[00:00:00] Speaker 00:
Good morning.

[00:00:00] Speaker 00:
May it please the court.

[00:00:02] Speaker 00:
My name is Tracy Kirkham, and I am the surviving founding partner of the appellant, Cooper and Kirkham.

[00:00:08] Speaker 00:
In 2015, my firm participated in a joint fee petition with all other plaintiffs' counsel in this litigation, in which it requested compensation for 5,108 hours of attorney time, directed principally to developing evidence against the Phillips defendant group.

[00:00:27] Speaker 00:
These attorney hours were evaluated by a special master and confirmed by the district court as having been high level work that contributed to the Phillips Group making the second largest contribution to the settlement fund.

[00:00:40] Speaker 00:
We were awarded a fee in 2017 of $3,452,040.

[00:00:52] Speaker 00:
In 2022, the same district court denied compensation for 2,554 of those attorney hours by cutting in half our 2017 fee award after adjusting

[00:01:06] Speaker 00:
for the 2020 amended settlements.

[00:01:09] Speaker 00:
That is about two years of an attorney working full time for no compensation.

[00:01:14] Speaker 00:
This calamity befell us because the district court made a blatant error of fact and a fundamental error of law.

[00:01:21] Speaker 00:
First, it found without any evidence that as lead counsel for the non repealer state subclasses, I took unspecified actions that caused a delay, quote, for a period of years, close quote,

[00:01:35] Speaker 00:
in the payment of claims submitted by settling members of repeal or state subclasses.

[00:01:41] Speaker 00:
There is a sort of surface logic to the idea that if a settlement approval order is appealed, it must delay something and that must ultimately delay payment to claimants.

[00:01:50] Speaker 00:
In fact, 20 years or so ago, my firm made that argument to this court in an attempt to secure an appeal bond.

[00:01:58] Speaker 00:
We were looking for a way to dampen the enthusiasm of a then-growing specialty bar, the professional objectors, lawyers who never met a settlement they couldn't appeal.

[00:02:08] Speaker 00:
The problem was we couldn't prove delay, and this court rightly rejected our bond request.

[00:02:14] Speaker 04:
But this situation is a little different, because we're dealing with a

[00:02:19] Speaker 04:
factual finding by the district court seems to me it's your obligation to establish that's clearly erroneous and frankly since the judges in this case have been living with this case I have a hard time

[00:02:32] Speaker 04:
believing there's evidence that there wasn't delay.

[00:02:35] Speaker 00:
There's no evidence in the record.

[00:02:37] Speaker 04:
You're asking the wrong question.

[00:02:39] Speaker 00:
No.

[00:02:39] Speaker 04:
Because your obligation now is to establish what the district court concluded was clearly erroneous, not that he didn't properly prove it.

[00:02:47] Speaker 04:
And so how can it be said there hasn't been delay because of the appeals of the settlement approval?

[00:02:55] Speaker 00:
because of the duration of claims processing in these cases.

[00:02:58] Speaker 04:
Well, you're asserting that, but I don't see proof of that.

[00:03:01] Speaker 04:
And if the obligation is on your side in this case to establish it's clearly erroneous, I'm not sure just telling us that, well, it would have been delayed anyway is going to be enough.

[00:03:10] Speaker 00:
No, claims processing isn't a delay.

[00:03:14] Speaker 00:
Claims processing is the time that it takes to review, to audit, to collect information, to track down the people who have moved,

[00:03:24] Speaker 00:
to find the people who write to you and tell you, my dad died, and the claim was in his name, and will you please now send the money to my mother, and all of that.

[00:03:34] Speaker 00:
That's not delay.

[00:03:35] Speaker 00:
That's part of doing this job.

[00:03:37] Speaker 04:
But the delay that is argued.

[00:03:41] Speaker 00:
And the settlement administrator set out in the only evidence we have about the duration of claims processing how long it took him

[00:03:51] Speaker 00:
to process the claims in this case.

[00:03:53] Speaker 00:
And there are two things that caused that process to be somewhat elongated from what it might have been otherwise.

[00:04:01] Speaker 00:
One is the fact that the council made the decision, and I'm not criticizing him for the decision, to tell the people who had filed claims in connection with the 2015 settlement, remember that one that came up to this court, and then the district court decided that it was wrong to have approved that settlement?

[00:04:19] Speaker 00:
The people who submitted claims in connection with the 2015 settlement did not have to resubmit claims in connection with the 2019 amended settlements.

[00:04:32] Speaker 00:
However, when those settlements were approved in the middle of 2020,

[00:04:37] Speaker 00:
the district court opened, reopened the claims period.

[00:04:40] Speaker 00:
And there had also been a lot of late-filed claims that came in from people who weren't aware of the appeal of the 2015 settlement.

[00:04:47] Speaker 00:
So they were coming in over the years.

[00:04:49] Speaker 00:
And if you read the declaration of the settlement administrator, which is in this record, it's 2ER 79 to 82.

[00:05:01] Speaker 00:
I'm sorry.

[00:05:03] Speaker 00:
That's actually a citation to the district court.

[00:05:07] Speaker 00:
If you look at the settlement administrator's recommendation or declaration, which is really the only evidence in the record about claims administration, he details everything he did for all of the years between 2015 and May of 2022.

[00:05:25] Speaker 00:
And interestingly enough, more than half of the money he was paid was paid to him

[00:05:33] Speaker 00:
between 2020 and 2022.

[00:05:35] Speaker 02:
I've got a slightly different cut on this case or different way of looking at it.

[00:05:42] Speaker 02:
You earned fees, three million dollars in change, based on your earlier work.

[00:05:48] Speaker 02:
That's correct.

[00:05:49] Speaker 02:
You were then really given a different client, then working for the different client.

[00:05:55] Speaker 00:
It was in the same class that I was working for.

[00:05:58] Speaker 00:
It was a subclass.

[00:05:59] Speaker 00:
But that's not an adversarial situation.

[00:06:02] Speaker 00:
That is a part of the same group that I was working for, just to make that clear.

[00:06:07] Speaker 02:
What I see the district court is doing in effect was now that you're representing I'll say a different client a client you can say a Sub subset that's different from the earlier set Punish you for working for that client and deducting the fee that you earlier earned

[00:06:24] Speaker 02:
But you don't quite make the argument that way.

[00:06:27] Speaker 00:
Well, it didn't deduct the fee that I it didn't deduct like work I did for the subclass I know that but I do know you don't understand my argument.

[00:06:34] Speaker 00:
I do my point Maybe you do maybe you don't I think I actually do make the argument in the in the part of my briefing that talks about What subclasses are and what subclass representation is?

[00:06:51] Speaker 00:
When a district court

[00:06:53] Speaker 00:
is looking at a settlement for approval, whether it's a settlement for part of a class or a global settlement for all of a class.

