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case number 25-5290.

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True to both Nakey versus Internal Revenue Service at-at, Bob Loughran, PC at-bounce.

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Mr. Bob Loughran, PC at-bounce.

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Mr. Bob Loughran, PC at-bounce.

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Mr. Bob Loughran, PC at-bounce.

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Mr. Bob Loughran, PC at-bounce.

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Mr. Bob Loughran, PC at-bounce.

[00:00:08] Speaker 00:
Mr. Bob Loughran, PC at-bounce.

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Mr. Bob Loughran, PC at-bounce.

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Mr. Bob Loughran, PC at-bounce.

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Mr. Bob Loughran, PC at-bounce.

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Mr. Bob Loughran, PC at-bounce.

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Mr. Bob Loughran, PC at-bounce.

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Mr. Bob Loughran, PC at-bounce.

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Mr. Bob Loughran, PC at-bounce.

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Mr. Bob Loughran, PC at-bounce.

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Mr. Bob Loughran, PC at

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I'm James Vaughn Jr., attorney for the BOP law firm.

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This is a relatively, in my opinion, straightforward case regarding the validity of an attorney's lien under Indiana law.

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BOP law firms' lien is valid because one, the client threw the vote, and the former attorneys failed to even contest the validity of the lien.

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even though given numerous opportunities to do so, and in fact expressly conceded this.

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Second, the court below erroneously considered this issue, though it was never raised.

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Third, Indiana law is clear that there is a

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equitable lien in a fund received by the client through the efforts of the attorney.

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And finally, the record reveals that the funds here were secured by the efforts of the BOP law firms.

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So first, to the vote and... Can I ask a special question?

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Of course.

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If you're right, all right, that there was an error of law.

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and the case goes back to the district court, then what is your position?

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On what, Your Honor?

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My position on?

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You're seeking attorney's fees, right?

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Yes.

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You want to be paid.

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Yes.

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And that's why you want to leave.

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So what do you do with the lien?

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What happens?

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Oh, I'm sorry, Your Honor.

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There's a fund that the... Is there a fight over priority?

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Yes.

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Is there a fight over the client agreement?

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Client's grievance?

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The client's agreement.

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No, not that I know of.

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The client has turned over any right the client has.

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They have assigned those to us.

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what I'm calling the Equal Access to Justice Fund.

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Yes, that is the fund.

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And yes, priority is an issue to be resolved by the court.

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So suppose the district court rules that the former attorney's ring has priority over yours.

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Then what?

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They would be fully paid, whatever amount the court finds they are owed.

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But we just... Suppose hypothetically, because I don't know the amount of that being.

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Suppose it's the whole $700,000.

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It's over $600,000 they're claiming.

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The fund has almost $800,000.

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So there would be a residual which we would be entitled to either because our lien is secondary or because of the assignment.

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So I don't think there's any contest of we would be entitled to the remainder.

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I'm just trying to think of how this court's opinion can bring this matter to a close.

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And that's why I'm trying to understand what your position is, because I found the brief not helpful.

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All right?

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I understand you think there's an error of law.

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All right?

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And I thought, then what happens?

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So you are saying, and I think you say this in your brief, that you agree the former attorney's lead comes first.

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I do not agree that they confer.

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That's what I thought.

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All right.

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So here's my hypothetical.

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There's $700,000 in the Equal Access to Justice Fund.

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The prior attorneys take $700,000.

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Then what?

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If the fund is exhausted, then we receive nothing.

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The fund won't be exhausted based upon because the issues you're referring to were pending before the court for decision, i.e.

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the priority, who has priority, and how much the lien was to be valued at.

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Those were both pending.

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The judge had asked us to brief those questions specifically.

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He did not ask us to brief the validity of the lien.

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It was never briefed and in fact conceded repeatedly.

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Well, they conceded it insofar as the BOP law firm claimed 150,000 and change, but they did not ever concede that the lien allowed you to claim hourly rates under the

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under the truth vote agreement beyond that.

