rebuttal we're here today because the district court to have your ten year long years of litigation and after recovery for the plan participants of one point two eight million dollars in plan benefits  that in two thousand and three had been these plans participants had been told they were going to literally get nothing after ten long years of litigation from two thousand and five to two thousand and fifteen and actually two dozen fourteen is when the order given in two thousand and ten to counsel it's your time is ticking and forgive me for interrupting but at least on my scorecard it's going to be really important to distinguish this was around three and so much of your argument ending ending your briefing as well harkens back to the beginning but those are what i'm calling chapter one and chapter two ramn round two you want and i and those fees were dealt with so at least for me i'm just speaking for myself i'm looking at round three well i think it's important to look at it from all different perspectives because i think no matter what perspective you look at the district or got a wrong in saying that there was no success in this case that could you could you just hear me ok i'm free and i guess that because i agree with you my understanding of the law is that you just have to show some success is not prevailing party that or right and and so i'm looking and then and then and that's a threshold decision some success on the merits would trigger the home factors in this case the judge didn't get to the whole factors so i'm really focusing on that finding which was that your client didn't show in round three success on the merits if you think i framed the question incorrectly please correct me but i think that's what the judge was answering in round three i think that that's the on that i'll give you that because because in round three your position was look they're still not in compliance they were right they in round one they were told around two they were called i understand that but he was still really just answering  the that they were trying to short change benefits by not paying by not grossing up as the court used it for fica taxes which ended up being a benefit of ninety seven thousand dollars in additional payments there's one point three million paid in benefits but also ninety seven if they were told to pay that in round at the end of round two exactly and they hadn't paid it and they challenged it again that's my first question did the payment of a medical fica and medicare medicare that those those two elements remained a contested point around recommendation not that i'm aware of in fact that's why the first order because they're contesting claiming in two thousand and twelve that they shouldn't have to pay those that that should be reconsidered and then when that water comes down and says that those do still need to be paid that that's what the meaning of the two thousand and ten judgment was a motion to reconsider on that point and put it again before the special master special master had to then say in fact at the end of the special masters ruling the special master said one of the reasons why when i was discussing attorney fees which i got completely wrong as well but in discussing at least it pointed out the fact that it was part of the reason why there is bad actions here by the employers and continuing on into this third phase the litigation was how they continued to fight this issue of grossing up ok so that skirmish about that particular issue  is folded into the special master suite which they had to pay but did the motion you're talking about way they requested reconsideration and continue to press this point did that float up to the district court so that it took some of the district court's time was that resolved by the special master well it was certainly a part of the special master so in other words why wasn't it captured by the award of fees for the special masters work because all the work that the special master was doing was on behalf of was was creating all these litigation fees for the plaintiff's attorneys that's why i'm asking you counsel if this issue continued to float up what i'm calling is followed up so that it was part of the district court action as opposed to being sort of a satellite issue that was being handled by the special master over here well field the district court order then confirmed all of the decisions made by the special master which had been booted out including that the special masters fees were going to be paid by but in the special master proceedings i mean across that or in the district court if that's your response right ok everything since two thousand and ten has been paid so when you say everything that's not really right you mean attorneys fees happen because the special master sees where an actuary fees were right right over there contested again contested by the the i'm pretty sure employers ok i'm really getting in your way and i don't mean to but can you tell me i asked you what your strongest argument about this threshold issue about some success on the merit to me just talked about fica and medicare so what are those remain contested and that you ultimately prevailed what what's your next best argument well and then continue to win the battles in front of the special master or the special mastered determine which was a ultimately ordered through the district court accepted these recommendations to prove that there had been violations of what had been ordered in two thousand and ten that they still weren't compliant with arista they still weren't providing a defined benefit plan they were providing a defined contribution plan because of providing a defined benefit defined contribution instead of a defined benefit plan as had been ordered they were then underfunding because there's greater requirements for funding and that they there was no protection by the p g b c that for the benefits of th  had been ordered in two thousand and ten so all those violations were found including again found found that the benefits were being