[00:07:00] Speaker 00:
It looks at that settlement with a fiduciary duty to the entire class.

[00:07:07] Speaker 00:
That duty never goes away.

[00:07:09] Speaker 00:
And so part of the district courts satisfying its fiduciary duty in this case was actually appointing me to be subclass counsel for class members who were not participating in the settlement.

[00:07:22] Speaker 00:
It didn't make me an enemy.

[00:07:23] Speaker 04:
How did you come to be that counsel?

[00:07:26] Speaker 00:
I volunteered for it, which has happened in, I mean, my firm has been lead counsel in decades of cases and had leadership roles.

[00:07:36] Speaker 00:
And I can't tell you how many cases there are issues that come up for subclasses.

[00:07:42] Speaker 00:
And counsel who have been counsel for the class frequently volunteer to be counsel for the subclasses, in fact,

[00:07:48] Speaker 00:
In my briefs, I cited a Ninth Circuit case where I think it was the defendants argued that if you were counsel for the class, you had a conflict in becoming counsel for the subclass.

[00:07:58] Speaker 00:
And this court rejected that and said, no, you don't have a conflict.

[00:08:02] Speaker 03:
Judge Kasper.

[00:08:02] Speaker 03:
Excuse me.

[00:08:04] Speaker 03:
Counsel, did C&K have any residual duty to protect the interests of the nationwide class as a whole following its appointment as subclass counsel?

[00:08:18] Speaker 00:
Yes, I believe that not only did I have that duty, I believe that lead counsel, Mr. Alioto, had a duty to my subclass members as I had a duty to his subclass members as part of our duty to the class as a whole, which kind of got lost in this entire thing.

[00:08:34] Speaker 00:
I think the district court looked at the subclasses like we were traditional adversaries.

[00:08:40] Speaker 00:
plaintiffs and defendants in front of it, instead of what was sort of like a family dispute.

[00:08:46] Speaker 00:
Subclass disputes are settled within the context of the bounds of the unified class.

[00:08:54] Speaker 00:
The objective is not to let the subclass disputes

[00:08:57] Speaker 00:
blow the class apart and turn this subclass, the settling subclass, into the adversary of the non-settling subclass, and so we get to fight it out with nuclear weapons.

[00:09:08] Speaker 00:
The idea is to resolve those disputes, and I certainly believe that I did everything I could to resolve the dispute.

[00:09:16] Speaker 03:
In fact... What do you make of the... Sorry.

[00:09:17] Speaker 03:
What do you make of the argument?

[00:09:18] Speaker 00:
...of those fiduciary duties, and nothing that I... Stop, stop, stop.

[00:09:23] Speaker 00:
Okay.

[00:09:23] Speaker 03:
What do you make of the argument dealing with the district court's approval of the allocation that the expected value of the claims that CNK, for example, sought to preserve by objecting to the settlement was about zero dollars, whereas the considerable

[00:09:50] Speaker 03:
lost time value of money that would have been awarded to settling class members was in the millions of dollars.

[00:10:02] Speaker 00:
First of all, that was not a finding.

[00:10:07] Speaker 00:
In fact, it was an off the cuff remark.

[00:10:08] Speaker 00:
Second of all, once I was appointed by the district court,

[00:10:13] Speaker 00:
to protect the interests of the NRS subclasses.

[00:10:17] Speaker 00:
I was appointed to protect their interests, their claims, good, bad, and ugly.

[00:10:22] Speaker 00:
I had a fiduciary obligation to advance those claims to the best of my ability, not to evaluate them and say, oops, I'm not going to push that because of the fact that the settlement's going to erase the ability for this class to pursue its claims as a class action.

[00:10:38] Speaker 00:
Well, I'm deciding their claims aren't good anyway.

[00:10:41] Speaker 00:
The fact that the court recognized that it had a fiduciary duty to that subclass, recognized it as a subclass, recognized that it had a duty to appoint counsel for that subclass, meant that its off the cuff remark about whether its claims were good or bad was sort of obliterated by the fact that it appointed counsel to advance those claims.

[00:11:02] Speaker 00:
And that became my duty.

[00:11:04] Speaker 03:
You say it's an off the cuff response,

[00:11:08] Speaker 03:
if you could help me understand this and believe me, there's a lot of history in this case.

[00:11:15] Speaker 03:
Page three of the district court's opinion, which we are reviewing and which my colleagues have referenced, the judge said, because of the delay, some class members will not receive any benefits from the settlements because they have died, will not be able to

[00:11:36] Speaker 03:
to be found or are companies that have gone bankrupt or no longer exist.

[00:11:42] Speaker 03:
And the class members who did receive benefits will be receiving them years later than they would have without subclass council's efforts.

[00:11:52] Speaker 03:
Is that what you consider to be off the cuff?

[00:11:55] Speaker 00:
No, no, no.

[00:11:56] Speaker 00:
The reference you made to the zero was in an older, a prior hearing before the district court appointed subclass counsel for the NRS subclasses.

[00:12:04] Speaker 00:
That's what I was referring to as off the cuff.

[00:12:06] Speaker 00:
But that whole statement, the premise of that is that there was a delay that I caused.

[00:12:13] Speaker 00:
And there is no evidence in the record.

[00:12:16] Speaker 00:
There's no evidence in the record that the class members could have- Here we go.

[00:12:20] Speaker 04:
Come right back to the- Stop!

[00:12:21] Speaker 04:
When a judge asks you a question, you should stop and listen to the question, not try to talk over the judge, because we're not going to be listening to what you're saying when we're trying to ask a question.

[00:12:29] Speaker 04:
I apologize.

[00:12:30] Speaker 04:
And we go right back to the question I posed earlier, which is, what evidence do you offer from the record that establishes what the district court said was clearly erroneous?

[00:12:40] Speaker 04:
You've made a general reference to an administrator's declaration.

[00:12:44] Speaker 04:
Perhaps before the end of the day, you can tell us where we could find that.

[00:12:50] Speaker 04:
But I'm still not sure what it is you're pointing to if you insist that, well, they've got a burden to show something from the record.

[00:12:59] Speaker 04:
I don't think that's how it is here.

[00:13:01] Speaker 04:
And I guess I should also ask you plan to reserve any time for rebuttal.

[00:13:04] Speaker 00:
I did.

[00:13:05] Speaker 00:
I'm down to two minutes.

[00:13:06] Speaker 00:
Could I answer your question and reserve two minutes for rebuttal?

[00:13:08] Speaker 00:
Please.

[00:13:09] Speaker 00:
Thank you.

[00:13:10] Speaker 00:
The district court's finding of delay needs to be grounded in some evidence in the record

[00:13:18] Speaker 00:
that the class members could have been paid, as the District Court put it, years earlier than they were paid.

[00:13:26] Speaker 00:
There is no evidence of that in the record.