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So it's just not fair on the record which I've read to say that they conceded that the attorney lien would entitle you to the full amount of

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what you claim under your retainer.

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I didn't say that.

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What I said was that there's two elements to what you're saying and these were conflated throughout the litigation.

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One element is did we have a valid lien?

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The second issue was how much is that lien?

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How do you value it?

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And then, of course, the subsidiary question is, who has priority?

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All right?

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So they don't, as I understand it, and they can speak for themselves, the former attorneys don't, as you say, they don't dispute that there was a valid lien, but they understand there to be a valid lien for the amount that the BOP law firm submitted for each of fees.

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150,000 odd.

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So they're not disputing that.

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Even now, they're not disputing that.

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They're not claiming more than what they submitted that yielded the $638,500.

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So I think the parties agree there was a valid lien at least up to

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BLFs claimed each amount.

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But those two are separate issues.

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No, I understand.

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I understand.

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You did a very clear job of explaining that in the sense that one, is there a valid lien, and then two, what does that get you?

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And you say that secures the full amount of your retainer at your hourly rate, not at the $150 an hour rate.

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That's correct.

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We're arguing over the amount.

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That's your position.

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The basis for the lien is that it results that the attorney's effort secures the fund.

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Your position, I take it, is that your effort secured the fund because you were the signatory on the IJA petition.

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Is that right?

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It's a little more difficult than just signing your name, your honor, to get an award under the Equal Access to Justice Act.

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So your position about whether the Bob Law Firm's effort secured the fund, that's what I'm asking.

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What is your position on that?

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Exactly.

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It was the efforts of the Bob Law Firm.

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Can you explain that?

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Of course.

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It starts with the consent decree.

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All the efforts by the former attorneys created no benefit to the client, no ruling by any court that provided them substantive relief.

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The only one they won was in the Court of Appeals on a mootness question.

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Was the case moot?

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And the DC Circuit said, no, it's not moot.

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And so it went back.

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When we got into the case, in other words, all our efforts were futile.

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It accomplished nothing.

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But when we got into... You see, that's what I'm trying to understand about how you want us to look at this case, all right?

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Because you are making that type of argument, which means we go back to square one.

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And that's what your brief said to me.

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because you think you're entitled to more than 150,000, even though that's the cap under the EAJA statute.

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So there'll be an argument about that.

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There'll be an argument about priority.

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There'll be an argument about attorney's fees, all right?

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And what else is there gonna be an argument about?

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That's what I know about.

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Because your argument, I thought, was not the response you just gave to Judge Piller.

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But I thought you had agreed that that fund should be a portion

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Oh, that was a compromise in mediation, where we, and we mentioned that in the footnote, that it would, that would net about 400,000 each, each party, and we offered that as a compromise in mediation.

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But what is being contested is whether we are entitled to the $505,000 we have demonstrated through our billing that were the hours we spent and then at the hourly rate agreed to, right?

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And where they want that to be valued not based upon the agreement, but based upon how

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Equal access to Justice Act funds are determined.

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That's apples and oranges big time, OK?

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Well, that's back to square one, OK?

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That's what I'm trying to get at.

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Yeah, that'll be an issue.

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There are some issues that the district court has decided.

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And when I read the district court's opinion, I read the district court to say, one, there was no, he certainly cited the Coons case and the two factors.

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All right.

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And he said, one, there was no agreement.

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And then he has some other language that's saying, nor.

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All right.

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So you read that as he's still on the agreement.

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Yes.

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But he says, you have to look to the client for anything in excess of

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what you're seeking.

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Well, if he's right.

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But what I'm saying, so then I read, well, you went to the client and the client turned over, assigned to you any funds the client might be entitled to from the EAJA money.

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So when I read that, I thought, where is the case or controversy in this case?

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All right, IJA has a cap.

