richard greenfield on behalf of the appellant's i think it would be an understatement to say that the district court by the time of the final approval was exhausted by this case had been around ten years or less in ten years it had been the subject of numerous settlement to get a ration it's none of which by the time of the final settlement hearing had ever been approved i think it's important to say that the present settlement before the court that was ultimately approved by that settlement the mother a notice program that was not going to reach very many people that you provided for generous counsel fees before there was any significant work done without before there was any discovery and provided for a reversion of most of the settlement fund back to american express stringfield we're  familiar with a long history of the settlement efforts that the district judge did not approve and i wonder i've got a number of questions one of which is if we were to approve the settlement of firmly approval and but to reduce the field wards where  the reason i started out with the initial settlement your honor is that the principals that underlay that settlement infected everything that happened thereafter and the most recent settlement to want to prove by the district court basically gave the american express everything he had ever asked for from the outset  global release of claims that were mostly not before the court in fact the court accepted at face value it representation that the maximum damages to the class were nine point six million dollars in fact your honor we had discovery in the related case which showed the damages to be more than ten approximately ten times that and why was the district judge wrong to go with a lower number given the record before because the entire emphasis by plaintiff's counsel and american express had been on the so called split tender transactions and an argument could be made an american express could make it forcefully that under their theory of damages the maximum damages could be nine point six million dollars but as your honour's may want to ask counsel for american express and counsel for the plaintiffs that nine point six million dollars that the court views and accepted was only related to the split ten for transactions it didn't relate to see other ninety million come from under your theory that came from the total fees that were extracted from class members wrongfully as a result in part of the split tender transaction what else what other damages beyond the ninety one no beyond the nine point six million how do you get that up to ninety to one hundred million dollars this was the amount that american express acknowledges that it charged with a two dollar per month charge against customers accounts these are total fees assessed for all of the gift cards whether people were happy or unhappy right now and ok we've been waiting with bated breath for you to tell us what how you get a ten million dollar case up to one hundred million dollars your money was taken because of circumstances that existed in part because it split tender transactions which made it more difficult for card members to use their cards money was left in their accounts when they couldn't use the gift card had places american express advertised these cards are good wherever american express cards are accepted that was not true whatever dence was before the district judge to show that there was even an arguable claim on the scale that you were talking about evidence we were aware of the problem with the zero balance card claims were which apparently were not supported by court but evidence there was no evidence is to nine point six million your honor this was a number that was derived from defendants working back from ninety one million dollars that was not evidence either but it was presented by american express accepted by plaintiffs counsel and presented to the court and the court accepted that so that was not in the form of evidence either mr greenfield i don't know what you want to cover this morning one of the things i wanted to raise with you as you've suggested that the district judge erred by following sequence that she did in terms of the notice to class members and the time for filing objections and the time for for seeking final approval of the settlement and you rely a good deal for that are human on this court's decision and redmon yes and i've got to say at page thirty four of your brief you purport to quote redmon in which you have the wrong volume number the wrong page number and you have completely distorted the substance of the quotation i apologize for that if it was done your honor it was extremely misleading and undermines the credibility of a good deal of what you have to say what now the typical amount i believe was less than one hundred dollars as you say typical amount that's because it's sort of important because how big were these things and oh they were given his gifts and they typically were probably and i say probably we have no data in the record that shows with they were twenty five got a gift cards fifty dollars gift cards hundred dollar oil or thousand dollar you for more unlikely confused with american express credit cards should they are distinctly different and sure that i'm just not sure about the whole if i may get back to a little of the reason i'm curious about the amount  you get gift cards from places and you know i have a friend who helps us out a lot of stuff you know a fifty dollars gift card and that's for for you know or something that's different than what this is this is a universal or whatever it is acceptable card i guess if you shirt in a you're on a risk correct it's the kind of thing that you might use for yourself or if you want to give someone a christmas present you might give them a twenty five dollars or fifty dollar regular card graduations that's what graduation gift yes but you redmond stands for the proposition that in the context of attorney's fees the notice was essentially here in class members an opportunity after papers are filed with the court to object or