practical matter we never agreed to that to the government proposed by class council and you didn't answer my question why didn't you just opt out why don't we have to i think we're a little hamstrung here in telling the full story because of the mediation privilege with a plaintiff to bring a class action so a cheap and thereby foreclose other class members from bringing individual actions that would cost the defendant a great deal more  yes is there anything in the record to suggest that this is such a case circumstantially yes i mean we know that before this class action was filed mr grubman one of the two class counsel negotiated a little gated the exact same claim on behalf of a single prompted to settle the class action because they knew of their exposure from the prior case and i think if you just if you put that perspective on the table and then look at the fact that the ultimate settlement was forty million dollars above what class council negotiated cheap really cheap  because is there any more well those are the only facts that on the record with respect to that basically i mean basically we know that the a similar claim had been brought settled and the evidence on w in large part because of the conflicts between class counsel and eighty five percent of the class class counsel did not do an adequate investigation those those that those facts alone i think compel revers but come back to your question as to whether we are good they were not to have anything we argued by virtue of their conflict of interest by virtue of the fact that they were suing us they were not entitled to anything that came from our eighty five percent portion of that on the settlement plan and action you don't know who most of the clients are i mean you could be all over the country you don't know who they are and also their interests are so small that there's no likelihood of there being any division of loyalty either in an absolute monetary sense or a percentage of the recovery sense but those factors are absolutely flipped in this case here the major is comprised eighty five percent of the class they own eighty five percent of the works and they were so clearly for the purpose of this case what i would submit is the this is the most compelling set of factual ever see as to why and then class members should be considered clients if not here it'll never happen in here it's eighty five percent of the class it's a handful of clear error of law a clear air of judgment rather was committed that's an extraordinarily high standard particularly given the fact that this p was awarded by one of the most highly regarded district judges in the central defendants infringement prior to the proposed settlement in two thousand and three and then they repeat this misrepresentation at page thirty seven no notice to the inclusion yet counsel  that they were to busy through twelve year old girls began learning songs from the internet so you're saying the reason they did not drawing you was plainest is they were too busy suing twelve year old girls and and i thought you were suing them four and the record shows in its general brief that between two thousand and three when they first surfaced after learning twenty five point four million dollars was on the table after they learned that they were lawyer in a class action has an attorney client relationship with the putative class member not a single case and maybe i can and i am not so sure that it seems to me we had a case recently on discovery of medical communications where we did say just that and the lawyer said basically said send us medical information as to that we can decide whether to include you in the class the clients sent the medical information the defendant tried to get what the prospective clients that sent the lawyers to the lawyer said it was privileged and we greed because i'm not familiar with that everybody that bought the stock in a company between two dates you have no idea that it's the same person and the person is a trivial part of the class action but this is different these are the biggest copyright holders at and you obviously know who they are i don't really see how you can it seems like this is like when somebody walks in your law office and you just have to take a choice if you take their case you'll be had acted directly on their behalf if they didn't have independent counsel from the moment they served as maybe you could make those arguments but they didn't come to us and say we have injected a class and we want you to go back and more a higher in respect of the species it was never asserted in the district court either in this case if or where it should have been in the mat right ok is where he should have come in and said if they really believed that hey you can't do this you're a they got the settlement and way way up of course we want to know why well i want to know something a little different i want to know did your clients the smaller sellers of m people we called or did they get more money yet out of the higher settlement or was it a matter of that they could they split up the same money now and they got big or you skipped get the entire difference they got they got more money they got fifteen percent of the sixty five million as opposed to fifteen percent or twenty five minutes and they wound up with oppressively five million dollars more because the ledgers involve themselves cooper that we shouldn't get the twenty five percent that we asked for he sat down and never said one word to her about the powerplant of interest there was no argument whatsoever and she didn't respond to it in a written opinion presuming as i think was fair that they had abandoned that argument so you have there for their failure to appear on the madeleine oks or even here happen unless they got eighty five percent of the money well we did a do diligence i know the record of this case to determine that they were entitled to eighty five percent of either the publishing or the for the class and made sure afterwards that the class was adequately protected and that absolutely as you know from my previous question to your adversary i always worry in class actions about collusive arrangements between  counsel and defendants it's just so useful to a defendant to get sued in a class action if they can work things out with class counsel because they can shut down everybody's claim what is there in the record here inconsistent what what why would we asked the major is to join us in the prosecution of this lawsuit if the idea was collusive take school be run out run up the amount no no not that the idea is to exclude the you didn't understand my question in the end big time p r with the little bit of involvement i had on the plaintiff's side one of the irritating things that happen would happen is basically the defendant would try to bribe the warrior to throw the case for his client  doesn't work so well if your client is an actual live person they have a relationship with across your desk right in class actions there is no life client's tearing across the desk ready to get mad area so it makes a whole lot certified and that's the difference between our settlement and theirs they had four big guys with lots of money who came in with their own wall