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They're offering you the cap.

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They're willing to take whatever is left.

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And so you get your money under the IJA cap and they get their money.

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But then when I read your brief, I understood, no, you really want to go back to square one on some of these issues.

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So the compromise that they're offering now is we're not even going to fight anymore about your entitlement to the 150.

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But you're saying you're owed much more.

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Because our lien is based upon the agreement.

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That's why the district court said look to the client.

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And so you went to the client, you got the assignment.

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But we get a lien under Indiana law for funds that have been secured by the client by our efforts.

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And to finish the answer to Judge Pillard's question, it began with getting a consent decree.

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that we negotiated with the IRS that gave our client 100% of what our client wanted, plus the explicit permission, if you will, by the government that we can pursue attorney's fees.

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We then pursue attorney's fees under the Equal Access Justice Act.

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And we are able to convince the court two very difficult things.

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First, that the IRS's position was not substantially justified.

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That gives us the statutory rate of $140 to be computed on how to compute the fund that is created.

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And then we can convince the court, which is mind-bogglingly rare, that the government's position was in bad faith, which gives us market rates.

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And all of this is simply, how do you compute the funds that are owed as reasonable attorney fees under the ELG?

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And then there's a fund.

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Now, you're arguing now that

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Your effort secured the EAJA award.

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And you're arguing that that is enough because unlike what the district court held, you read Indiana law to require one or the other ground, not both.

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I don't see.

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Is that right?

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Yes, I don't see how you can read Coons when they say it's one or the other explicitly.

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You don't need to, and you're not relying on the notion that you had any mutual agreement with True the Vote that your fees would be paid out of the EJA award.

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That's correct.

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You don't need to rely on that.

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That's not what you're relying on.

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And that's not what we're relying upon.

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We're relying upon the agreement that establishes the attorney-client relationship and allowed us to do all this very beneficial work for the, and the figure, you know, and how much.

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And you're not relying, you're not contesting that abuse of discretion is the standard for review.

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Yes, I'm not contesting that.

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You in what to what extent is you make an argument that is inherent authority that that's is that different in your mind from equitable authority or it's it's more or less.

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It's broader.

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It's broader.

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And you know, what is critical is.

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What is the law on equitable liens?

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The law in Indiana is without question that either you have an agreement with the client that you're going to be paid out of the fund, or there's no agreement and you have a fund that was created by your efforts.

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Either one.

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But the lower court conflated those and said you need an agreement, which is DC law, not Indiana.

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If there's a remand, the judge exercises his equitable discretion.

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Is it your position that, it's clearly your position that it need not attract the allocation under EGIA.

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In other words, one way to look at the extent to which the award was a result of the attorney's effort is to say, well, that's

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very similar to the IJA inquiry itself, that some of the effort, no, I know you don't agree with that, but if the district court did think that, why would that be an abuse of discretion?

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Because it's wrong as a matter of law, and those are de novo.

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I mean, there's a mixture here, all right?

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Some of these considerations like what's the law and how equitable liens arise, that's a question of law under Indiana law.

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And the Indiana Supreme Court in the Coons case has clearly established that.

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I'm not following.

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If the question for the district court is

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whether the award was the result of the efforts, was secured by the efforts of an attorney, one or more attorneys.

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And let's say the district court thought, well, this award was secured by the effort of all of the attorneys involved.

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You think that right there, that's abuse of discretion.

[00:17:50] Speaker 05:
No, I think that would be an exercise of the equitable powers of the court in applying the correct law.

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However, the correct law is that you don't have to be the exclusive generator of the fund.

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Okay.

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And of course, I think it's quite clear in the facts of this case that we were the exclusive genera of the fund.

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We won the case.

[00:18:18] Speaker 01:
Well, let's say, I've heard you say that, and I understand that that's your position, but I'm exploring your reaction to positions that aren't your ideal advocated position.

