sixteen moot the first issue so there's only three of four issues remaining in our opening brief and your honor is the first one is a plot the first to apply to be a fellow c plaintiffs did not seek it's our position of players to  that issue completely in the district court didn't you i don't believe we did your honor we you didn't raise it i think we did raise he said you're response to their motion for fees said you were representing  honor i believe we preserve that issue and you have the opportunity to say this is not applying to be a fellow c because it is not a theory i think your honor the arguments that we are making today address those issues and they dress the issues based upon the fact that the court could not a court really intended for this be a ward order to apply to mr brewster mrs smith and mrs henry it meticulous in this case and so it would seem to me that if he made that obvious if that was a mistake and it was that obvious it could have been brought to his attention well your honor what happened actually was judge jordan was going to hold an additional hearing that never occurred and that's in our briefing today as well and we never had the second telephonic worl argument regarding that matter so we didn't have the opportunity to raise it there and we certainly would have raised it there and we we believe that those issues are preserved for appeal today probably to the point of the eighty five in the pre judgment interest one point two seven five only it doesn't say anything else about it so we think that they haven't even made the motion in the first place against b f l l c your honor and also if you look at judge jordan's  order it didn't address be a pill l c with one single reference in its factual findings so there weren't any factual finance against b f l c we think that's just a ministerial error that can be corrected today because we don't believe it was judge jordan's intent to have this applied to be a fellow c and i will say down the road in my argument that there are there are a ton of such circumstances here related to ability to pay the boeing factor judge jordan  says with respect to the bone factor quote the only bone factor that might mitigate against awarding fees is the ability to pay but that issue remains cloudy that's record on appeal for nine one seven and that issue as far as we're concerned is is continents away from cloudy of that ability and your honor in response to that the government would not let the case settle and that record is clear the government would not let this case settle that insurance was offered and it was rejected and so if there was an ability to settle it that the government didn't take the money when the money was there that's the government's issue it's not mr brewster's issue and i will say that if you allow this to go forward today and i polled with remanding for consideration on the issues that i'm talking about as it relates to be a fellow see we'll be in a situation where you're going to basically pit mr copley and mr greenwald of mr yaz back against the side because what they're going to do is they're going to take away what limited resources are left available to pay to minister to the aesop they're going to take them for attorney's fees and that's the travesty here as far as i'm concerned and that's in our brief just going on to the second issue if i could your honour's just we believe that the district court erred in issuing the fia ward as it appeal to five one six zero one six one and anything outside of that is not appropriate a couple really for according to judge burton and we hope we present that argument to you today we also ask you to focus on here is trust in meaningless and it won't be equitable relief and that's our position in that respect furthermore they waived your honor sealy plaintiff's asserted in the district court that the proper relief was more than the eighty five plus the three hundred  ninety thousand so they waived it mr coakley mr greenwald and mr yaz back waived that issue below that they failed to appeal that order the approach appropriate equable relief order so they can't get more than that now through some  more than that appropriate act real relief today your honor and also you're talking about a situation in which there's three mr greenwald to mr coakley have a two million of the three million dollars fee award here so now you're going to you're going to basically for an eight eight hundred eighty five thousand dollars judgment you're going to apply three million dollars worth of fees against an eight hundred eighty five to one and several liability but we don't know how it's allocated they won't tell us how it's allocated of course not that's what you want in that it would be inconsistent with appropriate equable relief to allow attorneys fees to be granted on top of the appropriate bill relieve the judge heard already ordered and i also think that there is no finding by the district court here that any  if there's a complete dissipation of wrongfully obtained funds and worse assuming for this argument that the funds obtained by the f l c were obtained wrongfully that eliminates the lead it's gone you can attach b f l c's general assets which are extremely limited the only thing that's left is the bloody articles and those are being fought over so that these folks can get a piece of the planet close to the detriment of the big east side and i think that's wrong and we think that's wrong we posit that to you today your honour's i'd like to finish with one last argument related to that applies both to herbert c brewster and b f l o c and we believe that this final third issue nothing was achieved by the by the ceiling and later plaintiffs that was not achieved by the government in the present case so you had two cases the pres case and in the rater case nothing was achieved in the in the  to allow discovery consolidation that's not correct your honor we wanted to consolidate the cases at the beginning and i understand that i am saying that once the district court denied that perhaps imprudently they assert that you also refused to go along with single depositions for the witnesses your honor i think we were ready to we made it clear to the lower court many times we wanted the cases consolidated that we were just a question and that you're not answering my remember at this moment because of the record i'm i'm not i'm not going to give an answer that i can't guarantee is correct your honor so i don't know and i do know that our argument was that you consolidated the cases so we tried to in the court would let us do so that was our position or you can't really refute what opposing counsel said in brief that you refused to do that you can't refute i can't honestly i cannot refute that position right now because the record is luminous after seven years i'm sorry i can't answer that question at this moment i just don't recall what the position was i know that we worked hard to consolidate the cases quite a bit before that point and we wanted to also know that there was a substantial amount of settlement efforts that were rebuked by the government that would let us settle the case that was also in the lower court your honors if i could finish with my my sixteen minutes here i just would like to make a couple other points about this had the district court found that this case result of greater recovery this