this morning i will explain that that class certification rested on several critical legal errors about whether participants can bring a common fun claim that all win plan terms precluded as well as whether such claims can be bar settlements and i also discussed how individual questions greatly predominate over the common ones in this case and finally i will explain that there is no basis for applying the ten year statute of limitations here because tom fine claims are not based on written agreement and will rest on our bodies for the remaining arguments to begin with planned participants cannot bring common fund claims that the city's health care plan provides at the city quote so not be responsible for any attorney's fees incurred by a participant in connection with an injury claim unless the plan shall have specifically agreed in writing plan participants are bound by this provision attorneys are not that's what bishop and sultans hold and that's why the illinois supreme court in those cases held that those common funny claims were appropriate because those plans do not govern the relationship between the city an attorney who is an outside party to the plan but for participants who are party to the plan however a longstanding rule under illinois law is that when expressed contract gover contract terms and that contract should for all and this isn't just a technicality it does matter who's asserting the claim equities line a very differently when it's an attorney asserting the claim versus a participant the does matter because the equities line a very differently when an attorney brings a claim the idea the ethical principles behind that is that the attorney is provided the service the city has received a benefit for which the attorney has not received anything in exchange but when a participant has a claim they may have provided a service in the sense of pursuing a third party tortfeasor and the city provides a benefit but the participant receives plenty and exchange for that benefit the participant receives a full array of the city's health care benefits in exchange for that so you know it is not the case of that because if it is getting something for nothing in that situation so for these reasons we submit that when it that that a participant is not a proper party to bring a common fun claim and for this reason the class is not properly certified because it is made up of planned participants rather than a  the representative party if you will on the case would be would dept parties attorney have had a common fund claim that parties attorney could and in fact did bring a common fund claim during the course of negotiating with the moment of the me so yes that attorney would have had to claim at this point that attorney has been fully compensated the full amount under the contract that he agreed with an equitable benefit that really is not entitled to know the city is receiving a benefit for which it has given given consideration in exchange under the plan and specifically it is specifically contract to force part of the give and take of the overall contract of the planet so the city receives the benefit in exchange for all the health care services it provides which is what's one of the things that asked for an exchange and that's one thing that makes it different than when the attorney brings a claim because the court also say that that the that's the plan if you will has been full they consider that the plan has been fully paid back and nationally in order to apply the comment on the the plan has received its recovery under its lean if that's what you're asking is that so that the contract law rights and liabilities are no longer apt applicable and so that the attorneys now they now turn to an act of all consideration for the attorneys is that right for the it well these are all actually handled in one bundle i'm not sure i mean usually these are all resolved together because she had these different claims against the parties but the city receives this recovery and the amount of the lien will be reduced by whatever that you know the parties agree what is left is that not i mean equitable amount it's going to the city the city is not receiving any more than the total amount of it's only if i understand your question the city has has paid its medical bills and it recovers you know up to the full amount of those often they are reduced though however because these claims are often settled that the the attorneys request a reduction of the right and so then that then that amount of the lean is paid over the city isn't seeking anything beyond that it is the attorneys or the participants in this case unlike other cases that is  but there is no case holding that as a matter of policy common fund doctrine unlike any other claim cannot be cannot be thoughtful and much less be settled for less than total one third of the lean in ste illinois have to say on the policy itself it is that public policy favor settlement there's no no reason the policy that policy should not be applied with full force here the sat a settlement in this cont doctrine is that's a reason for recognising the claim when there is an inequity that needs to be resolved not that those claims are fully exempt from defenses that would other wise apply to any other at them of what planes so that's not a reason to disregard policy is not a reason to disregard subtleness negotiate arms length and force in every single one of these cases with the representation of counsel the circuit court also erred concluding that common questions predominate over individual ones here of illinois supreme court's case and smith hold up the relevant inquiry is whether the common or individual issues will be the object of most of the most most of the efforts of the li that the fund is created as a result of legal services by the attorney for the sub or he did not participate in the creation of the fine and that the suburb you benefited from so the first individual question for each of these cases is whether the an attorney and is pursuing a third party recovery the city often recovers from the participants vehicle insurances medical pay uninsured motorist coverage under insured motorists coverage and sometimes from workers compensation recovery so in each case there needs to be an evaluation of where the city even recovered its funds from whether it was an attorney fund and second the court has to look at the degree of the participation done on a case by case basis as a summary the city's attorneys are pretty active in pursuing the liens and that they reach out to the insurance adjusters to they do their own investigations are gathering evidence and they communicate with the attorneys and and each case will need to be analyzed to see what and what exactly what role the city's attorney played in the case to determine if there's been substantial participation and third the reasonable value of attorney fees as an individual rights stefanski claims that this is formulated formulaic that this is always going to be thirty three and a third percent but there is no statute or case of contracting or contract that  and so it did all of that contacting all those sources up for twenty nine hundred dollars we do this it's something that the city does it as a matter of course we reach it we send out questionnaires to out that the city's attorney had a bill that that that participants counsel didn't have that not only supported an extra payment of the bill but support an argument for you know additional these are individual questions and if the plane just burden to prove that element so this is an end of another individual question and i'm beyond that there is the reasonable value of attorneys if there's as as i explain there's there is really no basis for this idea that thirty three and a third is it's automatic what the illinois supreme court's says in shelton's is that when the doctor the fly is an