[00:18:29] Speaker 01:
So let's say a district judge says,

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that I think that there was much of the house built and then maybe you put the roof on it, nobody could live in it until you did that, but the house was also built by the contributions of others and exercised equitable discretion under the Indiana standard of attorney effort that secured the award.

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What is your argument

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that if the district court said, I'm just going to look to EJA to determine which portion of the award was secured by which of the lawyers, your reaction to that, if that comes up again or in arguing to the district court, is that would be an abuse of discretion.

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Why?

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I would argue that it's abuse of discretion because, well, because of the computations under the Equal Access to Justice Act.

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is completely inapplicable because the lien is governed by the retainer agreement, not the Equal Access to Justice Act.

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And it specifies in the agreement how the hourly rates that are going to be applied to the work that we do.

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Is the attorney agreement

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Relevant, we're not talking about the mutual understanding that the retainer would be compensated out of the EJ award.

[00:20:06] Speaker 01:
We're talking about whether the BOP law firm's effort secured the award.

[00:20:12] Speaker 01:
You don't need an agreement for that, do you?

[00:20:15] Speaker 05:
Well, you have to be an attorney to the client.

[00:20:18] Speaker 05:
And under my ethical rules in Indiana, you got to have an agreement.

[00:20:23] Speaker 05:
It's awful fast.

[00:20:26] Speaker 01:
Let's say the agreement said, we'll represent you and we'll expect to be paid.

[00:20:31] Speaker 01:
What about Indiana law under this prong that talks about whether the attorney's effort secures the award, renders

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all of the lawyers whose efforts secured the award, like why would one lawyer get the hourly rate that they put in their contract and other lawyers not?

[00:20:59] Speaker 05:
Because once you check the box that you have a lien under, you secured the funds,

[00:21:08] Speaker 05:
and you don't have to be the exclusive one to secure the funds, that you secured the funds, then the valuing, the lien is based on the retainer agreement.

[00:21:19] Speaker 05:
How many hours did you spend?

[00:21:20] Speaker 05:
What was the hourly rate?

[00:21:23] Speaker 05:
That's why.

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Under Equal Access to Justice Act, you have to show not substantially justified or bad faith here.

[00:21:32] Speaker 05:
And then you have a rate, $140 as a standard rate.

[00:21:36] Speaker 05:
You get market rates.

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And then in this case, the court cabined the bad faith to only a portion of what the lawyers did.

[00:21:49] Speaker 05:
And that's the reason mine was valued at 140, theirs were valued at market rates.

[00:21:55] Speaker 01:
What's your Indiana law, I assume it would be Indiana law site for the notion that the value that you get from a lien that rests on the efforts of the attorney, the value of that lien is determined by the retainer.

[00:22:17] Speaker 01:
What's your best site for that?

[00:22:20] Speaker 05:
I don't know a site for that that's never been raised.

[00:22:23] Speaker 05:
So I haven't had the occasion to hunt for one.

[00:22:28] Speaker 02:
So that's why the district court looked to what the intermediate Indiana courts had done.

[00:22:36] Speaker 02:
And basically they said, we have to look at these prongs together.

[00:22:44] Speaker 05:
The intermediate.

[00:22:45] Speaker 02:
And I know you disagree with that.

[00:22:47] Speaker 02:
and read Coons, and there are two alternatives, but to respond to Judge Pillard's question, which I thought the district court was trying to figure out, well, what do I do?

[00:23:02] Speaker 02:
So he looks to the intermediate court of appeals to figure out and looks not only to the Indiana courts, but courts around the country and says, this is how I have to look at this, all right?

[00:23:15] Speaker 02:
And I know you disagree with that,

[00:23:18] Speaker 02:
but trying to figure out what you're seeking other than the $505,000 that you say, as I understand it, you're entitled to.

[00:23:33] Speaker 02:
And I'm not questioning that under your agreement, but I'm just saying that's my understanding of what you think you're entitled to.