case meaning the rater and sealy case resulted in a greater recovery then in perot's because of some inadequacy of proof and grayle as i could see how you would be asking to impose some attorney's fees because of the work they did but you can't do it when there's nothing in the record that makes it there's no there's nothing in the the order that makes it clear there was something that that mr no there was no appeal of the eighty five and the three ninety by the plaintiffs so that sets the ceiling and that's the end of that so yes that is something that there's a pro predicable relief and it's been granted and it's there's a limited amount a patient in the lawsuit was work excuse me what evidence did you offer that their participation was work i didn't say it was worthless i said there was nothing achieved there was no evidence that they presented a trial i mean they had they had an expert that  actually was right around the same level as the messina expert the government says expert by they i mean the rater plaintiffs so we're going to take in their expert out and based on your standard of averaging the two valuations we would have gotten to the same believe that again what we're doing here is we're giving these attorneys who go around and sue people all over the country we're given them an ability to get something greater than the east side gets here award in their attorney's fees in this case trial for four weeks this is an attorney motivated and generated a lawsuit it's nothing more than that and i appreciate the opportunity to be heard i see that my time's up and i'll thank you for my time and i'll come back for my four minutes of rebuttal thank you very much  call it on the good offices of judge heard because he set it out in his order he made findings of fact about this he said he could not agree that we added no incremental value or that or it or that our efforts were duplicative and he noted that scotland was going on separate tracks it was apparent that we coordinated our case with the secretary splitting up the leads of various examinations so we did work that the secretary didn't have to do in order to reduce the burden on both sets of plaintiffs we had a considerable value to the  we found our car case before the secretary even got involved we got the case rolling then the secretary got involved a few months afterwards in terms of what value we added the client asked us to stay involved in the case even after the secretary you know filed his case actually her case at that time that now his case to sit secretary wanted us to remain involved because the secretary recognized the expertise that we brought to the action that would complement their expertise and we believe it was in the best interest of the class that we remain involved you were representing the class you never saw in class certification and in my view having written the first opinion in this case had the secretary not where the money will go to the aesopian and aesop will distribute money to their participant not under the current trends she is right i honestly i don't know if an independent so anyway you're going to be out and no way and done with it after the judgement becomes final except for your feet right when our collection efforts we continue at least there are now three separate lawsuits involved trying to collect assets you'll get where the benefit is these are fees for that  tell you if there's a fee shifting available there but at the try out in june the government lawyers split up the witnesses and experts and so you take something they took absolutely wrong or we coordinated that carefully recorded it on the witness list we split up the pretrial briefing the motions eliminate i because although there were slightly different issues presented by the two cases we had we had a united effort in terms of getting the best result possible on behalf of the aesop's and the fact that we had private plaintiffs and the government involved that had the advantage of putting extra leverage on the defendants we had different claims in the two actions that was in the damage to secretary never by attorneys fees the defense has paid their lawyers you know eight more than a million dollars there went the insurance policy but still the r r k's allowed the deposit bilinear getting those insurance proceeds had it not been dissipated and now it gives us an opportunity to use the dissipating of the insurance proceeds as part of an insurance bad faith claim and a malpractise claim in our collection proceedings so that's really important part of the overall action participant rather than seeking to represent a class i know of at least three your honor and we're close and you know a big issue in this case was standing your standing your client standing as an individual to sob now the district judge we didn't have to reach the merits of that but if you have such great experience why don't you file these things as class actions by your own or sometimes they are filed as class actions most night i mean we looked for those that were filed as class actions and we had a real hard time finding them and the reason is i mean the reason for the claim it's my colleagues is that you have fiduciary duties to a class be a class well a couple things your honor they did the case was brought on behalf of the aesop through mr celia mr rader they had statute statutory standing to step in all the happiest crowds that he's taken to trial and judgment i he did not believe the classrooms occasion was appropriate were necessary and the courts have agreed with that i'm thinking of the henry versus trampling case which i believe is the second circuit case where there was no classification individual participants stepped forward on behalf of the esau got relief that was paid to the aesop and i understand your misgivings judge jones concerning standing but that is not an impediment in every case and the best judgment of plaintiff's counsel here is that it was not going to be an impediment in this case and whether by a block or foresight it turned out that was correct that no it turned out it was correct because the government was there to make sure that he's up participants get there's a fair share there in which they may not if you eat up happy chinese well again there on the judgment one hundred percent of the attorney's fees will both then you're right then then something's got to give and my my supposition is that the recovery by the will come first they're going to get their recovery and you know and it's a total recovery is less than the maddie of the judgment then we may have to go back to and we get nothing chords the three million dollars in attorney's fees at that point the judge to myself my law firm and my co counsel would have nothing to show we might then in the future i don't know we might go to judge sh motion and they responded on behalf of all defendants and they defined all defendants as including henry smith brewster and b f l o c counsel file the opposition papers and the signature block a trial he had a judgment against all defendants on our feet on the in the field or judge was very sensitive to potential differences between the different defendants because in his judgment which was affirmed back in may he paid special attention to the liability of be a fellow seal which was different from the liability of the individual defendants brewster henrietta's