistake by the claims administrator who had in my old actor three yes there was one entry so you don't you don't like exaggerated it was overstated overstated yes not exaggerated but overstated by a factor of three yes that's extraordinary hell long did it take for that to come to the district court's attention so that came to the district court's attention  when i came into the case and started the process of trying to provide notice to the class for purposes of paying out the boucher's we did an investigation of where all the vouchers were going to go and we and the claims administrators and my firm identified this test and treat it was in the spreadsheet that the claims mistreat or had relied upon when he made the prior affidavit to the court back in two thousand and i think it was thirteen s half a million point he's saying there had been my remembrances five hundred seven thousand or something to that effect so somewhere close to that number yes there was a test entry for three hundred forty two thousand three hundred forty two and it inadvertently been left into the spreadsheet when the claims administrator had reported out as the number of total requested vouchers so when it came time to give notice to class and start to benefit to the class here is one third of what everybody thought it was yes only except that the benefit to the class was one third in terms of number of doctors claims but then it's three you the disclosure to the court about the in corrects original disclosure was made january twentieth two thousand and seventeen that's at page one fifteen of the record the district court's original settlement approval did not know how many claims were made settlement improvements and claim to marco had made a separate oral agreement not to seek fees at the district court rejected well the district court rejected the second contention that's a page nine of his opinion there is no factual dispute here the only factual dispute is the legal consequences of what was agreed to and we identified the error at pages twenty two to twenty seven of our opening brief and again at page two of our reply brief one year or so they should have expired by now strake one of the concerns i have about your argument is that it would seem to make it very difficult to reach a definitive are by class counsel well i don't think class council could have made the supplemental fee request and that's why we brought the second appeal they were claiming we didn't have standing to raise that which was one reason we settled it wasn't clear that we did have standing to raise it her and we had a district court that was very unhappy with us one point on page sixty four of the appendix it suggests that the objector should be paying one million dollars in attorney's fees so we were eager not to have to continue to litigate this in terms of what would end it with respect to objectors just as we did not have a clause in the settlement agreement saying we would be seeking attorney's fees they did not have a clause in there saying we could attorney's fees both sides left it silence and did not address it that's what the court found a page nine and the consequence of that as a matter of law is that the background legal rule  applies if obviously in the future parties should do more to clear up whether there would be as future a few requests i could answer any other questions the court might ha