[00:23:40] Speaker 02:
Let's just make that a hypothetical.

[00:23:43] Speaker 02:
If you don't get that,

[00:23:46] Speaker 02:
That's because you think the district court has abused its discretion by virtue of an error of law.

[00:23:57] Speaker 05:
Well, the error of law is conflating the two circumstances and requiring an agreement no matter what.

[00:24:04] Speaker 05:
And that's clearly not the law in Indiana.

[00:24:06] Speaker 05:
That would be de novo, I would think.

[00:24:08] Speaker 02:
Well, you heard Judge Pillard's question.

[00:24:10] Speaker 02:
She's trying to get

[00:24:12] Speaker 02:
some understanding of what your position is.

[00:24:17] Speaker 02:
And my understanding that that's what the district court was trying to understand too.

[00:24:23] Speaker 02:
Well, and maybe he made an error of law, but I thought, what do you do?

[00:24:30] Speaker 02:
Basically, the way I read this was that the former attorneys had said, look, we've been struggling over this for, what, seven years.

[00:24:39] Speaker 02:
Let's end this.

[00:24:41] Speaker 02:
You get $150,000.

[00:24:43] Speaker 02:
We get our fees, right?

[00:24:45] Speaker 02:
You say no.

[00:24:47] Speaker 02:
You're the creator of the fund.

[00:24:50] Speaker 02:
It's only your efforts that created that fund.

[00:24:54] Speaker 02:
So we're back to square one, because that is not the way I read the district court's understanding of what happened in this case.

[00:25:02] Speaker 02:
Well, let me address... All we're trying to figure out is what can we say based on the issues that are before us

[00:25:14] Speaker 02:
that tries to clarify some of this, and maybe we can't, and this goes on for another seven years.

[00:25:21] Speaker 02:
But that really is, and not questioning any representation you make as to what you're owed.

[00:25:29] Speaker 02:
But this could go on forever if everything has to go back to square one in terms of who actually made an effort to get the government to enter this consent agreement and all of that long before you came into the case.

[00:25:46] Speaker 02:
That's all I'm getting at.

[00:25:47] Speaker 05:
There's no dispute that we got this settlement, the consent decree.

[00:25:52] Speaker 05:
The formalities were gone, replaced by us.

[00:25:56] Speaker 05:
Several months later, we were able to negotiate and get 100% of what the client wanted.

[00:26:01] Speaker 05:
And then we were the ones that pursued the fund.

[00:26:04] Speaker 05:
But I wonder.

[00:26:06] Speaker 06:
I mean, I don't know if that's undisputed.

[00:26:08] Speaker 06:
Imagine I'm trying to open a can, twist it off, and I can't get it in the hand of somebody else.

[00:26:15] Speaker 06:
And they'll go, pop.

[00:26:15] Speaker 06:
comes right off, I say, I loosened it for you.

[00:26:20] Speaker 05:
They haven't argued that they were negotiating some consent decree.

[00:26:25] Speaker 05:
And in fact, I know that's not the case.

[00:26:27] Speaker 06:
Even if that's not the case, isn't it conceivable that it was easier for you to get the consent decree because they had loosened the jar?

[00:26:38] Speaker 05:
There is nothing, no objective evidence that any jar was loosened by them.

[00:26:43] Speaker 05:
everything that they tried failed except for reversing mutants.

[00:26:47] Speaker 05:
Significant, I agree, but that's it.

[00:26:51] Speaker 05:
No decisions, no concessions, no anything that benefited the client.

[00:26:57] Speaker 05:
We were at square one when I got in the game.

[00:26:59] Speaker 01:
If they had no beneficial work, then did the court err in including their lodestar calculation in the Egypt fee award?

[00:27:12] Speaker 05:
Their part of the calculation on their fees was at market rates.

[00:27:26] Speaker 01:
I understand that because the IRS was acting in bad faith.

