the district courts may twenty eighth two thousand and fifteen remedial order which followed this court's ruling in appeal number one was an error and should be reversed for four reasons this is not a common fund case as this court determined in appeal number one second the t c p a statute does not provide for fee shifting further because congress not provide for fee shifting in the statute allowing the class to recover the full amount of five hundred dollars per fax per of fending facts in a nine common fund case inescapably violates the american rule against fee shifting for  no possible application in this case so not common fun case the injured parties are identifiable and there are no unusual circumstances that would warrant application of  unfortunately remained to address the remedial issues in this case from appeal number one the district court got right only part regarding cypre yet issues regarding  inextricably tied to this court's conclusion but this is not a common fund case nothing in the briefs that have been submitted by a pelleas squarely addresses this fundamental issue which is controlling on this appeal this court ordered the district court to evaluate the way in which class counsel are compensated in light of light a boeing vs being but importantly boeing versus van dam or proceeded i not common basis because unlike here boeing lost its right and interest in any remainder of the funds which were unclaimed that's absolutely the contrary to the circumstances we have presented here so i want to make sure i understand your argument just normally how a judge directs any remaining money would be reviewed for under the use of discretion standard but as i understand your position the judge thought our previous decision meant he could not make a cypre award so he was acting under a mistaken understanding of the law is that in essence your argument that is your honor and a mistaken understanding of what this court determined when it said and rule in this case is not a common fund case and i think with all due respect to the district court and i attempted to raise this issue twice unsuccessfully with the district court while the vast majority of class action cases proceed on a common fund basis and the high ninety percent this is the rare case that is did not it's a contested case and it's a contested case which we properly appealed from this quote judgment to the class which was a non judgment it was a procedural vehicle by which the ultimate maximum amount attenti recoverable was to be secured we have secured that fact as i tried to but the second time i'm remained with the district court to explain why this court had determined this is a common fund case and the importance inexplicable importance of that with regard to attorney's fees the court found that there can be no cypre because there can be no remind remainder but the reason there is no the the amendment with regard to the two remedial orders he initially understood and cypre as it is tied to the common fund doctrine but never address the issue that this is and that common fund case and the court struggled with boeing versus van dam or why because procedurally boeing versus van dam or is it's a procedural oddity simply because boeing failed to preserve its right to appeal this very issue and by failing to preserve its right to appeal this very issue the us supreme court made it clear that boeing had forfeited any interest in the remainder of far right and the court treated it as a common fund case even though it really was precisely your honor so here we are in a case that has been determined as a matter of law is a non common fun case all of the rest of our argument follows from that determination cypre attorney's fees violation of the american rule and the only the only way to a have escaped those conclusions is if the t c p a statute provided for shifting which it doesn't which makes it inescapable that an award of the full five hundred dollars per offending fax to the class members necessarily violates the american rule and that basis unless or any other questions from the panel we stand on the rest of our submissions out deal with the rest of my argument to extend necessary in rebuttal thank you thank you entered in favor of the class representative acting individually and on behalf of the rest of the class members and the court affirmed that judgment the court reversed however a subsequent order entered by the district court that was a remedial order that talked about distributing money for cypre and this court said that needs to be reconsidered because it's not just the big fund of money to be handed out or people want it needs to go to the class members first it needs the benefit the class members most importantly and you know cypre is one of the things that could be considered considered at that point i have a hard time understanding how this case is any different than boeing versus not a common fund case ok and boeing's about common fund cases and footnote five of boeing makes that is clear is clear can be and says if the money is just going to be used to security for individual payouts why that's another problem well that's that's not what's happening here what's happening here that's certainly what the district court said is happening here is what we said is happening here i don't understand they are what happened in this record says the money is being used to security for individual payouts that's what it means to say that each class member gets compensation for the number of faxes received and the rest of the money goes back to tourism that's that the district that's using the money as security that's exactly what boeing was talking about in can't get anything back if it gets anything back it can't be a