[00:13:29] Speaker 00:
There is no evidence that claims processing was concluded before May of 2022.

[00:13:39] Speaker 00:
And there was no evidence that I played any part in the duration of claims processing.

[00:13:46] Speaker 00:
The settlement administrator's declaration, and I will get you the site in a moment, the settlement administrator's declaration

[00:13:54] Speaker 00:
covers what he did from 2015 to May of 2022 to process claims.

[00:14:03] Speaker 00:
There were old claims.

[00:14:04] Speaker 00:
The claims period was reopened.

[00:14:06] Speaker 00:
I think we have your point.

[00:14:07] Speaker 04:
We'll still give you two minutes for rebuttal.

[00:14:10] Speaker 00:
Thank you.

[00:14:13] Speaker 04:
And we will hear from Mr. Alioto.

[00:14:24] Speaker 01:
Good morning, Your Honors.

[00:14:26] Speaker 01:
Mario Alioto.

[00:14:27] Speaker 01:
I'm the lead counsel for the indirect purchaser plaintiff class in this case, a case which was filed in November of 2007.

[00:14:39] Speaker 01:
We're coming up on our 17-year anniversary in November.

[00:14:47] Speaker 01:
We should have been done years ago.

[00:14:52] Speaker 01:
The last duty I had in wrapping up this case was to allocate the fee we were awarded, allocate that fee among 50 firms.

[00:15:06] Speaker 01:
I thought the underlying case was tough.

[00:15:10] Speaker 01:
That allocation process was difficult, but we got it done.

[00:15:15] Speaker 01:
And 49 firms were paid.

[00:15:18] Speaker 01:
The matter was completely resolved.

[00:15:21] Speaker 01:
Among those 49 firms were two other firms that had 50% cuts because they had activities very similar to the Cooper and Kirkham firm.

[00:15:33] Speaker 01:
Those matters, they accepted those fees in those cases.

[00:15:38] Speaker 01:
So we just have this one final allocation to the Cooper firm.

[00:15:43] Speaker 01:
And that is the last thing that's standing in our way to getting this resolved.

[00:15:48] Speaker 01:
This is really quite clear.

[00:15:51] Speaker 01:
And we have to, as Your Honor alluded to, there's this interplay between delay and claims processing.

[00:16:00] Speaker 01:
This is absolutely fundamental.

[00:16:03] Speaker 01:
You cannot pay claims until you have a final judgment.

[00:16:10] Speaker 01:
The final judgment in this case was delayed for years.

[00:16:15] Speaker 01:
We've detailed in the brief all of these various activities.

[00:16:18] Speaker 01:
I don't want to get into it.

[00:16:20] Speaker 04:
We've kind of lived it.

[00:16:21] Speaker 04:
So we understand how long this has been around.

[00:16:23] Speaker 04:
And that's just the appellate stage.

[00:16:25] Speaker 04:
But let me focus on the particular challenge, which is that the payments wouldn't have been made anyway because the claims processing would have taken

[00:16:38] Speaker 04:
as long, and so there was no actual delay.

[00:16:42] Speaker 01:
I want to make this clear.

[00:16:46] Speaker 01:
I went back and reviewed the briefs and discussed with my colleague this argument.

[00:16:52] Speaker 01:
And the fundamental problem is this, Your Honor.

[00:16:58] Speaker 01:
This evidence that the appellant has been referring to is a declaration

[00:17:06] Speaker 01:
of the claims administrator.

[00:17:08] Speaker 01:
They refer in the brief to a report.

[00:17:12] Speaker 01:
Well, the claims administrator doesn't make a report.

[00:17:16] Speaker 01:
We file a motion to pay claims, and the claims administrator supports that with a declaration setting forth everything the court needs to know so that the court can order the payment of the claims.

[00:17:30] Speaker 01:
But here is the very important thing about what we're dealing with here.

[00:17:35] Speaker 01:
And I don't want to get into this.

[00:17:36] Speaker 01:
I'm sure you hear this all the time.

[00:17:38] Speaker 01:
Something wasn't raised in the trial court, and this wasn't raised, that wasn't raised.

[00:17:43] Speaker 01:
I don't want to get into that because it's wasting valuable time.

[00:17:48] Speaker 01:
But this case does have four issues on appeal.

[00:17:54] Speaker 01:
Three of them were not raised in the district court, including this issue.

[00:17:58] Speaker 01:
And let me get a little more specific with this claims processing issue.

[00:18:05] Speaker 01:
The motion in the trial court to allocate the fees, which is the order arising from that, is the order we're here on today under review.

[00:18:21] Speaker 01:
That matter was under submission in April of 2022.

[00:18:28] Speaker 01:
The motion to allocate the fee was done.

[00:18:32] Speaker 01:
It was closed.

[00:18:35] Speaker 01:
All of these arguments that are being made here today were not made on that motion.

[00:18:42] Speaker 01:
After that motion, two or three months later, there was another motion.

[00:18:48] Speaker 01:
After we got the fees taken care of, we went into the court and we said, Your Honor, we're ready to go.

[00:18:54] Speaker 01:
We have finality.

[00:18:56] Speaker 01:
We have the attorney's fees resolved.

[00:18:59] Speaker 01:
Now we want to.

[00:19:02] Speaker 01:
Pay the money, and we want your permission to do it.

[00:19:06] Speaker 01:
In conjunction with that motion, two months later, two or three months later, the claims administrator filed a declaration.

[00:19:20] Speaker 01:
It's actually an amended declaration.

[00:19:24] Speaker 01:
Do you happen to know where it is?

[00:19:29] Speaker 01:
2ER2.

[00:19:30] Speaker 01:
2ER2.

[00:19:32] Speaker 01:
And that is what the appellant has been referring to.

[00:19:38] Speaker 01:
This is a filing two months after the fee allocation motion was submitted.

[00:19:51] Speaker 01:
Now, and this obviously was not part of those proceedings because it came after.

[00:19:58] Speaker 01:
Now, all of a sudden on this appeal,

[00:20:02] Speaker 01:
This declaration in an unrelated proceeding is the centerpiece of this argument on appeal.

[00:20:11] Speaker 01:
Okay, so what?

[00:20:14] Speaker 01:
Well, so what?

[00:20:15] Speaker 01:
There's no record.

[00:20:17] Speaker 02:
Let me ask a different question, and I asked a version of it from your adversary earlier.

[00:20:22] Speaker 02:
Let's assume that the Cooper and Kirkham firm had done the work, the hours that we're talking about, and had never been assigned the additional work with this subclass with, in a sense, a new kind of new client.

[00:20:37] Speaker 02:
Would they be entitled to the fee that they'd earlier earned if they'd never done the work that caused the delay?

[00:20:42] Speaker 02:
I'm assuming the delay was caused

[00:20:44] Speaker 01:
I'm not sure I understand the question.