[00:27:33] Speaker 05:
Yes, and the way those hours are valued is not at the statutory one.

[00:27:39] Speaker 01:
I understand that.

[00:27:40] Speaker 01:
I'm sorry.

[00:27:41] Speaker 01:
So my question for you was there was an award of fees, a calculation of fees, and the bulk of the fee that was awarded was based on hours contributed and some of which were

[00:28:01] Speaker 01:
valued more highly, as you just said, because of IRS-bent faith.

[00:28:05] Speaker 01:
But ours contributed by your firm, by the Foley firm, by

[00:28:17] Speaker 01:
the Center for Constitutional Jurisprudence and by the Public Interest Law Foundation.

[00:28:22] Speaker 01:
Your position to us today is that nobody but your firm actually secured the award.

[00:28:31] Speaker 01:
And my question is, if they didn't contribute to the success of the litigation, is it ever for the district court to have counted any of their work

[00:28:44] Speaker 01:
in the size of the pot?

[00:28:49] Speaker 05:
It was not there.

[00:28:50] Speaker 05:
Why not?

[00:28:52] Speaker 05:
Because the way equal access to justice calculations go with respect to attorney's fees is in this case, in this case, it was

[00:29:09] Speaker 05:
from the very beginning, right?

[00:29:11] Speaker 05:
Now, occasionally you have instances where a motion is filed, okay?

[00:29:17] Speaker 05:
And somebody says, well, that's not substantially justified, you know, or in bad faith.

[00:29:24] Speaker 01:
Then you just- It wasn't necessary.

[00:29:26] Speaker 05:
Then you get the award of pleadings that related to that.

[00:29:32] Speaker 01:
Right.

[00:29:32] Speaker 05:
This one was from the very beginning to the very end.

[00:29:35] Speaker 01:
The things that contributed to the results in the case.

[00:29:38] Speaker 05:
Well, it depends on what you think of as results.

[00:29:42] Speaker 05:
It is true that you calculate the fund based upon the attorney's fees, the attorney time, either times 140 or market.

[00:29:58] Speaker 05:
to to calculate the fund that is true that's what but that does but a lien by an attorney is calculated based if there is an agreement and it specifies hourly rates it's based upon the time and hourly rates in the agreement so these are just apples and oranges that don't have anything to do with each other

[00:30:22] Speaker 05:
And so now, by the way, the Court of Appeals, Judge Rogers, the Court of Appeals case is Hamilton.

[00:30:31] Speaker 02:
Yeah, it's one of them.

[00:30:32] Speaker 05:
Hamilton, in Hamilton, the validity of the lien was conceded.

[00:30:38] Speaker 05:
It wasn't litigated.

[00:30:40] Speaker 05:
The Court of Appeals didn't say, oh, the law is all this.

[00:30:46] Speaker 05:
What is it?

[00:30:46] Speaker 02:
Questioning that.

[00:30:47] Speaker 05:
OK, what they said.

[00:30:48] Speaker 02:
What I'm trying to say is that to answer the question that Judge Pillard put to you, a couple of questions back,

[00:30:57] Speaker 02:
I thought the district court was trying to figure out, how do I answer this?

[00:31:03] Speaker 02:
And so he looked to these intermediate court of appeals decisions to try to figure out how the Indiana courts had looked at this.

[00:31:12] Speaker 02:
And indeed, how the Second Circuit, how the DC Court of Appeals, and the Ninth Circuit.

[00:31:17] Speaker 02:
I mean, that's all I thought he was doing.

[00:31:20] Speaker 02:
I'm not arguing the facts of the intermediate appellate court cases with him.

[00:31:25] Speaker 05:
Well, I'm not arguing the facts.

[00:31:27] Speaker 05:
I'm just arguing that what they said was, we need give no time to a discussion of the validity or character of the claim of the lien because the appellant admitted that the appellee's attorneys has a lien on the judgment from which the appeal is taken.