mess so there's no then they could have laid out all the arguments that they raise for the first time on appeal they never raised any of that they never raised any individual as arguments concerning b of the law c and we respectfully suggest that argument has been waived and as you say  agree even if it hadn't been waived it would have been long as a  the person who was a beneficiary of the wrist a plan had squandered the fund before the company came after them then he couldn't get equitable the company couldn't get equitable relief against that person right because the funds were traceable yes the concept of equity power the funds traceable in this b f l l c number one and suppose so they're to me they're in the same position as as the the employee and in the mountain case and why should the why shouldn't there be a tracing requirement or a limitation of the liability of the b c two approximately the amount of ill gotten money received ok is i understand the question you're out of this question concern liability under five zero two eight three and that judgement was affirmed in may and now collection proceedings are going on at the district court to try to collect the money that was awarded to  goes to the district judge in the first instance i don't there's no evidence before this court or that i know for that matter that there's evidence either way on whether that be a fellow c squandered that money might be an issue but it's  not before it's not before this court and there's nothing in the record either way now in terms of the the five o two g one remedy that's what we're talking about today because by the two g one and in the court the supreme court addressed this in the hard decision back in two thousand and ten and the court into it hart said this statutory language is very clear this is an independent basis for awarding attorneys fees it doesn't depend on there is no prevailing party requirement there is no requirement that you go through a checklist as used to exist under this court's boeing decision the only the only limitation on the court's discretion here is with if there is some degree of success on the merits if there is some degree of success on the merits then a court in its discretion may award attorney's fees to either party the the plaintiff or the defendant and and the court in hear called upon the district court making that kind of decision to do so without conducting a lengthy inquiry into whether a particular party success was substantial or occurred in the central issue and that's exactly what judge or judge use my discretion to award attorneys fees and let's move right on to the lodestar analysis in figure out what that attorneys fees should be and then in exercising his discretion the judge made findings of fact about the incremental value that plaintiff's counsel added to this case judge or heard and consider all the arguments you just heard this morning about well the thing is to do anything the department of labor could have done all the work judge durden had seen with his own eyes and heard with his own ears he knew whether the plaintiffs made available country the rater plaintiffs made a valuable contribution or not and he determined that they had in fact and and once the judge makes that five o two g one stands alone and there are numerous cases making that point including that despain cate case from the ninth circuit there simply there and there is no case anywhere that says use under g y m of course i mean the de judge has why discretion of the judge in effect the judge talked about his discretion here he said well i hear the argument that the department of little bit wistful to me that defendants hadn't bothered to challenge the hourly rate over the legitimacy the reasonableness of the amount of hours expended he kept saying well they've asked for all or nothing for all or nothing there betting at all in this argument that the did the plaintiff should get nothing because once the department of labor steps into a case that should be the end of the matter and and here i mean he actually went through the lodestar now he said they gave me three hundred sixty pages of the reports detailed time entries for many years they took dozens of motions dozens of depositions i saw them in trial every day i know what they did and i'm satisfied that under the and what i saw at the hearing was that you know on the first day of the lion share of the people there were government agents and attorneys who were present in the case and they were actively involved in these are people that have over a number of them have over thirty years experience in what a district court yes i understand your honor i just don't think you answered your question i don't think there was there was no they didn't answer the question of what did they do that they needed to do that  achieves some of the value here in terms of the ultimate judgment are we saying that the government didn't do a good enough job was there evidence there was there any evidence that the government didn't do a good enough job to get the judgment i don't think so and that's the issue in my opinion as to who filed first i think these plaintiffs have been following around mr donnelly in a number of different cases and they've been doing it long before they filed this case so they were involved with the government and a prior case in other cases and they found out that mr donnelly had this criminal record that was not disclosed to anybody and they decided this was a good place for them to go so that they tagged along with the government in a prior case and they tagged along with the government here and they filed in the wrong place first they filed in california the government then filed in mississippi and that's where the case ended up was in mississippi not california so it's just a simple matter of one first the as far as who's going to control the distribution of assets these folks are going to control the distribution of the assets  he doesn't even know that there has been an independent trustee quoting a quote independent fiduciary appointed but a lion's share of the assets that mr brewster is handing over in terms of collection efforts are going to an l l c is headquartered in phoenix which is where mr greenwald's office is and it's run and managed by the folks at keller work back so they're the ones who are going to decide where the money goes and they've got their agreement and that's the people who are going to marshal up the assets they're going to get excuse me district court ordered the district court didn't order it what happened was there was some separate in the recent here and there was some separate agreement that occurred  government and the and the east side of the independent producer it and these folks that were basically provide for that in the district court didn't order it it was what they agreed to do in the district court hasn't responded to that in a formal written order at this point the other issue i think you're correct your honor that terror is going to be plenty of fees for these folks and other actions they've got three other actions that they're going to try to collect fees on and again because of the lack of assets they're going to put themselves in conflict against the sun and that's what i think is going on here so we do ask you one other point if like will there's your red line ok thank you thank you for