shortchanged by not wanting to pay these fica taxes and so then it's that finding that then results in we've got to find a solution to it and the special master suggests a solution that then the defendant supposed stated by the court in his order defend as opposed to solution of ok well if you can't find a way to comply with my order i'm going to liquidate the planet we're going to pay benefits now and not in whenever people die or retire because so how did the district court abuse his discretion by saying that because the special master came up with the issue some success on the merits and then there would have been application of the home effect if the judge had found that you were qualified as having achieved some success on the merits with the judge of applied those factors and still  resolve this the way judge ronson is anticipating which is to say you didn't come up with a solution the special master did well and there is no such you didn't come up with a solution what the ninth circuit said several times that it's the result that matters not how you get there it's in the result that matter was a you've got all that the counsel i'm asking you a different question if i give you that there should have been a finding that you d plaintiff's counsel and by defense counsel and said if i've weighed these factors and i don't think you're entitled to fees could he have done that he could have done and certainly he should have done that's what should have happened as he should have looked you know first found there was some success and then gone through the  factors from home but the fact is and how all support our case and that's what we've asked this court to do is to do what it's done many times in prior cases just find that this record didn't properly if i applied almost back to the fact didn't even get to them here  two policies that we're trying to implement here one being that plaintiffs are made whole if you don't ward attorney fees to attorneys that succeeded in getting to the result that the plaintiffs here got to which was getting paid all their benefits without fear of underfunding being shortchanged now being subject to insolvency the business all things found by the special master and ordered by the district court then if you don't award attorney fees then they are made whole because they're getting their one point four million dollars in benefits but then they're having to entertain a hypothetical which is that you won all of that after round two you're entitled to all of that after round two and that if a judge in a hypothetical case applied these factors and decided that it was plaintiff's counsel that bore even perhaps even a line share and i think that all of causing it to take a reasonable period of time to work out the details could be denied potentially that would be within the discretion of the court but the court would have to say that and the court would have to back it up with facts and i can't point to any fact in the record that would support that conclusion that the plaintiff here is i could go through a litany he didn't i could go through a litany of who did this and who did that and what i can what i'm going to do instead is to fees for example to the defendants it in two thousand and ten he said here's the successes the defendants allege here's why they're not successes are trivial or and or that they're procedural he went through that analysis here he doesn't do that analysis he ignores our success in recovering the  now what again what they were being reordered to do but it didn't actually result in what was supposed to accomplish and we prove that in that last stage of the litigation that it didn't result in a fine benefit plan that was supposed to be established it didn't result in them paying benefits as they were supposed to in terms of both the accounting for both the double death benefit and also accounting for the fica taxes and that it wasn't protected against insolvencies of this business went up at any times potentially would have lost all these benefits that had been reordered in two thousand  so that victory was hollow that victory was hollow its the victory in two thousand and fifteen that was the real victory that's the victory were actually what had been ordered was put in place in the district court even says that defendants have now finally complied with the court's order that's in its own ruling that then goes on to say despite the fact the plaintiffs got us their place attorneys got us there through five more years of litigation they don't get any award of attorney fees based on no success on the merits despite the fact that there are i could count in thirteen different successes on the merits in the little battles along the way just in the two thousand and ten to two thousand fifteen and in two thousand and fifteen they won the war they got their benefits that weren't no longer subject to insolvency i want to say a little bit of time for a bottle  degree of success on the merits and therefore he did not reach or go into a litany of other facts in order to justify his decision he relied primarily upon the decision  of the special master in his first report and recommendation and even though he didn't say so his second report in recommendation because this was a case in which the special master had to be involved twice not only once to determine as it were used to address the issue of whether or not a defined benefit plan could be put in place in order to pay benefits to those people who were still employed by a police or by the stinker stores but also the second time when the special master had to come back again and determine  that what he said the first time so far as the discount rate to be used was not what the appellant's attorneys in their expert mr turpin claim should be used in order to discount the present value to pay the lump sum and so i mean that that gives me some pause because i can easily understand why the district court particularly given its expressed exasperate with this case decided to implement the recommendation but if the recommendations