[00:31:45] Speaker 05:
So that Hamilton was completely meaningless to the question.

[00:31:51] Speaker 02:
We're two trains passing in the night.

[00:31:54] Speaker 02:
Okay.

[00:31:54] Speaker 02:
I'm not disputing what those cases are about.

[00:31:57] Speaker 02:
I'm trying to understand how the district court tried to answer the question that Judge Pillard raised.

[00:32:07] Speaker 02:
All right.

[00:32:08] Speaker 02:
That's all.

[00:32:10] Speaker 05:
The court never tried to answer the question, was there a fund received by the client that was a result of the efforts of the attorney?

[00:32:21] Speaker 05:
They never sought to decide that question.

[00:32:25] Speaker 05:
His only consideration was, was there an agreement?

[00:32:29] Speaker 05:
Well, that's wrong under Indiana law.

[00:32:31] Speaker 01:
So do you dispute that?

[00:32:34] Speaker 01:
And I know you dispute the premise, but accept my premise for purpose of the question.

[00:32:38] Speaker 01:
If the former attorney's lien had priority, you don't agree with that, but if it did, assignment from True the Vote to you of its EAJA award would be subject to that lien.

[00:32:55] Speaker 04:
True.

[00:32:57] Speaker 01:
Okay.

[00:32:59] Speaker 01:
I think you've satisfied me.

[00:33:00] Speaker 01:
You've answered my questions.

[00:33:02] Speaker 01:
On remand, just to recap, what do you think the district court still needs to decide?

[00:33:10] Speaker 05:
If we prevailed here, you would have a one sentence which says that the Bopla firm had a valid lien, and you'd remand for further consideration.

[00:33:20] Speaker 05:
Further consideration would involve things that were pending at the time the court issues its memorandum of opinion, which were— How could we decide that in light of some of the issues that Judge Pillard's question raised?

[00:33:34] Speaker 02:
All you have argued to us, as I understand it, is that there was an error of law because the district court only looked to one of the factors that the Kuhn case mentioned.

[00:33:46] Speaker 02:
And the district court needed to look to the second alternative, independent factor.

[00:33:54] Speaker 02:
And so if we agreed with you, we would just send that back.

[00:33:57] Speaker 02:
Yeah, and they would do that.

[00:34:00] Speaker 02:
And the only thing I've been trying to figure out about this case is, is there any way to bring it to a close?

[00:34:07] Speaker 02:
No.

[00:34:07] Speaker 02:
And apparently, the answer is no.

[00:34:09] Speaker 05:
No.

[00:34:10] Speaker 05:
No.

[00:34:11] Speaker 05:
And I'm not happy about that.

[00:34:13] Speaker 05:
I mean, everything that was needed to finish the case was before the court.

[00:34:18] Speaker 05:
We had done supplemental briefing.

[00:34:20] Speaker 05:
And out of clear blue sky, something that the court has said in its order, former attorneys do not appear to challenge the validity of BOP law firm's charging lien, but instead insists that their charging lien has priority over the BOP law firm charging lien.

[00:34:40] Speaker 05:
That's on page 11.

[00:34:41] Speaker 05:
That's the district courts.

[00:34:43] Speaker 05:
opinion about what happened here.

[00:34:46] Speaker 05:
And so out of the clear blue sky, an issue that was never raised actually conceded, never briefed, instead of deciding the priority, the amount.

[00:35:01] Speaker 06:
If this were remanded, what would the district court need to decide?

[00:35:06] Speaker 06:
What issues would be remaining?

[00:35:08] Speaker 06:
And you'd said, we would issue one sentence remand.

[00:35:13] Speaker 06:
And then what would the district court, what would be left for the district court to do?

[00:35:18] Speaker 06:
What would your arguments be?

[00:35:19] Speaker 06:
You would be saying to the district court, we want some money because, and what comes after the because?

[00:35:25] Speaker 05:
The priority of which lien, the former attorney's lien or our lien, which comes first?