attorney is entitled to the reasonable value of legal services i but the amount in the contingency fee is not automatic because that's not what the claim is based on and there are a host of other factors that go into considering what is a reasonable value attorneys such as the skill of the attorney the difficulty of the  case degree of responsibility and the time of labor but in the case things of that nature so our point is that you at least have to look at the case in light of these considerations before the court can exercise discretion in determining what is a reasonable value of attorney particular case so these are more individual questions and addition there are additional questions about whether claims are barred by settlement there were some unique features in this fancy case that may not be present and others such as payment under protest or something with the fancy he did in this case and also how payment was handled in this situation with the pass along the offer with no intent of accepting it in order to get the payment city negotiates takes a look at each case makes arguments for its side about whether the doctrine of who does not apply and and in essence takes each case as they find them treat them differently based on what's going on in particular case at us or the antithesis of a uniform treatment of the common fund doctrine so we submit that there are a host of individual questions to dominate over any common questions in this case year limitations period you only get the ten year period under section twelve to zero six if you have an action on one of the specific listed instruments in that section on these common fine claims are not based on representative that only the attorney can well that's the standing issue your honor that that issue has been addressed and rejected numerous times it was rejected the there's no off bishop recognize that this is a public policy of the pulse of the state of illinois is that the common fund doctrine always applies to the whole thing as a sort of reimbursement claim and it would be unreasonable to narrow that application to the agent of a of a participant president to have a common fun with found to be applicable there and the courts went to if you will great lengths to make sure that either there wasn't preamp in  the attorney was a party to litigation it was not ok it was a party that got dismissed because they were paid in full but the term was paid in full and therefore the the the damages full and one that's not holding them back is the participants and for ford for the city or any other plan to try to narrow this type of claim to attorneys only is inappropriate  language in this case is far less explicit than the language that and that was included in the of the bishop case in this case there's no express rejection of the farm doctrine there's no much of the fun part from at all and in the plan language it just says that the responsibility of attorneys fees and costs would be the participants it doesn't say that they would not pay their fair share of them so that doesn't seem like a so you're saying that that to spends claimed it was not expressly contracted out at the country that that was not an expense contract that prohibits this but to spend from i'm proceeding because of their contract with the city of chicago the participant does not challenge the the city's right to a reimbursement that's that is in the planning room and that's that's in the contract they have a right to to reimburse cases and you know to touch on the participation prong the city does not participate at any level that would afford the up case of the fine doctrine which we've cited to numerous deposition testimony and even the agreement between the city and the the council that they retained just to monitor monitor these reimbursement liens which is carbon cocos that agreement says that we don't control these underlying cases and therefore we don't have a city has or how good it was has in these reimbursement lanes just protect them and we've decided fifteen cases at least in our brief there is many more that say protecting of lanes alone is not sufficient the application of the fine doctrine and that's all the city does in his case is all they do is issue the notices to make sure that everyone knows that they have only one and they will also provide copies they don't explain that they don't even try to explain away because or the crystal clear that if if your only involvement is to protect your own name that's not meaningful participation and it doesn't thwart the funding from to payment of fees for services rendered belongs to the attorney who entered the service and does not affect the contractual relations between the plant parts is that in the plan so how does that in the plan benefited from the services of an attorney and headed back those services directly to report that money there's no way that they could just walk away and say we're not going to pay you and so in this instance if one of the participants you know can trash without service in the city sits on the sidelines and doesn't bring its own action or doesn't issue a tiny letter all of this is a it is of a basis it's just a premise for the fund doctress not a sort of elimination of the participants rights and it's not knowing the rights just attorneys alone who are just clear they were making that comparison just like there were also movement making the statements that both the participant and the attorney are are are what causes the the creation of the fun without right so that's the result and you know that's a that comparison i think is further support of all the other arguments that we're raising here just to show that standing is not only  have been crystal clear a long time ago that issue has been raised in adjudicated several times in state court and there's no expressed language in any of these decisions a says this is the attorney's only and there's the only from the efforts of the year tourney and the participant is there a fun created you create a form with other participants the term is only the engine of the discipline so to to limit the fun doctrinal claims and just again the form doctrine is not a way to poll flame it's public policy they try to argue that or they do argue that public policy favor settlements but it makes no sense the ply that to another public policy that bars actions that would be otherwise illegal and it doesn't make sense for an act  should be paying the attorney that fine that's the nature of a common fund doctrine and to the extent smith is is in contention with that obviously the illinois supreme court cases i should be followed and with respect to bishop unsold and my posing counsel mentioned today that these were claims that petition for attorneys and they are fairly characterized at the supreme illinois supreme court said as claims brought by the attorneys and i won't go through all quotes and details but on page three of my reply brief i point out several i don't recall that he had been fully compensated and then that just that was carrying on with the second claim as as the situation that we have here and asked for help cost control that decision just simply does not address the any i've read it several times  and it just doesn't address the ending it you know at best the court didn't decide the issue you know ignore the issue because they didn't need to it was remanding the denial seraphic ation did not hold that the class was to be certified reminded it because the lower court had not considered the appropriate factors it and denying the certification so that this was an address there the one case it was addressed so it is not an illinois court case but i would i think it's very claim to a common fund claim so we said that when you have a plan such as this which precludes attorneys recovery of attorneys fees by the participant that plan can be enforced there's nothing you consistent with