representing the allens in the south ways and their appeal from the fee decision of the district court i would like to focus on for errors abuse of discretion in are based on that decision the first point i'd like to make is the court erred by failing to make necessary findings on important goldberger factors  a factor that is deemed the foremost factor is the amount of risk the district court did not make any finding on the amount of risk what the court said in it fee opinion is that risk quote arises primarily from plaintiff's difficulty in establishing liability and damages that's true in every case in this case you look at risk and walkies you look at risk from the beginning of common fun cases from the beginning of the action in this action there was no government case to work off of as is typical and common fund cases there were no investigations by the state of vermont or the state of new hampshire the federal government did do an investigation it took a bunch of depositions but it failed to bring a suit and the amount of risk was very significant in this antitrust case the market definition the approach that we knew defendants would take to the case and as this court the second circuit said in the bowl or case if we are to be satisfied that a district court has properly exercised its discretion we must be informed by the record of why the district court acted as it did this is why in the context of attorneys feel wards we have demanded quote specific reasons and quote when a district court departs from the lodestar figure which is strongly presumed to be reasonable well the court departed from the lodestar figure it granted  counts of forty percent of its lodestar counsel's lodestar and the same lack of finding of fact required by goldberger is true with respect to the magnitude of the case and the complexity of the case though this court has said many many times that the the complexity of an address cases is inherent the magnitude was recently referred to by mr pearson with seventy some depositions that were five million documents it's been seven years of hard for you district court was on aware of the magnitude and complexity of the case after presiding over it for eight years it was aware of it it didn't make findings on it any more particularly my focus was on the risk because the court didn't frankly appreciate the risk that that was undertaken by counsel to file this case i mean there was a history which is not in the record which we'd be happy to tell you but it's not a record of how it all came about but no government entity filed a lawsuit on behalf of these farmers we filed this lawsuit on behalf of the need to make a more specific finding well what i would have hoped for and it actually is reflected in the record here not in the fee opinion because the i read you the one sentence  the fi opinion but in the settlement opinion on pages ten eleven the court discusses risk and the very significant risk that the court observed all of those risks were that if this is an interesting thing so the court says in the settlement of penny and that well you know this is a case that you might well have lost so you get more fees because you brought a not very good case you know we get fees because the purpose of granting fees is to incentivise counsel and those who get the benefit of counsel services are paying for those services through the fee those are the two basic reasons for the fees this court has said many many times that lodestar is pre this case you and you know a lot about it now having just heard it it was a risky case to bring on day one and for seven years of litigation and all the work that in the wrist it was under  taken forty percent of fees doesn't measure up to the standard that this court has had indeed we searched the record of the second circuit and did not find any common fund factors and gives this court the opportunity of not sending it back but granting the lodestar which has been done not kids up and down the second circuit it was done by judge easterbrook in the seventh circuit and district court is vacated in re mandated for reconsideration of the appropriate attorney's fees in light of these factors in gold star i said she did that so she reasons therefore they get therefore and the risk is x don't know what's the risk is well the fact is their record is that the court did not make a finding  i make a finding on certain other things i haven't got into but the court made errors in law and findings are the applicable law in and considerations it did have you would vacate it remained there for reconsideration of attorney's fees in light of the goldberger factors and certain other areas which are are in our brief but i'm happy to make any difference in this case that so many of the named pointed found themselves in quite a contentious relationship with counsel is not something that there is at all on how well this was conducted well you would if i agreed with your premise which i do not there weren't that many plaintiffs that disagreed with counsel as as mr pearson said the whores did disagree with coun you are if you don't want or we have four and i mean you know i'm not and i'm not now talking about the breath of support or a lack of support for the settlement among the class that's a different issue but it seems like the people who  were most actively involved in the litigation had what the court ultimately characterized as a breakdown in communication and putting it gently with counsel and a consequence of that was the appointment of additional counsel as well as the substitution of additional name fight it's understand that but in a case where we've now got other counsel to worry about compensating as well  quarrel with that should be taken into account overall what i will quarrel with was that there was a breakdown in communications what there was was certain plaintiffs and did not want settlement period end of story we have an obligation in your cases say it even if every class rep is against the settlement but it benefits the class that's our duty in this settlement is the largest dollar settlement in vermont history in terms of verdicts or settlements that are reported and you focused on the known monetary issues in they were the fact that as opposed to the securities class actions that this court probably sees the most of and some of the consumer class actions a case like sharon is really closer because a case that is bro you know we often have difficulty with counsel and difficulty with the kind of realism that lawyers lawyers bring to the table so i'm not i'm not it's not a polemic question sounded but it is something that is on my mind as i look at this that the district court was facing a situation in which the the situation in one way or another led to a fairly expensive addition to the to the table and well what i would suggest your honor in it is in the record of course there was a two day hearing there were witnesses at the conclusion of this th court made its findings it didn't find that council did anything wrong anything at all and there frankly was zero support for the what led to the hearing so yes we had to do that and in it affected us because we actually really care about what we're doing but there was no basis for it so if the court takes it into account and i agree with you it s over you have a quick point you want to make and then we have to thank you i said that the court was in error as a matter of law on certain points it looked at the fee in relation to the settlement factor of goldberger in adopted intervenor counsel's suggestion that the fee request was sixteen million dollars if you lowered that he would increase the four thousand dollars per form there's no i  can't dispute that that's a mathematical certainty that is not the basis for looking at fees in common fund cases however furthermore everybody's talked here this morning about the non monetary relief it was worth substantial lead more according to everybody then the monetary relief but it wasn't taken into account at all by the court  evaluation in the court recognized because it did send us back once it recognized the value of the non monetary really but it's not in the fee opinion  puzzled by that to am i right that the original dollar amount of the settlement that went back to the drawing board was the same yes it is so the district court says there are these