the president county decision came down right after the appeal was filed which gave us some guidance on how the court should handle this type of case by that time we've already how how to assess that feat and the fresno county case was important when it came down because it clarified that when the  at a excuse me at a lodestar multiplier cross checked for a common fund fee that the court is determined to do as a percentage  or whether or not the court is using a percentage or if the court is using a lodestar multiplier for that common fund feed fresno county makes it clear that the types of risk that you look at to to fix the multiplier are really very limited limited to really two kind of an opportunity cost risk or to  think that is that would be part of a in the old days and the goldberger case that would go to a quality multiplier or at what gold or what goldberg described as a poly multiplier in other words this is a challenging case it's especially challenging therefore we're going to give you a higher multiplier but what fresno county says is no relying on producing intervene in case the supreme court case and produce it  fresno county only speaks in terms of portfolio risk only it does not talk about the challenges of the case and the reason for that is because of the of the extremely high hourly rates here what they're saying is we expect that if you have a challeng make to just feel excellent question i think i think that the i think that the the district court and i'm not the for well let me be clear i'm not entirely sure because fresno county is a little bit new and  hasn't had a chance to get really construed it appears to me from what fresno county says that you're looking at the risk of that over that lawyers portfolio how many cases that lawyer has has won or lost that or that possibly i suppose evidence about the risks the similar risks faced by the by the industry by the by lawyers who practice in that field possibly but i think that more and more more specifically certainly the lawyers have to come in and it was some sort of evidence about how how many of those cases they actually are able to recover in and how many they're not and the truth is goldberg goldberg tells you and they would have to show he could have made money from doing something else and that would just more fees for doing this i think that would be one way to do it sort of that would be the opportunity cost but i think there's also the sort of the portfolio risk that that is what is what the fresno county courts and to focus on i think that's true that if they came in and said well we could have worked on this hourly case where that somebody was going to pass a great deal of money and i think that would certainly be evidence that would probably be useful and probably be relevant but i think that what the court seems to be talking about is a more globalized what is your portfolio risk over your entire catalogue of cases and so i don't think that the answer's no were investigative and judicial proceedings just like in the goldberg case the goldberger case pointed out well this isn't a tory is fraud there were investigations and there were criminal proceedings therefore there wasn't a lot of litigation risk here not nearly as much as you say similar situation here you've reserved three minutes for yes that's right you know  below that was the print the presumption that we should have been limited to our lodestar and the court could not grant us a few were based upon a reasonable percentage of the fund recovered we were slated that you're not  don't we have to consider whether we have enough explanation here for a thirty percent enhanced net but i would hope your honour's would would look over the record and see that the judge book there has to be an of whole record and the judge told us that she viewed it as a complex case one in which she devoted a considerable amount of time to the efforts but is that enough court and over the stars no no your honor it's help me out with you or the feel wanted was a percentage fee it was thirty percent of the fifty million dollars that we recovered for the benefit of the class i think thirty percent judge book wild correctly recognized that the case was a risky want to be to be brought in in the beginning in the st place several points to that number one we know it's a securities class action no matter what goldberg or this court said and goldberger some twenty years ago saying that securities class actions were not necessarily risky this is in our briefing but i just do want to remind the panel that goldberger itself was not a p s l or a case it was actually begun in one thousand nine hundred and ninety even though that was a year two thousand decision the p s l or it had not yet come about goldberger cited to an old law review article looking at a limited sample of just nine i p o cases and said that these cases are not very difficult to bring and they often settle well that may have been true of that small sample size but that is not true of the securities class actions as a rule since then we have seen scholarly economic analysis of securities class actions fully forty five percent of them are dismissed with prejudice another thirty percent of them are dismissed partially dismissed leaving only twenty five percent to go on to live for him i beg to differ your honor i've been i've been up in circuit courts around the country enough defending the success missiles of these cases to realize that several of them are very very good cases both for one reason or the other plead the elements as cured and then maybe that maybe so you're on i would like to point out this court in goldberger says that each one of these cases in which a few ward is given and i'm paraphrasing here they must be looked at upon their own merits it's a case by case  is so here judge book wald was not necessarily locked into giving a multiplier of a certain amount although this court in wal mart said that a multiplier of three dollars was quote reasonable circles back into my friend's