[00:20:46] Speaker 02:
Okay, your argument is, and the district court seemed to have said, I'm cutting the fee in half because of the delay that they've caused, that they should not have caused.

[00:20:56] Speaker 02:
Assume that the Cooper and Kirkham firm was never assigned this new task, and they'd never caused any delay.

[00:21:05] Speaker 02:
Would they be entitled to the entire fee of $3 million and change?

[00:21:09] Speaker 01:
Well, no, Your Honor, because there were other problems.

[00:21:12] Speaker 01:
I mean, this is one component of the judge's ruling.

[00:21:16] Speaker 01:
In the record and in our briefs, we've detailed not only did they cause delay, when they came in and inserted themselves into the litigation, one of the first things that Cooper and Kirkham did, along with some of these other objectors, was come into the court and ask them to vacate the judgment.

[00:21:38] Speaker 01:
I don't know what could be more... Sounds like that's more delay.

[00:21:44] Speaker 01:
It's also delay.

[00:21:46] Speaker 01:
If they had taken no action, they would have had their fee.

[00:21:49] Speaker 01:
They would have been subject to the formula.

[00:21:53] Speaker 01:
There would have been no reduction, but their circumstances are completely different.

[00:21:57] Speaker 02:
The answer to my question is yes.

[00:22:00] Speaker 02:
If they hadn't done any of this later, they would be entitled to the fee.

[00:22:03] Speaker 02:
Well, it sounds as though they were working for a different, I'll call it different client, but a different subclass, and they're being punished for the work that they did, not saying that you didn't do the work earlier and it wasn't worth anything.

[00:22:15] Speaker 02:
So that's a really odd way to calculate attorney's fees.

[00:22:18] Speaker 01:
Well, let me say this about subclass.

[00:22:21] Speaker 01:
Let me say this about subclass.

[00:22:24] Speaker 01:
This is a law firm that inserted themselves into the litigation.

[00:22:30] Speaker 01:
There's no subclass here.

[00:22:32] Speaker 01:
There is no subclass.

[00:22:34] Speaker 02:
Are you answering my question?

[00:22:37] Speaker 01:
I'm trying to, and I'm trying to give some background on this, and I'm aware of these duties to subclasses, but in this case, there is no subclass.

[00:22:47] Speaker 01:
There is no, Judge Tiger didn't say, I want to reach out to somebody and represent subclasses.

[00:22:54] Speaker 01:
There's no complaint.

[00:22:56] Speaker 02:
Let me reformulate the question.

[00:22:58] Speaker 02:
I think it can be more readily understood.

[00:23:00] Speaker 02:
The firm did a lot of work for which they were awarded, or at least on paper awarded, $3 million in change.

[00:23:06] Speaker 02:
The firm then got a new assignment, and in the prosecution of that assignment, I'll take your version of the facts, that they caused a lot of delay.

[00:23:18] Speaker 02:
It looks to me as though Judge Tiger is punishing them for causing the delay by deducting from their fees the fees that they'd earned earlier, not that they hadn't earned them before, but it's basically that they've misbehaved later.

[00:23:31] Speaker 02:
How's that a mistake as to what actually happened?

[00:23:34] Speaker 02:
Am I describing things incorrectly?

[00:23:36] Speaker 01:
Here's where I differ with Your Honor's description with all due respect, Your Honor.

[00:23:42] Speaker 01:
There was no assignment from Judge Tiger.

[00:23:48] Speaker 01:
This law firm inserted themselves into the case.

[00:23:52] Speaker 02:
Then we still are not talking about the same thing.

[00:23:54] Speaker 02:
As I read Judge Tiger for purpose of my question, he is not saying you didn't earn the fees earlier, but he's punishing the firm for behavior that they did later.

[00:24:03] Speaker 01:
No, Your Honor.

[00:24:05] Speaker 01:
There is no element of punishment here.

[00:24:07] Speaker 01:
What Judge Tiger did.

[00:24:08] Speaker 02:
But I assume Judge Tiger deducts from the fee based on the behavior that was later, correct?

[00:24:15] Speaker 01:
Judge Tiger assessed the fee.

[00:24:18] Speaker 01:
There was no, he didn't come out and say, I'm gonna take these hours away or I'm gonna reduce your hourly rate.

[00:24:24] Speaker 01:
What Judge Tiger did under that, I believe it's FPI Agritech, that's the leading case on fee allocation, what the judge should do.

[00:24:35] Speaker 01:
The judge has broad discretion under that case, Ninth Circuit case.

[00:24:39] Speaker 01:
And what the judge did is weigh the contributions of Cooper and Kirkham

[00:24:46] Speaker 01:
vis-a-vis the contributions of all of the other lawyers.

[00:24:50] Speaker 01:
And all of the other lawyers, or at least a large portion of them, continued to work on the case and support the case and seek the settlement approval.

[00:25:00] Speaker 01:
And they were up here when we came the last time we were here.

[00:25:04] Speaker 01:
We were here to get the amended settlements approved, which were approved.

[00:25:08] Speaker 01:
And there were a number of lawyers in the case that were working on this case all the way up

[00:25:13] Speaker 01:
years and years after the conclusion of the settlements.

[00:25:17] Speaker 01:
The Cooper firm was working at odds to the case.

[00:25:22] Speaker 01:
They were impeding the resolution of the case.

[00:25:25] Speaker 01:
They were putting the case at risk.

[00:25:29] Speaker 01:
And under that

[00:25:30] Speaker 01:
the Agritech case, the judge has broad discretion.

[00:25:34] Speaker 01:
He's been living with this case for not the whole 17 years, because Judge Conte was the judge initially, but he came in after Judge Conte, and he knows firsthand what went on in this case.

[00:25:47] Speaker 01:
And this is not a case, with all due respect to my brethren at the bar, this is a case of extreme mischief.

[00:25:58] Speaker 01:
This is a case of lawyers inserting themselves into a settlement, a very, very successful settlement, inserting themselves into a case that had been settled, trying to reopen it.

[00:26:13] Speaker 01:
And all of this is predicated upon non-viable claims.

[00:26:21] Speaker 01:
Now, let me just put out.

[00:26:26] Speaker 04:
Was it seven years ago or something?

[00:26:28] Speaker 04:
We started talking about this.

[00:26:30] Speaker 04:
And at that point, you were lead counsel for a class that included more than the group of people that were going to receive a payment under the settlement.

[00:26:44] Speaker 04:
And that actually was the nub of the problem at that point.

[00:26:49] Speaker 04:
And so

[00:26:51] Speaker 04:
It probably was pretty clear from, indeed it was clear, because we were asked to hold off and send the mediation and so forth.