opt out not turn title object to the fees right even that's required under the text of the rule even more important than peace your honor is the substance of the settlement and we make the argument and it's a matter of first impression before this court you know the words no other court has accepted that what you're asking us to do and it's not in the rule itself no as a court in the circuit however the mercury interactive case in the ninth circuit which had its arjan also in a few iffy disclosure issue makes very clear that the better approach is to have the substance of the settlement before class members before the time that they have to opt out sure it wasn't done here excuse me wasn't that done here and we know it was a preliminary approval of the settlement why didn't the notice tell them anything about the terms of the settlement the terms but not any of the supposed to justifications for it nothing came can further the notice so you think the notice needs to spell out point counterpoint why it's a good idea what objections have been raised to the settlement and so on are now how much does it have to say it has to provide this if this is not being glib your honor enough enough to put a reasonable person on notice if a person gets the notice and once is really curious about it they can presumably get into the papers submitted in support of preliminary approval right they could but preliminary approval sometimes gets changed of course if objections are considered you would expect that yeah but if some you seem to want to notice the call and response to go on forever now you know it's hundreds of thousands of dollars of expense and each two weeks before the opt out and exclusion date here isn't a single documented form they will have to supplement those briefs after they have an opportunity to see how many people have objected or not to that's right that's correct right ok and that that i think is the normal course of events in most settlements of which i'm aware really yes i know i know it doesn't seem to be in the rules as the civil rules committee looked in the  the settlement or in the wording the fees three rounds of notice nearly one point nine million dollars has been claimed by the class members does that include both both of those feet pro or programs yes so is it correct mr bach that you are willing to settle on terms and you recommended to the court approve a settlement that would have put forty one thousand dollars of perfectly reasonable settlement well we did hear reasonable inadequate to the dollar amounts offered to the class member of the amount of the funds those things were fairies and will adequate and then we did the notice that we thought was going to be appropriate we'd recommended a variety of newspapers regional newspapers the district court said no we're going to do one national newspaper so we did us a day to day i think or for a magazine and then we did make direct mail notice to one point two nine million people by postcards and the claims rate was very low abysmal and so the judge did not approve this item and we conducted we worked with a notice expert got more claims and then more notice went out after the rudman issue was raised by a different objector and and that resulted in even more claims and in fact a lot of the claims payment the result of us arguing and negotiating with american express not to challenge claims don't challenge any of these claims from people who are in prison there what they were ever paid all the claims  used to say was you you know you don't even you just had to say i had a card i don't get five and so that would be those bring the average down but like your honor was asking these are these are gift cards twenty five fifty one hundred dollars we're talking about most that most people can use their gift cards some people don't some people just don't lose it or really just they're in their desk drawer in their office and they never use it and that's when it's on these expire they they did they didn't expire but after one year american express used to take two dollars a month as a monthly service fee but you know until it was gone and part of this part of our lawsuit resulted in them changing they stopped doing that before the federal government passed the statute forbidding it but they stopped that when we sued them and settled them settled with them and part of this lawsuit resulted in computer investigation and corrections to avoid the split tender things where somebody would try to fees that should be distributed well the judge where we originally filed across a feeling we withdrew it the judge had the discretion the judge decided who contributed what we we  created we we negotiated the settlement we created this on mr greenfield came in and complained he still doesn't think the case should be settled ok he came in and complained and along the way the judge  herself was having problems with the claims rate so we worked with amex we work with this notice guy to keep getting more notice out we spent or american express spent the class spent more than two million dollars on notice so this thing was noticed noticed noticed  claims well you know the practice changed stopped a lot more most people who had american express gift cards were able to use them and use them some people weren't so the claim was about some of the systematic problems people had using the gift cards those have been around many those victims got all told off it depends on how the how this court looks at this the total benefit you know what's going to be included in the fine you know gaskill versus gordon the old cases it's a percentage of the fund made available t include notice that could include cypre some of that's changed the redmen case that pearson case pearson says that the fees could be up to fifty percent of the total of fees plus what the class members are going to get that sears roebuck cases a recent opinion from this court said it could exceed here i think word like fifty two percent but you know our firm spent three thousand hours on this case probably safe to say nobody really wants