equitable things that concern me and you go back to the table and you come back with something that you now say is worth more than the the dollar relief in the first place but you have to pay for it and i the defendants didn't  insist on their paying fewer dollars if they're going to do these other things that are so valuable and costly and it's that's not what often happens in these negotiations i can tell y because the person who did it we work at a settle for less than fifty million dollars period and in that was told to the judge to the court as well i don't agree with you that the value that was originally up tain for rather the injunctive provisions that were originally obtained warton valuable because they were in fact the record maybe we could cite you the page i mean these are all things that are very difficult to evaluate from the distance of a court of appeals which is why we defer so substantially to the district court all i'm saying is and without doubting  that the defendants fought hard in the negotiations over these things and when i look at the additional equitable relief these look like things that would be of value i don't doubt that but you know they seem to have been the judge said give us some equitable stuff we got some equitable and initial equitable stuff and everything else stayed the same  we were seeking we were seeking seventy five percent of our lodestar we're not seeking your full lodestar you don't have to get to the non monetary value goldberger says look at the value of the entire settlement that's all i'm saying look at the value if the if the lodestar is presumptively reasonable which it is under all the second circuit cases and we're asking for seventy five these proceedings i'm representing the two additional subclass representatives there a lot of time and steve taylor mr robert times case his farm is a six either six or seven generation farm so in addition to serving as commissioner of agriculture he's also it a longtime family farmer mr taylor former commissioner from new hampshire operates currently operating his farm with his with it both his sons and his grandson so they served both as class point of the case the mr taylor for purposes this proceeding that the key issue is is relatively straightforward as to whether the district court's fear word percentage feel word was an abuse of discretion  mr taylor and mr robert tying got into the case as you indicated at the point when the district court rejected the first settlement the issue the fee was and was of concern the caliber of the non monetary relief was of concern and the stalemated position of the case was of concern they decided to bring their their experience to to bear in the case and see if they could break the stalemate see if they could enhance the non injunctive relief and see if they could find a more reasonable balance in the fee as against the the outcome of the case at that point they've chit trek track the feet of work from the inception of their involvement to this point had proposed eleven and a half million as opposed to sixteen point six turned out to be more than what the what the court awarded so once the decision came out our options were clear  indicate that that the fear word was too little against what we had proposed and and either join with the appeal or to bring an appeal in the alternative based on our alternative fee of work after consideration of the goldberger standards we came out different place from from lee counts on the case and concluded that within the court's broad band of discretion clearly  deferential standard of review in this court under other precedent that that the court had satisfied the goldberger criteria as your questions and have indicated the court went through all six of the criteria did an analysis under all six of the criteria and came out where the court came out so there's obviously some subjectivity to it involved you have a seven million dollar wart you have an eleven and a half million dollar calculation as an alternative and you have a seventeen sixteen point six million dollar calculation so you have three calculations so it's a discretionary decision so if you consider the the decision from that standpoint the the court's deferential standard re makes perfect sense and that's where we came out so we determined mr overtime to mister taylor determined to join the case and it's obviously a somewhat awkward position but nonetheless that's why we're here today is to the disparity between the lodestar and the award notwithstanding the assertion in the reply brief never got into the case never had any intention of opposing the fee it's a question of a calculation of to use a percentage of the fear word method and the trend of the circuit is to use a few word method and it's left to the discretion to choose one of the other and where the lodestar fits in with a choice has been made to use a percentage method is where we are the lodestar cross check is obviously a clear option but it does not appear that a court is bound to even do that and thereby not consider the lodestar at all i would think that's appropriate in this case but it seems to have been an option it seems that under bear stearns what the district court did is consistent with with precedent which is to consider the lodestar within the time and an expense and time in commitment of resources the first goldberger criteria considered and under that consideration and indicated that clearly council have put in substantial time and weather and how far you go beyond that to this some concept of presumption of reasonableness because the request is less than the lodestar which is clearly a key premise of their argument me where the the the award was so much greater the fees were so much greater in the delta between the lodestar and the fee was was so much less that that you're you're creating a precedent of presumption of reasonable list so i i think you're you go back to the discretion to the district court to consider the lodestar live case and i think your honour's point that that the court in this case was intimately involved with the nuances of the case which is the issue in the standard of review why you're not working off a cold record on appeal you're deferring to a judge that's had daily with with any manner of both what you could contemplate from a complex any trust case two things that you couldn't contemplate coming up with all of the difficulties that occurred with the name representatives so you have a substantial record in which the corners we've used a lot of time all of i would just like to close say that i think in this case in addition to the standard of review itself the the court's clear reference throughout to it function as a as a fiduciary in this case in from from my this first class action i've been involved in that the fiduciary responsibility of the district court really stands out both in terms of function and in this case the court constant reference to that role she clearly took that the judge clearly took that role very seriously in this case and she came out where where she came out as a result accordingly would ask the court to affirm the court's decision  dressing intervenor counsel they sought to intervene in this case three times and were rejected three times the last time we and that's when mr over teen and taylor were involved and where this brouhaha had developed that you've heard about our reaction was you know the court wants to hear more that's fine it should hear in  did not allow counsel in the case at that time because she was concerned about costs and she did do a role and have the for two cherie role in mind she cared about the cost of the class well then a motion f council is requesting two hundred thirty two percent of it's their lodestar as a fee in this case i think that says something counsel talked about breaking the settlement i'm sorry breaking the stalemate you asked what happened to the original reps while you had the horrors the suits is mr swan tack and alice our that's what it was before innovator council came and that's what it is today you got suits in swan tech opting out in pursuing individual cases with the hundred twenty or so and that is going on today the way i'm going to add to that the grain of salt that should be taken in terms of risk because we took risk from the day we considered filing this case intervenor counsel