[00:26:57] Speaker 04:
The resolution that ultimately came out of the process when it went back to the district court, and we've approved the settlement, so I'm not saying that's an issue, was to break the class into pieces.

[00:27:15] Speaker 04:
Well, at the start,

[00:27:18] Speaker 04:
As lead counsel, you had obligations to everybody, and all the other counsel had obligations to everybody.

[00:27:24] Speaker 04:
And at some point, the district court decided that had to be broken up.

[00:27:29] Speaker 04:
I understand that you've said and Ms.

[00:27:31] Speaker 04:
Kirkham has acknowledged that they weren't pulled out, they weren't drafted for the assignment.

[00:27:38] Speaker 04:
They volunteered for and were given the assignment of representing the NRS subclass and somebody else had the ORS, I guess.

[00:27:50] Speaker 04:
And what happened to your responsibilities at that point as lead class counsel

[00:27:58] Speaker 04:
to the people that fell within the NRS subclass.

[00:28:02] Speaker 01:
We made the decision initially and we held to this view all along that this nationwide injunctive relief class was not viable, your honor.

[00:28:20] Speaker 01:
So let me put a little flesh on the bones here.

[00:28:25] Speaker 01:
At one time,

[00:28:26] Speaker 01:
back in 2007, there was a claim for injunctive relief in the case.

[00:28:35] Speaker 01:
And that meant

[00:28:37] Speaker 01:
that we wanted to recover damages, of course, for the overcharges.

[00:28:42] Speaker 01:
And we also sought or alleged a requested relief in join the defendants from further price fixing.

[00:28:52] Speaker 01:
It's quite common in these cases.

[00:28:54] Speaker 01:
You seek damages.

[00:28:55] Speaker 01:
You seek an injunction against further price fixing.

[00:28:58] Speaker 01:
15, 16, 17 years down the road, that didn't make sense anymore.

[00:29:07] Speaker 01:
Number one, the product has gone the way of the buffalo.

[00:29:10] Speaker 04:
I still have a cathode ray tube, more than 20 years old now, television in my chambers.

[00:29:18] Speaker 04:
But yes, the issues, the time has marched on.

[00:29:21] Speaker 04:
And so, OK, the induction wouldn't matter.

[00:29:23] Speaker 01:
So the claim was no longer viable because the product was no longer in existence.

[00:29:29] Speaker 01:
It had gone the way of the dinosaurs.

[00:29:31] Speaker 01:
So it didn't make much sense to enjoin these defendants from fixing prices on a product that no longer existed.

[00:29:42] Speaker 03:
Could I ask you a quick question?

[00:29:44] Speaker 03:
Yes, Your Honor.

[00:29:45] Speaker 03:
It's sort of a broader policy question, returning to the

[00:29:49] Speaker 03:
questions by my colleagues.

[00:29:53] Speaker 03:
What is your response to C&K's argument that holding in your favor would discourage counsel from representing subclasses in the future?

[00:30:04] Speaker 03:
That here, plaintiffs counsel who have invested thousands of attorney hours in litigating against the defendants, as C&K did here,

[00:30:13] Speaker 03:
will not jeopardize their compensation by undertaking representation of a late identified subclass.

[00:30:20] Speaker 01:
No deterrent whatsoever.

[00:30:22] Speaker 01:
No deterrent whatsoever, Your Honor, because if they want to represent those subclasses, they can do it early on.

[00:30:34] Speaker 01:
They can do it when it became apparent

[00:30:37] Speaker 01:
In this case, in 2012, it was apparent that we weren't pursuing these claims.

[00:30:43] Speaker 01:
They didn't jump on the bandwagon then.

[00:30:45] Speaker 01:
They could have, and then the cases would have proceeded together.

[00:30:49] Speaker 01:
They came in and asserted themselves after settlements, after the money was in the bank, after fees were being considered by the court.

[00:30:59] Speaker 01:
So this is a very novel situation.

[00:31:04] Speaker 02:
But who divided it up into the subclass?

[00:31:07] Speaker 02:
I thought it was the district court.

[00:31:08] Speaker 02:
I don't think they divided it up into the subclass.

[00:31:13] Speaker 01:
There are no subclasses, Your Honor.

[00:31:15] Speaker 01:
There is no complaint by this group.

[00:31:20] Speaker 01:
If there's no complaint, there can't be any subclass.

[00:31:23] Speaker 02:
Well, we've been talking about subclasses.

[00:31:25] Speaker 02:
Are you now changing our working definition of subclass?

[00:31:27] Speaker 01:
Subclass is not our term.

[00:31:29] Speaker 01:
Subclass is their term.

[00:31:30] Speaker 01:
What it really is is a hopeful subclass that someday is going to arise.

[00:31:39] Speaker 02:
Well, but the district court seemed to think there was such a group and assigned them to represent that group.

[00:31:45] Speaker 01:
The district court was confronted with people saying, there are viable claims.

[00:31:52] Speaker 01:
We want to represent these claims.

[00:31:54] Speaker 01:
Mr. Alioto did a tremendous disservice, and he didn't pursue these claims, which we didn't pursue them because they were not viable.

[00:32:03] Speaker 01:
And they're not viable to this day.

[00:32:06] Speaker 01:
which let me just put a footnote on that comment, these claims that their argument is based on, these underlying claims, what happened to them?

[00:32:19] Speaker 01:
What happened to them?

[00:32:20] Speaker 01:
They haven't pursued them.

[00:32:22] Speaker 01:
They wanted to inject themselves in litigation.

[00:32:26] Speaker 01:
at the fee stage, at the settlement and the fee stage, inject themselves in the litigation and jump on the bandwagon.

[00:32:33] Speaker 01:
They didn't want to pursue these claims independently.

[00:32:36] Speaker 01:
And if they wanted to pursue them independent of this major litigation that we were handling, why haven't they pursued those claims?

[00:32:44] Speaker 01:
And as we mentioned in our brief, once they couldn't jump on our bandwagon, they didn't pursue the claims

[00:32:52] Speaker 04:
Well, in renegotiating the agreement with defendants, defendants managed to save, what is it, $29 million by not obtaining releases from these parties who, you tell us, did not have viable claims.

[00:33:06] Speaker 04:
And you agreed to that discount and wound up indeed taking it out of the attorney's fees allocation.

[00:33:14] Speaker 04:
How can we take as a given that these claims were valueless because you wound up giving up $29 million in exchange for not giving defendants releases?

[00:33:25] Speaker 01:
That's a very good question, Your Honor.

[00:33:28] Speaker 01:
We gave up $29 million for claims that were worthless.

[00:33:34] Speaker 01:
And why did we do it?

[00:33:36] Speaker 01:
Because we were caught in a conflict with our clients, our class members.

[00:33:43] Speaker 01:
And I had the choice of not doing that and litigating and showing that those claims were valueless, or the choice of keeping those class members whole and taking it out of the attorney's fees.

