requesting three things relating to this appeal one of the court reversed the district court order relating to the bill of costs that denied twenty two thousand one hundred seventy dollars of the fees claimed a further the court further award mr carlin recovery lodestar analysis in quickly versus winter this court found that normally starting with those lodestar is what is required because failure to conduct this undertaking creates a substantial burden upon the district court to account for its actions so that's usually the first step other circuits have held the failure to use a lodestar analysis at all is an abuse of discretion in and of itself here your honour's we maintain the district court abuse discretion with regard to the few ward for five primary reasons first the reasoning and her opinion for reducing it and only allowed an arbitrary twenty thousand dollars i was because of limited success but what this fails to do your because of limited success we should further reduce the fees that only relate to success that doesn't make any sense moreover the court argues that limited success i'm sorry this limited success is also questionable your honor because point of didn't fact prevail on two of its four claims the statutory claims and the contract claims the only claims it didn't prevail on were the alternative theories which they couldn't recover on both secondly the court reduced the rift be due to the fees and some part based on an analysis that the attorneys representing both parties needlessly increased the cost to resolving the dispute and with that she was talking about this issue of conditional payments as we've already discuss strongest out issue checks and litigation that were conditioned on the plaintiff giving up certain rights including possible penalties that would have been involved obviously those communications prompted commute prompted communication between counsel and debate about the waiver issue that arose and yet that was a critical part in the decision making by judge erickson but she ruled that that should not be compensated and that doesn't make any sense your honor thirdly there w additional reasoning by the court that there should be a reduction in the attorney's fees because a lawsuit wasn't even necessary because i have somewhat already indicated in my previous argument that's not what the record shows what the record shows is that despite efforts by mr carlin to collect his commissions pretty soon he was unsuccessful there were communications between him and management there was a written demand and at that point j to pay him for the commission and in fact a couple of months go by and it's only after the suit is filed and after there is a notice of removal that a payment is made within two days after that with a refusal to pay or because there is an ultimate finding of damages against john's language south fourthly your honour's the district court wholly ignored several important relevant factors that were in the record and as this court has indicated before that is an abuse of discretion or relevant factors that should have been given significant weight are not even considered some of those factors your honour's where there are contemporary contemporaneous records of the time entries were provided for the fourteen months of the suit was in litigation there's no discussion by judge erickson about that time that it was reasonable that the hours were reasonable one way or the other there is no reference to it at all  again that time that was submitted reasonably exclude any time spent on the unsuccessful claims there was an expert affidavit provided that provided evidence about market rates experience and reputation of counsel her experience in similar matter and there's no mention at all regarding not that piece of evidence as well which goes to the factors and hemsley finally what i think is critical here is even jon's language how only challenge a small part of the fisa mission that was made and at most based on the objections that they made there would have been a reduction of fourteen thousand two hundred eighty dollars they identified six thousand four hundred five that they said should be excluded and then they raised issues with other issues with other and i'm saying up to seventy eight seventy five dollars were at the court's discretion and when i say seventy seventy five that's taking every objection they made in saying ok if they didn't get if the court agreed that all of those should not be counted that's what it would be so even under john's landless sounds a review and analysis of the feet request that was submitted they found that twenty seven thousand one hundred ninety dollars wa reasonably awarded the court never addresses in her opinion anything about the hours whether they were reasonable or not she doesn't talk about the hourly rates whether or not both are reasonable or not there was additional evidence on the record of another case in the district in which the hourly rate submitted here had been approved by the court and basically under judge eriksson's ruling of twenty thousand dollars which she doesn't really support with anything to how she gets to twenty thousand dollars that would suggest that counsel should have spent about four hours a month for fourteen months to pursue this claim on behalf of mr karlan and that's neither reasonable nor appropriate particularly in view of the success that he obtained again the purpose in allowing fees under one eighty one point one seven one is to allow the prevailing employee to pursue claims and encourage attorneys to take those cases even when the employee's claims may be small versus the cost it's going to be for them to pursue their claim many times the amount of wages and commissions that are involved in these kinds of cases are the scope of the world but there are large and scope of these people's lives and if we don't have a statute that allows them a means to pursue that they won't be able to so what the intent of the statute is to make sure that harmed employees with prejudgment interest is appropriate in addition to damages penalties attorneys fees and costs under this under the statutes that we're dealing with in this case the court didn't answer that and the pre judgment interest should started accruing when plaintiff's claim arose which was on february twenty first two thousand and twelve for that reason your honors we ask that the court include in