not built on a solid legal foundation how can we sustain it well i don't think i don't think that it would sort of two questions in my view or the question of whether or not attorneys fees should be awarded the comments by the special master were just a fact is something that the district court considers could consider i suppose so but the special master didn't go into the determination of whether or not there was some degree of sex and the district court didn't either it had before but it didn't this time which is what leaves me wondering did the district court simply say and speak bluntly or the district judge in question is is known to be patient and thorough by personality it's that there are i have colleagues who are more likely to do things in a fit of frustration than this particular judge and yet he did not try to touch the bases with regard to applying the legal standard which is why i wonder if he simply at this point decided to apply what the special master did i don't believe so i don't believe so in a the judge will started out his order by first of all stating you know after getting past the mr turpin issue in the early part of his order  recited the correct standards for consideration of whether or not attorney's fees should be awarded citing the simonian case and then also citing the heart case which was decided just a matter of a short period of time before the success on the merits by the plaintiffs or the appellants attorneys here and so therefore he was not going to award attorneys fees to the opponents or the appellate attorneys and you know when he was looking at the relevant time frame he wasn't looking all the three at the beginning of round three that's opposing counsel's argument they'd won round two and they didn't have the benefits they were entitled to so it was necessary for them to come in and initiate round three and there was certainly resistance throughout round three so at the end at the end of round three of course they prevail cash in hand so why isn't that some success on the merits well first of all i think we have to look at what the amidah judgment provided for  appellants the minute judgment said put in place a qualified plan to pay current employees benefits when they reach age sixty five it also said either buy annuities and then over for  course of five years over the course of five years or negotiate lump sum settlements with participants who want to receive a lump sum settlement all of those things occurred what occurred first after of the amended judgement was the appellant starting to scream about this plan is not funded this plan is not adequately funded this plan should be a defined benefit plan and the resistance from the appellee side was we can't do that we cannot we already tried to put everybody into a qualified plan even before the judgement by adopting we're trying to get the i r s to approve a b c p l placation to let everything go back retroactively i agree and i and i recognize that your prevailed on that legal issue and the judge even said i thought that might be a problem so i agree but what proposal did your team come up with that would have satisfied the obligation and if not that proposal was made just just continue to be able to have the qualified plan in place that would pay benefits to those employees who are still with the company when they reach age sixty five or a death benefit in the event that they passed away earlier or as occurred in some instances no let us pay you lump sum benefits reduced present value and they accepted two of them i'm struck that this hadn't been worked out and i don't mean to suggest i think it would have been easy but it hadn't been worked out it was round three they came in requesting the appointment of a special master because the parties hadn't been able to work it out it was denied except then many months later a special mauser was important appointed because in fact it is a complicated pretty sticky sticky wicket and and then ultimately the special a special mass rule given the standard here which is just some success on the merits what's your strongest argument that that is a defensible finding well because what i have to go back to i think is that the the language itself some degree of success on the merits and basic basically is in allows the district court to make that determination through the exercise of its discretion and here the district court exercise discretion and said i don't believe that they passed that threshold and so therefore i'm not going to even let me i'll cite the humble factors but we don't need to go through them to the last of the  much fact bases anything else in because first of all what was offered to those people who were not employees within the appellee companies was annuities those were offered to them at the very beginning and they rejected them they wouldn't allow their clients to accept them three of them brusquely newland fisher all the way along claimed to be entitled to more and even into two thousand fifteen in early two thousand and sixteen claim to be entitled to more then what the special master alternately determined to be the proper amount discounted to best spent discounted to present value that they were you know at least trade i will say i will say but he says six years we paid the benefits to everybody in two thousand and fourteen two thousand and fourteen even knew we paid all the lump sums out of the qualified plan in august to september of two thousand and fourteen that was after the special masters decision and we paid all the lump sums or tendered them to council for the appellants in july of two thousand and fifteen she's me two thousand and fourteen all of those payments were made i make sure i understand here for example we talked earlier about the fica and medicare as the example with all of that paid at the time you're talking about yes so your argument is that the special master makes reference to that commenting that defendants objected longer than they should have but you're telling me that didn't extend into the what judge kristen