another round i think that's well listen mean our position is the judge approved this item and we weren't that happy with how it turned out they weren't too happy but a lot of people a lot of people were involved in this five different mediators to twice in this court but judge mi the morning runners made please the court changed an art on behalf of the clinton american express i want to address two things that the court raised in questioning with intervenors counsel first regarding the evidence that was before the core with respect to the nine million dollar estimate that the court determined your honor there actually was evidence before the court concerning that in the supplemental appendix at page thirty six is the district court's decision for the district court judge discussed the ninety one million dollars and then eventually got to the nine point six million dollar number the district court judge cites the paulson affidavit which was an affidavit that was submitted by the parties to explain how we got from the ninety one million dollars to the nine point six million dollars there was in fact there for evidence before the court regarding that calculation and in fact your honor as part of the discovery process that ultimately happened here mr paulson was deposed by class counsel intervenors counsel was invited to participate in the deposition did not appear in the deposition and actually the transcript of mr  deposition was provided to the district court as was all of the confirmatory discovery that was provided to the district court in an affidavit that was submitted by mr dop miscues the mr ryan that's it docket number three seven four and the court will see in his in his declaration references to all of the various exhibits including mr paulson's affidavit i think the other key point your honor with respect to the nine million dollars is the following even assuming and i'm hesitant to use the word that it was error to say that the number was nine million as opposed to some other mill number i submit it was harmless error and the reason is because the class notice the notice that the class receive to every single gift card holder not just gift card coulters who had a split tender transaction problem but all gift card holders and it went to them three times and after the third round of notice we know that the total amount holders who at one point had gift cards and for whatever reason didn't exhaust the available balance on their given card so people who used to do and had a fifty dollar youth who are good if you don't wear them whatever they are in this well that's correct your honor somebody who had a fifty dollars gift card exhausted the fifty dollars gift card what did not suffer any and injury even and unless they lied in responding to the elements on the claim form there should be no notice work by publication and it also work based on people who had registered their gift cards and provided that information to american express and went to everybody and the other point your honor that i want to address just quickly because your honor mentioned with respect to the redmen notice issue even if the court were inclined in this case to alter the whole women in redmond to apply to final fairness papers your honor mention the papers that were submitted in preliminary approval that actually goes even beyond that judge because in this case of course by the time we got to the final round of final approval there had been two prior rounds of final approval and actually judged in preparation for the oral argument i went in and we took a look at the docket at all of the things on the docket that were that were existed after preliminary approval and before final approval the third time and if i may just read them into the record but the class could have found on the docket in connection with the first round of final approval material that docket entries three five six three six four through three six seven three seven two and three seven six and then in connection with the second or around a final fairness approval the class could have found information at docket entries five zero four five zero nine five fifteen five seventeen and five twenty nine so even if the court were inclined to extend redmon to final fairness during papers in this case because we had three rounds by the time we got to the third round there were two rounds of final fairness approval your honor this was a fair settlement it was hotly negotiated a mess council said by multiple mediators the district judge was diligent and oversaw this case for many years we believe it's time for it to be approved thank you very much thank you very much mr bernard how much time left for rebuttal to take two minutes mr bernard focused on the nine point six million dollars and even if it is accepted that that is the net damages due to the split tender transactions it is only one category of the many damages that are laid out in the calvin complaint and which are being released by the settlement there are any number of claims that are being dismissed for which class members receive nothing the notice did not say anything whatsoever about you may be a member of this class but unless you get a b and c you will not get anything from the settlement i think the defendants as the proponents of the settlement had a duty to put in the notice a statement to that effect had a minimum your honor raised the question do you put chapter and verse in the notice the answer is no but a class member to go back to the redmen issue should not have to go back through twenty documents filed of record to see what the proponents say in favor of the settlement there should be one single document filed a couple of weeks prior to the opt out and exclusion date it's not very hard to do it's mostly the same brief that they filed in this case a month after the opt out date and has your honor recognized they can supplement the record if there are any objections and address those  object much was made of the fact that there were multiple mediators in the case mediators however good they may be only function well