position which is has been his position all along in that is that we are to look to the supreme court's fee shifting cases with their natural skepticism towards enhancing any lodestar for risk for quality of result etc but that's not what happens in these common fund cases this court has said in goldberger and most recently reaffirmed late last year in fresno county that week cross check a reasonable percentage fee with a low start that lodestar does not have to be a straight unenhanced lodestar the percentage feet can equal can be less than los or it can be equal to it but it can be greater than it and what we do what we look to is what goldberger says we look to we look to the risk of the case and we look to the quality of the representation goldberger says the quality of the representation is best summed up by looking to the results  that was shorthand for covering all the issues in this case see antar problems with false statements problems with loss causation problems with materiality my friend mentioned earlier  for taking on the case because the attorneys their normal hourly rate is what they would be paid whether they win or lose given the cases these features that make it more challenging your compensation initial decision to take on the case attorney and staff time put out with no guarantee of recovery in the sometimes hostile landscape that judge rajiv mentioned earlier where a lot of these cases are dismissed and i think the district courts reasoning in of the reasons is not one of the errors most people i believe he's trying to say that the the the that the fee the fee order could have been more explicit and i've got a few order here in front of me and she specifically that's why i wonder if we need more information from the judge i don't think so your honor i think the fee awarded the feat order as i pointed out is replete with findings she doesn't necessarily drill down to each yes but what he said would be true of most securities cases with respect to risk to you telling us it's true of most securities cases and place soley in the united states on the east coast or the west coast this is a securities class action that involves the horrendous accident over in brazil and yet the defendants here are based in australia  the investigation that my friend mentioned earlier this is not this is not like goldberger where class council were able to piggyback so to speak on investigative efforts lodestar compensates you for all your work it's now that you want a premium on top of that and i'm not sure that whether it's in cincinnati you're in sydney if you're compensated for your travelling your work hours and all i'm not sure that that factor  heavily in favor of a large oh a large hats two points number one that premium is based on an on a two prong analysis risk and result we pointed out that a fifty million dollars recovery here for the class was twenty percent of the estimated recoverable damages by any yardstick you use in modern securities class actions over the last two decades that is a fantastic recovery when ordinarily the ratio between those two numbers is one  notices going out to the class this fantastic result our notice that we are going to seek up to thirty percent of the fee in the class notice produced one dollar objection to the fifty one dollars objection no institutional investor everybody was apparently very satisfied with the amount of money they were getting thank you not because you're in the you're in the position to be concerned this is that i'm saying these are the people who it's they who are losing the money from the thirty that you're able to prevail in objecting to them it would not be surprising if they thought it wasn't worth their time yes judge lawyer we are definitely saying that the the district court didn't do the make it justified you could if there were any such comments i think the comments of the judge made in the hearing are very cryptic almost and not certainly don't rise to the level of explaining why such a high class it is stockholders right so yes there would be individuals and there would be other institutions of course we have to brief this courts do not like to put much stake in that because if there is not a good reason to object to fees most of the time in the sense that it doesn't get you anywhere if you have a ten dollars or twenty dollars or one hundred dollars stake in the matter i'm going to object to the fees going to is going to increase your maybe five or ten dollars  well more in the sense that the district court would need to recognize and identify why there should be a twenty seven thousand and twenty two dollars at multiplier applied to fees that are already very hopping between four one hundred thousand dollars so in other words the judge should explain why i am about to pay two thousand eight hundred dollars to the top billing attorney on this case per hour for every single hour that attorney bill that that is necessary not just to help me but but to help subsequent courts to help all of us to understand why this feel word was made because this is as roger mentioned this is this is the class is money this is not this is money that belongs to the class and it was for their benefit so that explanation needs to be made to the class to other chords and for posterity and to help other courts make these  words i think that is i think that is absolutely necessary and i think that the broad discretion that we talk about with with district courts when we say we give them very broad discretion on their fees we will not interrupt what record has come to a conclusion on a fee what is presupposed by that is that the district court has done a very good job of explaining it in the st place so in other words the district court has to exercise it is question having exercised it that discretion we give to the district court a lot of deference we don't come in and say well as there's a figure the basically result was some some vague explanation for it we're going to give that complete deference that's not the way