[00:34:00] Speaker 01:
That's why we did that.

[00:34:02] Speaker 01:
We didn't do it because they were valuable.

[00:34:04] Speaker 01:
We did it because it was our duty to the class.

[00:34:10] Speaker 01:
The way we characterize that, I think Your Honor said we paid them or we gave up the releases or gave them money for the releases.

[00:34:18] Speaker 01:
What we really did there was give a $29 million windfall to the defendants because of the action of these objecting counsel.

[00:34:28] Speaker 01:
And no one to this day has pursued those claims.

[00:34:33] Speaker 01:
Absolutely tragic.

[00:34:34] Speaker 01:
The years and years of litigation here all premised on this premise.

[00:34:44] Speaker 01:
We want to represent these people.

[00:34:47] Speaker 01:
They have valuable claims.

[00:34:49] Speaker 01:
We're going to get them money.

[00:34:51] Speaker 01:
What happened to that?

[00:34:52] Speaker 01:
Nothing.

[00:34:53] Speaker 01:
Nothing.

[00:34:54] Speaker 01:
It was a fake.

[00:34:57] Speaker 01:
It was a pretext.

[00:34:59] Speaker 01:
This is about an attempt to jump on the bandwagon of a very, very successful litigation handled by a number of firms.

[00:35:09] Speaker 01:
I'm not up here blowing my own horn.

[00:35:11] Speaker 01:
There were a lot of firms involved, and they did a wonderful, wonderful job.

[00:35:15] Speaker 01:
And at the end, the efforts got sabotaged.

[00:35:20] Speaker 01:
That's what this is about.

[00:35:22] Speaker 01:
And Judge Tiger, in his broad discretion under the Agritech case, he didn't cut fees or chop fees down.

[00:35:32] Speaker 01:
He assessed their fees, Cooper and Kirkham's fees, vis-a-vis the work that other people in the case did, other firms in the case did.

[00:35:44] Speaker 04:
Given the order says 50% reduction, it's hard for me to see how he didn't chop fees down.

[00:35:50] Speaker 04:
I mean, he didn't try to.

[00:35:52] Speaker 04:
He didn't explain any other approach, any other reason to calculate to the number that he ultimately is prepared to award them.

[00:36:01] Speaker 04:
So, I mean, we can talk about whether it's punitive, but certainly the method of calculation seemed to be we're going to cut him in half.

[00:36:08] Speaker 04:
Agreed, Your Honor.

[00:36:09] Speaker 04:
Agreed.

[00:36:10] Speaker 02:
And cut him in half based upon what he saw as bad behavior.

[00:36:14] Speaker 01:
Yes.

[00:36:15] Speaker 01:
And if anyone was in a position to assess that, it was him.

[00:36:19] Speaker 02:
But that doesn't mean they didn't do the work that entitled them to the fees in the first place, because it suggests to me that, absent the bad behavior, they would have been awarded the $3 million in change.

[00:36:31] Speaker 02:
Absent what he considered to be the bad behavior, they would have got the full amount.

[00:36:35] Speaker 01:
Yes.

[00:36:36] Speaker 01:
And if you compensated them along those lines, that would be unfair to the people that continued to work in the case.

[00:36:44] Speaker 01:
What about the firms of half a dozen firms who are continuing to work on the case, and they would be compensated in the same fashion as Cooper and Kirkham, who are attempting to stall the case, undermine the case, and vacate the settlements?

[00:37:04] Speaker 01:
in, in Judge Tiger's broad discretion.

[00:37:07] Speaker 01:
That's what AgriTech says.

[00:37:08] Speaker 02:
So you're saying, maybe you're going to disagree with my characterization here.

[00:37:12] Speaker 02:
You're saying that it is, it is properly within Judge Tiger's broad discretion to cut a fee that otherwise would have been proper in half based upon later bad behavior.

[00:37:24] Speaker 01:
Absolutely, Your Honor, absolutely.

[00:37:27] Speaker 01:
And furthermore, not only is it within his broad discretion, but we cited the Fox case in the United States Supreme Court.

[00:37:38] Speaker 01:
These fee discussions or fee decisions in the district court are entitled to great deference

[00:37:49] Speaker 01:
They're entitled to deference under that case.

[00:37:53] Speaker 03:
Is there a notice issue here though?

[00:37:56] Speaker 03:
In other words, should the district court have warned CNK whether at the time of appointment as subclass counsel or at some later stage that representing the subclass might result in a reduced attorney fee award?

[00:38:14] Speaker 01:
Well, that's an interesting question.

[00:38:16] Speaker 01:
At the time they came in and inserted themselves into the, into the case.

[00:38:22] Speaker 01:
Um, the judge noted that these claims that you are bringing, he was talking now about damage claims.

[00:38:31] Speaker 01:
He noted, as other, I think even this court has noted that in prior hearings, he noted that, I don't see where those cases are going.

[00:38:41] Speaker 01:
The claims don't seem to be valuable to me.

[00:38:44] Speaker 04:
So they were- Well, they were valuable enough so that you agreed to a discount in the attorney's fees to benefit the defendant.

[00:38:51] Speaker 04:
I think, frankly, what I anticipated when

[00:38:55] Speaker 04:
Everybody left the room.

[00:38:56] Speaker 04:
The first time, let's go back to the more mediation, was that something was going to be done to give something to the parties who were, the class members who were expected to give up a release.

[00:39:07] Speaker 04:
Instead, what happened is that they were left out and defendants got the benefit.

[00:39:11] Speaker 04:
Now, I don't want to know how it got to that result, but it becomes hard to say that C and K was talking to sabotage the class as a whole.

[00:39:25] Speaker 04:
Although they did oppose the settlement, it's pretty plain what they were trying to do was get the piece of the action that wound up going to defendants instead.

[00:39:36] Speaker 04:
It just does seem like Judge Tiger decided, well, these are the fall guys.

[00:39:43] Speaker 04:
Am I wrong in my perception?

[00:39:45] Speaker 01:
Well, they are not fall guys, and they are not alone.

[00:39:49] Speaker 01:
There were two other firms that were treated exactly the same way, Your Honor.

[00:39:53] Speaker 04:
They've dropped out now.

[00:39:54] Speaker 01:
Yes.

[00:39:54] Speaker 01:
Well, neither one of them appealed.

[00:39:57] Speaker 01:
One accepted the money.

[00:39:58] Speaker 01:
The other one also accepted it and appealed on some other grounds.

[00:40:04] Speaker 01:
It had nothing to do with this.

[00:40:06] Speaker 01:
And that appeal was summarily affirmed.

[00:40:09] Speaker 01:
So that was gone.

[00:40:12] Speaker 01:
But the important point,

[00:40:14] Speaker 01:
I want to make, I'm going to think ahead here because I'm not going to get any time to reply.