street lawyers and they were able to sue without any worries here what's the evidence of a b c was really fighting on that smaller settlement that we couldn't go to have to rely on judge cooper who went through the painful process of continuing time after time the approval hearing because we were continuing to negotiate the nuances of a very complex settlement which had two classes one class for composers and publishers who won it last for sounded as if as i recall there was never a deposition that's correct we didn't will ration from them they volunteered declarations for we i think we asked them for declarations and moved up positions and they gave us that how many hours did you show ime of course one of the things we did for this class was to go back thirty years of copyright infringement and been going on it's a purposeful practice on the part of a b c for thirty years and we got all of those people compensated going all of the music owners for all of their soap operas would be barred from ever suing them that's a leave voluntarily or that hey we didn't just steal music on general hospital we store music on a whole lot of soap operas and here they are i have no idea i have no doubt a case in which we could not even identify the sound recording numbers give you an illustration it on general hospital they played an extract of white christmas eighteen months with no depositions to get twenty five million them sound like that hard time well it's because we're looking at tens of thousands of documents and then really more most of these music owners are an awful lot of the little guys they're going to be dead nobody even around to get the money they've got the or four people they present an enormous amount of complexity what if the money went to the publisher how did we ensure that the composer was going to get his share of the publisher's payment that was  complexity and the strong writer side we couldn't figure out in many instances the future didn't show whose record they shove they used to record a recording of white christmas and there's eighty two people that recorded white christmas how do we know it's in title of the money that class would never have been sustained that's the dominant probability and that's what we were bargaining against the likelihood that the sound recording class the chance of getting that certified was almost zero and the other one had a chance of getting certified but it was really difficult because of all the complexities that the multiple composers and the conflict between the publisher on the one hand and the composer on the other so it's very difficult situation fall we had cases say twenty five percent is the benchmark and you could go down and you could go out and you also take a look at the lodestar man and while i may have you know taken that failure of the majors to lift a single figure to help us get more money that the twenty five point four million it's an insult for him to come here stand here and say that we left money on the table it's they didn't step forward and that's she made very clear and we were of very much influenced by the strength of the arguments that the inability to identify the sound recording class members would have assured that class filed this class action after he just finished litigating the franklin case over the identical copyright issues against the exact same place same defendants and he said the franklin litigation and i'm quoting now which ultimately settled brought to light documents and relevant information equally even though that's an alternative measure of damages they never followed up on evidence of willfulness even though they quoted some evidence in their class action complaint some internal a b c memo said they didn't interview or depose anybody they v s e to develop additional evidence of willfulness which would with with an expert who gave them some notion of customary license fees they were way too low they never picked up the phone and asked us what our customary license fees were and had they done that they would have known that the potential damages were much much larger think given all of these factors given the inadequacy of the investigation given the forty million dollars left on the table we know that the result was exceptional only in the sense that it was a cheap settlement achieved with very very little time and i don't think you you want to  rm here and create incentives for class counsel to maximize their fees minimize their work and then put the burden of all the heavy lifting on the class members who is interested they basically abandoned  during the class element by taking a very very low settlement now with respect to the conflict issue i'd like to draw the panel's attention to e r six ninety five paragraph twenty four of patricia's parents dr ation where she lays out the cases that were until january two thousand and two during this i don't steiner's government talks mr bleacher filed the greenberg case against the majors in october of two thousand the case is still pending he filed  the preston vs columbia case against some of the majors in february of two thousand and two during the time that they were negotiating with a b c about their argument that if you thought there was a conflict of interest it was incumbent on your side to file a motion for disqualification well reasonable settlement and we put them on notice that we're going to jack to their i don't see why we had to do more we could have done more but that's certainly not a waiver on our part of a conflict of interest on usenet i mean i am if i  somebody that i'm representing back when i was a practice at when do this but if i did i would expect them to move to disqualify what we did as a lawyer in the case and if instead what he it that's when we become involved in the case we do our own investigation they're not involved we clean up their mess and we put them on notice that we're not going let you benefit from the inadequate work that you did prior to us getting notice like everybody wants to a good part and not the bad part they want the good part and not the bad part you want the good part but for their counsel they have a plan an attorney client relationship with us and california law is quite clear that you're not allowed to benefit financially it's not clear that it's not clear to me that there was an attorney client relationship ordinarily are not in a client relationship because of the difficulties of knowing who the clients are and because of that the modesty of the interest of each of the unnamed class members those factors are one hundred percent reversed here we have four or five companies that are clearly known to them at the outset of the litigation who own eighty five percent of the claims that are issued here and if there is not an attorney client relationship under those circumstances then the commentary  purchase san bernardino police department quite simple there was no opposition a trial there's no opposition on the appeal i think respectfully judge altera looks at a rule forty two consolidated my case and issue that had nothing to do with the claims that was set forth in the earlier case where the clay case of retaliation it was similar in nature because the parties were the same other than