has called around three no  still within round three but you know at least the last thirty seconds around three consisted of the appellant still claiming after the special master second report recommendation that the discount rate was too low and should be higher in order to determine what the lump sum amounts were i'm still trying to focus on this some degree of success because why isn't it the case that that pla can argue look there was a fight over the fica and medicare it got resolved with our clients position being adopted so our clients are better off as a result of our efforts and that constitutes some degree of question is that some degree of success yes and i think you do what they want the court to ignore is that for the nine employees who are within the qualified plan fica taxes are an issue were there were i think three the record shows that there were three individuals who were still employees the company who wanted to receive a lump sum but because it was a lump sum paid out of a qualified plan fica taxes were not an issue there either  very early on in round three at the very beginning of round three there was certainly consideration and discussion about payment of the incremental increase in income taxes but we could never get there because we could never reach agreement with the appellants attorneys about what amount would satisfy a lump sum payment to them or an annuity because they kept insisting on death benefits it was denied and then ultimate of special master was not appointed for many months is that right i don't think that's correct i'm sorry you think was deferred no well he's what i think what the in compliance or in the process of going to his way of complying and then you know provide me with briefing that shows me how you are being your are you are complying with the judgment and if i determine this is judge windmill speaking if i special master found fearless was not in compliance right we couldn't i'm sorry it found it it couldn't with respect to the paul five plan that's where we started this conversation i think that's right that there were some legal impediments that's my question and given that what did you or your team offer what did fearless offer in order to provide plaintiffs with the benefits to which they were entitled well we've offered and put in place the qualified plan for the nine employees who were still with the that was gutted it was intertwined with they wouldn't accept what we were offering because it didn't include the consideration of the death benefits and so it just got intertwined with that isn't is part of the same argument but certainly separate parts of taxes during round three before it went to the special master do you agree with opposing counsel because you're not to have another chance and make sure you get yours your position on this do you agree that the at the end of round two fields have had been ordered to pay those  i think the amended judgment talked about tax consequences in about taxes i don't believe the amended judgment which is in the record i think  got it written here but i don't believe the amended judgment re cited anything about fica taxes specifically i'll check thank you counsel thank you counsel thank you any other questions it appears not  to respond to i think this if this decision the district court were upheld we going back to would be contradicting the hard case because we would be creating some sort of a new standard that if you don't suggest the right remedy or the that the court uses that then you forfeit all of your attorney fees which is all the district court said in its decision for not awarding attorney fees here was that we didn't suggest the right remedy even though we did suggest the remedy that we received in this case was which was to receive all benefits paid in full without risk of insolvency without underfunding and the special master found those exact things that there still was a risk of insolvency and there still was underfunding as of two thousand and thirteen which goes takes you all the way back to now the  benefits were taken in two thousand and three and were in two thousand and thirteen the special master makes that decision ten years of of risk of insolvency ten years of underfunding of a plan and not compliant with an order in two thousand and ten the cases in the ninth circuit have repeatedly said that of the value that comes out of these cases is in plaintiffs proving violations of proving and recovering benefits that's exactly what they did in the third stage of this litigation and so to claim that there was no success on the merits is it to ignore the facts of this case and this it would send a tremendous chilling effect through the plaintiff's bar interest litigation if we were to say that when you prevail and recover all your benefits and you get exactly what you started out trying to get in two thousand and five and it takes you ten years to get there that you only get paid for the first half the litigation the first five years and you don't get paid for the second half and the first litigation got you a piece of paper and got nothing it was the second five years that got you the actual one point four million in benefit and reimbursed taxes that's the the real victory in this case and that's what these plans attorneys are entitled to to recover and to make the the plan participants pay for these attorney fees again with then we go contrary to all the policies that in place in these arista cases all the way back to got all their benefits and they got the result they wanted it hadn't asked for that remedy but they still got the result they wanted this is exactly you know very similar scenario where we asked for a remedy or as a result the remedy to get there was slightly different to what we'd asked for but in the end we supported it and we got it it was the defendants who opposed that ronnie as you'll see in the court's order adopting the recommendations the court gave chance for briefing to oppose those recommendations and in the court order it pointed out the defendants opposed that