[00:40:21] Speaker 01:
Coming back to this point about Cooper and Kirkham have never pursued these claims.

[00:40:29] Speaker 01:
They tried to pursue them as part of this litigation in the district court, and Judge Tiger said, no, you can't come into this case.

[00:40:40] Speaker 01:
You have to file a separate action.

[00:40:44] Speaker 02:
And then go to the panel on multi-district litigation and bring you know you keep saying that they inserted themselves into the litigation and I assume what you're talking about is Representing this subclass later on but obviously they'd have been in the litigation before because they'd earned three million dollars and change So what do you mean by inserting themselves into this litigation inserting themselves in?

[00:41:08] Speaker 01:
on to represent new clients they had a client you're right your honor they had a client in the underlying case yeah so it's not you're not saying that they didn't earn the the initial three million dollars you're just saying that the deduction based on their later behavior is appropriate yes

[00:41:26] Speaker 01:
Yes.

[00:41:27] Speaker 01:
And when they did this, they abandoned or they withdrew from representing their original client.

[00:41:36] Speaker 01:
And then they took on new clients with new claims.

[00:41:40] Speaker 01:
And again, they have to be treated differently.

[00:41:44] Speaker 01:
Look, we have no axe to grind here.

[00:41:48] Speaker 01:
We're trying to allocate a fee.

[00:41:50] Speaker 01:
We're trying to get 50 firms happy.

[00:41:55] Speaker 01:
in consultation with some of these firms.

[00:41:57] Speaker 01:
I didn't just make this decision out of thin air.

[00:41:59] Speaker 01:
We kicked it around.

[00:42:00] Speaker 01:
We talked about it.

[00:42:02] Speaker 01:
We said, what's fair here?

[00:42:03] Speaker 01:
What's fair is we're going to do a formula.

[00:42:06] Speaker 01:
And there are three firms that caused additional problem at the settlement phase.

[00:42:13] Speaker 01:
And they're going to be treated differently.

[00:42:15] Speaker 01:
And we thought that was fair.

[00:42:16] Speaker 04:
And what happens to the money that otherwise would have gone to them?

[00:42:20] Speaker 01:
That money, hopefully once this case is affirmed,

[00:42:25] Speaker 01:
That money has been held back and will be distributed back to all of the firms that kicked in.

[00:42:33] Speaker 01:
We had all of the firms kick in a pro-rata amount to hold in reserve.

[00:42:39] Speaker 01:
So if there was a reversal, we'd have the fund to pay that.

[00:42:44] Speaker 01:
If there's an affirmance, that money's going to go back to the

[00:42:47] Speaker 01:
to the other firms.

[00:42:49] Speaker 01:
There's some discussion in the brief that we're going to take that money or we have a vested interest in that money.

[00:42:55] Speaker 01:
No, we don't have any vested interest in this.

[00:42:58] Speaker 01:
This is one out of 50 firms that we're trying to get resolved.

[00:43:03] Speaker 01:
And if there is an affirmance, the money that we've held back is going to go to all of these other firms that have continued to work on this case.

[00:43:13] Speaker 04:
We've kind of blown the time schedule.

[00:43:15] Speaker 04:
Do you have anything to say to wind it up?

[00:43:16] Speaker 01:
I apologize.

[00:43:18] Speaker 01:
I'm not going to get a chance to reply.

[00:43:20] Speaker 04:
Well, not your fault.

[00:43:21] Speaker 04:
We've taken you there, but.

[00:43:23] Speaker 01:
Thank you.

[00:43:23] Speaker 01:
I'm not going to get a chance, but I said they haven't pursued the claims.

[00:43:29] Speaker 01:
I suspect we're going to hear the appellant say, it's not worth this.

[00:43:35] Speaker 01:
Under the law, we can't pursue these claims because we can't pursue a class action under the law.

[00:43:43] Speaker 01:
And therefore, it's not worth it.

[00:43:46] Speaker 01:
Well, what about the individual claim?

[00:43:48] Speaker 01:
They represent a client.

[00:43:50] Speaker 01:
They have a client.

[00:43:51] Speaker 01:
The client can bring a claim for injunctive relief.

[00:43:54] Speaker 01:
The client can bring a claim for a damage claim.

[00:43:58] Speaker 01:
He can bring whatever he want.

[00:43:59] Speaker 01:
And under the law, under the Sherman Act, you're entitled to your attorney's fees.

[00:44:03] Speaker 01:
So I have no- I think we have your point.

[00:44:07] Speaker 01:
Yeah.

[00:44:08] Speaker 01:
Thank you, Your Honor.

[00:44:09] Speaker 01:
Very good.

[00:44:09] Speaker 01:
Any further questions?

[00:44:14] Speaker 04:
I apologize to Ms.

[00:44:15] Speaker 04:
Capuro, but we don't have any time left, so.

[00:44:18] Speaker 00:
It's okay.

[00:44:20] Speaker 00:
I will point out that my opponent did get 100% more time.

[00:44:24] Speaker 04:
We're well aware.

[00:44:25] Speaker 04:
I suspect when it hits zero, you're not going to stop talking.

[00:44:28] Speaker 00:
Not if you're still talking to me.

[00:44:31] Speaker 00:
On the bad behavior point, there is no finding in this record at any point in time by the district court, nor did any party ever ask the district court to find that anything that I was doing, any action I took, any objection I filed, any request for stay that I filed, any motion that I filed, any appeal that I filed was frivolous or improper or outside the bounds of my fiduciary duty to

[00:45:00] Speaker 00:
the NRS subclass.

[00:45:02] Speaker 00:
Now this whole business about there being no subclass, excuse me.

[00:45:05] Speaker 04:
Your duty to the NRS subclass, you're not seeking fees for what you did on behalf of the NRS subclass.

[00:45:14] Speaker 00:
No, but they're saying my prior fee can appropriately be cut in half because I behaved badly representing the NRS subclass.

[00:45:21] Speaker 04:
Well, you did oppose the settlement agreement.

[00:45:24] Speaker 04:
It may have been something you had to do, you thought, for the NRO subclass, but it's hard to say how it served the interest of the class that ultimately was trying to collect money.

[00:45:36] Speaker 00:
Well, actually, oddly enough, at law it did, because to pass constitutional muster, the decision to

[00:45:47] Speaker 00:
approve that settlement had to be made pursuant to the district court's fiduciary duty to all class members.

[00:45:55] Speaker 00:
Remember, there was a certified nationwide class at that point in time.

[00:46:00] Speaker 00:
And all of those class, the district court owed a fiduciary duty to all of those class members.

[00:46:04] Speaker 00:
So when it was looking at the settlement

[00:46:07] Speaker 00:
of some of the class members, that did not obviate its duty to the rest of the class.