its opinion that there should be an award or prejudgment interest in this case and that consistent with the north's an opinion plaintiff should be allowed to recover that very well thank you for your argument mr shanks will hear from you on this issue request attorney's fees and ends up with a higher number i don't believe any court just relies solely upon what the the floor being whatever the others the losing party objects to i think it takes away the court's discretion as the case law points out th the trial court can exercise its discretion and look at the totality of circumstances and go upward downward whatever direction they want so long as they stay within the confines of not abusing the discretion with respect to the  counsel and to the court to have an order come out that's critical of the counselor handling the case is always a distressing occasion however i think it's notable that i mean the court did look closely at that and essentially if i'm to summarize in crystalized that the court's order it judge ericson seem to conclude that the parties wasted each other's time and resources on a claim that didn't exist when it was first sued out and was created after the lawsuit was created solely due to the involvement of the lawyers there are seven thousand dollars of which of an exchange if you look at the record after the briefing but before the argument where opposing counsel are just writing to each other we're at least from our point of view we're trying to get mr curly to cash the checks in that way of anything that's currently on the motion and we could not arrive in agreement thousands of dollars were spent on that clearly judge erickson was critical of counsel's conduct on that of which i am criticized as well in her order with the counsel the litigants at bottom this was a simple case he said what was the point of jails letters from the attorney saying that you would waive and you know you did say in the letter that you'd waive your right to any other commission or something to that effect there is no such letter in the record your honor only we're the only i'm not quoting it correctly what's the letter i can get the exact there is no letter well well that there is a letter from  counsel with respect to the condition is that what you're asking about yeah what does it say remind me with respect to the plaintiff's counsel had this came up during the real argument so i don't want to go outside the confines of the record that was before judge erickson the summ judgment motion but since you asked plainest counsel and this is on the record with respect to i'm a thirteen email exchange plaintiff's counsel it asked me there's checks of come in there is a waiver of anything accord and satisfaction i wrote back the plaintiff's counsel and said that that check i should get the precise language but we have a quote it in our it's in the transcript and in our brief is just it isn't satisfy you don't get any more commissions for the money jael received and has dispersed the thirty percent out to you or the commission shero from the client there was no mention of others claims that you may have there was no mention of the basement space the basement space didn't come up until november of two thousand and twelve that was the gist of the of the note you can't double recover if you're waving anything it's just in accordance satisfaction you can't double recover that's what my colleague jamie cole in the trial in the transcript tried to read into the record and we tried to submit that e mail exchange so that that can complete the record with respect to summary judgment to judge erickson but she denied our request to submit that e mail that was read at the hearing when this issue came summarizing what she believes the my statement was binding to your letter and i didn't have a letter it was an e mail exchange you know some weeks later and then she wrote a letter characterizing what she thought we were saying which erickson i don't know how she treated it she didn't well it wasn't it wasn't filed as part of the record and we conceded that at the hearing frankly we this is and we the issue with respect to the condition was whether or not he was paid or not  our convention that he was paid how they want to construe the payment and an issue that they brought up with us in their request to us and i just responded to opposing counsel that ends up being the activist triggered statutory entire exchange and all the e mails all the letters everything is made part of that record a record that was submitted by plaintiff's counsel are also apple leak appellant and this issue counsel with respect to the attorneys fees issue is where that complete record was and put before judge erickson involves dictated by statute so yeah i think that well the pre judgment interest the judge eriksson's position was that they had to ask for it amend the judgment in some way and take an affirmative step to to we just have a minute left and i'd like to quickly address this waiver discussion because i think it gets a little confusing what was on the record before judge erickson at the time of the summary judgment relating to the waiver issue were two things one was my affidavit dated march twenty first two thousand and thirteen that's at appendix j one twelve to one fourteen paragraph ten dealt with this issue and also exhibit c to that affidavit which was my letter to mr skilling stat of may fifteenth two thousand and twelve  moralizing our conversations that was the waiver discussions that the court considered at the time of summary judgment at that time during the hearing there was an attempt to offer additional evidence the judge did not accept it there was a motion to get it entered after judgment and judge denied that so that wasn't part of the record where the additional documents come into play on the attorney's fee issue was there was additional communications after may fifteenth two thousand and twelve and those on your honors are found in the record at k forty five through approximately case sixty my time is up if i could finish my statement which statement i want to explain th the document that i'm referring to and the record so that these issues could be resolved you will see that the issues were not resolved and they were important to the summary judgment hearing that was coming up thank you ok thank you very much the case is submitted and we will f opinion in due course thank you both