common front case but both of these things can't be right of launce ok i mean there have been some courts that said reversion to the defendant is a an alternative even in a common fun case but doesn't have to get a sheet it doesn't have to go to charity it could revert to the defendant and that's how the district court read this court's opinion that the first time around was that if it's not if if it's not a common fund case and this court s then you can't have cypre and you must give the money to charity but you agree our previous opinion didn't foreclose cypre on the remaining i mean we argued that it didn't the the court's opinion identified what to do if if there's money that we can't distribute and the parent just told you that the class members are going to five all the plan is to send everybody bear a proportionate share based on how many faxes were received by this fax number they will get so there was a judgment entered it was affirmed after the appealed and remained tirzah deposited that money into an account under the control of the court and the proposal is to distribute it and one of the parts of proposal is that we would get paid attorney's fees from it and whether you talk you know i'm not really sure why it matters whether we say it's a common fund or we don't say it's a common fund we the money is there we know who it belongs to and and the attorney's fees would come from their money not from ters as money because it's not true as money anymore you already lost just like boeing lost and didn't appeal to as of last did appeal but lost on appeal and so we're day we indicated in the prior opinion that tirzah did not give up his rights in the remainder and i mean i'm not talking about the remainder i'm just talking about the judgment of mouth was right but if  he's got a right to whatever is on claimed by the members of the class then it can't be a common fund case as we said it wasn't a common fund case and there's nothing to people and so on are cross appeal the only issue was that we thought judge gettleman could should have had the discretion to decide what to do with any remainder if there is any remainder nobody knows whether there will be any remainder last not yet submitted their claims no we have not there's been constant appeals we have the court approved the proposal that we made now now i'm worried if a class hasn't submitted their claims and the district judge has not yet made a final decision about who gets what do we have a final judgment well i mean we we did move the appeal before that's we have an order that was ordered us to distribute to notify the class members send them these forms send them their money and and judge gettleman denied their motion to state that but they but the defendant appealed to this court and this court been notified they know the amount that has the court in there and order totaling those amounts yes yes we just haven't actually distributed any to know whether the money sent to jim smith doesn't get cash because he it's a problem in this in these shocking mental filings the party should describe sack one the procedural posture ok right we knew at the time of the prior appeal that class members had been notified and some had requested exclusion because we haven't said how many people have talked to that the question that sparked my question is as part of this opt out process do people actually s concrete claims to paint or have they not done that they have not and it's because they don't need to we have a list and it says this this is the fax number of such and such a company and they got that many faxes and that was already established in the first case so they will get a check for that times five hundred less attorneys and if they're if they're all just getting checks and there's no further step then almost by definition there can't be supplement or appendix number eleven is the proposed notice of judgment and attach claim information i think the confusion that was just raised deals with the fact that this is what was called a do nothing distribution and it said do nothing distribution which included an award of a lump sum attorney feo of one point roughly one point four million dollars which was based on a common fun theory was erroneous and so if we didn't appeal the money would have disappeared for ever and the fieldwork would have a plot so we will supplement as the court has requested but i think there's a simple answer to why we are here and why rules of professional conduct it does not spell out how the attorney's fee is to be calculated consistent with this court's ruling nor is there anything in the record that quantify says the requisite consent in rules are doing in this case we held more than twenty years ago that the illinois rules of ethics do not apply in federal classic are you asking us to overrule that decision not your honor but i don't believe that you are paying any attention to it that's rant against monsanto in the noncom unfun scenario where we have this procedural device that has been used here we would submit that those rules do apply at a minimum there you're saying you must be asking us to overrule rand i'm certainly haven't made such a request you know your honor what i'm asking is that what is communicated to you should the federal class actions proceed under and state ethical norms can't change federal class action procedure period and the class notification needs to accurately at a minimum describe the manner in which fees are being awarded and on that basis the notification is erroneous and the order should be vacated if there are no other questions i would stand on submissions thank you thank you we will look forward to receiving these memos in fourteen days when the case will then be taken under advi