[00:46:13] Speaker 00:
And to satisfy that duty, it actually recognized the interests of the NRS subclass, and it appointed counsel.

[00:46:22] Speaker 00:
There's an order appointed.

[00:46:24] Speaker 04:
Will you stop talking when a judge is trying to ask you a question?

[00:46:30] Speaker 04:
That seems to tiptoe away from the notion that you volunteered for that assignment.

[00:46:35] Speaker 04:
It's not like the judge said, well, somebody in this room is going to have to take on this.

[00:46:39] Speaker 04:
I'm going to appoint you.

[00:46:41] Speaker 04:
You moved and indeed gave up the client that you had in the class that was going to get money in order to represent this subclass, presumably thinking you could do even better on behalf of what the NRS subclass was doing.

[00:46:58] Speaker 04:
It didn't turn out that way.

[00:47:00] Speaker 04:
And you keep telling me about the judge has a fiduciary duty.

[00:47:04] Speaker 04:
I mean, the settlement that he approved was ultimately affirmed.

[00:47:08] Speaker 04:
It's not at issue anymore.

[00:47:10] Speaker 04:
So I have a hard time perceiving from what you're saying that Judge Tiger somehow would have violated a fiduciary duty if he didn't have somebody actively trying to get something for the NRS group that included trying to hold the settlement hostage.

[00:47:29] Speaker 04:
It doesn't really seem to add up to me that this is something you were forced to do with a gun to your head by Judge Tiger, so where am I wrong?

[00:47:40] Speaker 00:
I was actually not trying to hold the settlement hostage.

[00:47:43] Speaker 04:
Then why did you object to it?

[00:47:46] Speaker 00:
I objected to it for two reasons.

[00:47:49] Speaker 00:
One was that because of the district court's decision that

[00:47:54] Speaker 00:
for the first time in history, that the multi-district litigation statute divests transferee courts from the ability to have people intervene, class members intervene and become plaintiffs in cases that have been consolidated in an MDL.

[00:48:11] Speaker 00:
because that issue was up on appeal.

[00:48:14] Speaker 00:
And this settlement was going to do what it did do.

[00:48:18] Speaker 00:
It was going to dismiss, if I didn't have a plaintiff who could intervene, it was going to dismiss all of the claims brought on behalf of the NRS subclass.

[00:48:29] Speaker 00:
It was going to stop N-class action tolling.

[00:48:33] Speaker 00:
And it was going to mean that the subclass, as a subclass, could no longer aggregate its claims in a class action.

[00:48:41] Speaker 00:
And so I was trying to prevent that from happening before this court could review the district court's decision on intervention, which I believe with every fiber of my being was an error.

[00:48:57] Speaker 00:
As it turned out, that didn't happen.

[00:48:59] Speaker 00:
The appeal was mooted.

[00:49:00] Speaker 00:
The subclass was divested of its ability to bring a class action.

[00:49:06] Speaker 00:
No class member in the NRS subclass can file a class action under class action tolling.

[00:49:12] Speaker 00:
That is a real damage that I had a duty to try to prevent.

[00:49:17] Speaker 00:
That damage has been recognized in the death knell doctrine ever since Eisen versus Carlisle and Jacqueline when the Second Circuit said the denial of class certification is an appealable interlocutory because the denial of certification can be the death knell of the substantive causes of action being aggregated there.

[00:49:38] Speaker 00:
So I had that duty.

[00:49:40] Speaker 00:
Yes, I also objected

[00:49:42] Speaker 00:
that not being sent for a global settlement, when we came back down from the Ninth Circuit after the 2015 settlements were appealed, that not being sent out to mediate a global settlement, I objected, was not in the interests of all of the members of the nationwide class, that subclass by subclass settlements are not in the best interests of classes.

[00:50:07] Speaker 00:
I also believe that with every ounce of being.

[00:50:11] Speaker 00:
So I was doing something not to get more fees necessarily.

[00:50:17] Speaker 00:
Also, I might add that my client, who was a Californian, who therefore was in the damage subclasses, when the 2015 settlements came along and even when they came back down, waved any conflict for me to represent the NRS subclasses.

[00:50:37] Speaker 00:
The judge said no you can't represent that client and even if they even if he quaved the conflict and so I had to withdraw his counsel for my California client and there were co-counsel so he was not damaged by my withdrawal But there is you know that this whole thing about bad behavior there has been no adjudication of bad behavior and

[00:51:00] Speaker 00:
And in fact, the district court didn't actually say I behaved badly.

[00:51:03] Speaker 00:
He just said I delayed the settlement.

[00:51:05] Speaker 02:
I plead guilty.

[00:51:06] Speaker 02:
I'm the one who introduced the term bad behavior.

[00:51:08] Speaker 02:
There's no finding of bad behavior by the district judge.

[00:51:11] Speaker 02:
I totally agree with you on that point.

[00:51:13] Speaker 00:
I'd also like to say one thing about the questions about the settlement administrator's declaration in the record.

[00:51:20] Speaker 00:
Here's the chronology.

[00:51:22] Speaker 00:
In March of 2022, the district court, excuse me, March of 2022, lead counsel made a motion to allocate the fees.

[00:51:30] Speaker 00:
In which he asked the district court to cut my fee by 50% I oppose that motion.

[00:51:37] Speaker 00:
There were reply papers, the briefing for that motion did in fact wrap up in August was never hearing on the motion in June of 2022.

[00:51:46] Speaker 00:
The settlement administrator put in a declaration and I might add actually that lead counsel's declaration support of the motion to cut my fee has a paragraph in it in which he says that he is quote working on finalizing claims.

[00:52:03] Speaker 00:
That is a present participle.

[00:52:06] Speaker 00:
That means as he was writing that he was working on finalizing claims.

[00:52:10] Speaker 00:
i.e.

[00:52:11] Speaker 00:
claims were not finalized then, nor were they finalized years earlier when supposedly they could have been paid.

[00:52:17] Speaker 00:
But then the settlement administrator puts in a long declaration supporting that idea that claims were not finalized until May of 2022.

[00:52:26] Speaker 00:
That declaration is put in when the briefing is closed, but not before the order is entered.

[00:52:34] Speaker 00:
The order on fees is entered in September of 2022.

[00:52:38] Speaker 00:
So the district court had, as he was considering, it was considering whether there was a delay, had that evidentiary record in front of it, even though it didn't exist at the time of the original motion briefing.

[00:52:53] Speaker 00:
I don't know, do you have any more questions?

[00:53:01] Speaker 00:
Otherwise, I'll sit down.

[00:53:04] Speaker 04:
Apparently not.

[00:53:06] Speaker 04:
We thank you.

[00:53:07] Speaker 04:
We thank all counsel for the assistance you provided us in this recurring and complicated case.

[00:53:18] Speaker 04:
That concludes the argument, and we are adjourned.