[00:35:35] Speaker 05:
and then how much are we entitled to under that lane.

[00:35:41] Speaker 06:
Those are the 2 issues and then we're going to lean at least chronologically in first is that which at least chronologically came first to former attorneys lean in 2013.

[00:35:54] Speaker 05:
Yes, but there was a subsequent one that the court ruled was superseded and avoided the first one.

[00:36:01] Speaker 06:
So the district court would have to figure out which of the former attorney's two possible liens controls, and then figure out whether that one has priority to your lien.

[00:36:14] Speaker 06:
And then once that decision is made, would have to figure out the proper allocation of the money.

[00:36:20] Speaker 06:
OK.

[00:36:20] Speaker 06:
It's a totally separate question, a largely separate question.

[00:36:25] Speaker 06:
Boones is more than 100 years old.

[00:36:29] Speaker 06:
Their best case is more than 100 years old.

[00:36:35] Speaker 06:
We are not the Indiana Supreme Court.

[00:36:37] Speaker 06:
I know the district court asked both parties whether this should be certified, and no one wanted to.

[00:36:44] Speaker 06:
But have you had any occasion to reconsider that?

[00:36:52] Speaker 05:
I don't think it's accurate to say we didn't want that to happen, because that would have been fine with us.

[00:36:58] Speaker 05:
However, Indiana rules provide that the question that you're asking the court to decide has to complete the litigation, not be some intermediate step in the litigate.

[00:37:16] Speaker 05:
And we're involved in an intermediate step right now.

[00:37:20] Speaker 05:
as you've just had me explain.

[00:37:23] Speaker 06:
I think that might be right.

[00:37:25] Speaker 06:
That might be what Indiana's rules mean by just positive.

[00:37:28] Speaker 06:
Yes.

[00:37:29] Speaker 06:
You know, if we were to affirm based on the district court's understanding of Indiana law, that would complete this case.

[00:37:41] Speaker 02:
If you win.

[00:37:42] Speaker 06:
No, no, if he loses.

[00:37:43] Speaker 02:
No, that's my point.

[00:37:46] Speaker 05:
You know what?

[00:37:48] Speaker 05:
That's a really, I hadn't thought of that angle.

[00:37:52] Speaker 06:
You haven't persuaded Judge Rochester's death.

[00:37:55] Speaker 05:
Well, that's fine.

[00:37:57] Speaker 02:
Going back to who actually established the fund.

[00:38:05] Speaker 05:
Judge Walker, that's really a good argument that I hadn't considered, is that there's one way of this being resolved that would complete the litigation on the lien.

[00:38:16] Speaker 05:
And that would be to affirm.

[00:38:18] Speaker 05:
So I'd be perfectly happy if you'd certified Indiana to find out whether it's viable.

[00:38:23] Speaker 05:
I'd be very happy for that to happen.

[00:38:27] Speaker 05:
And I have been ordered in litigation before to request that of state Supreme Court and familiar with the process.

[00:38:38] Speaker 05:
And I'd be all in for that.

[00:38:42] Speaker 02:
Well, not every state has that same rule.

[00:38:45] Speaker 02:
Sure.

[00:38:46] Speaker 02:
It could be interim.

[00:38:49] Speaker 02:
But you're saying, no, Indiana, it's a little unbelievable.

[00:38:52] Speaker 05:
Well, the way I interpret a dispositive, what I was thinking about, winning the appeal.

[00:38:59] Speaker 01:
So let's hear from the former attorneys.

[00:39:03] Speaker 01:
Of course.

[00:39:04] Speaker 01:
Thank you, Mr. Bowie.

[00:39:05] Speaker 01:
Thank you.

[00:39:10] Speaker 07:
May it please the court.

[00:39:12] Speaker 07:
Michael J. Lockerbie with the law firm of Fulland Lardner and also present until a minute ago at council table is Kaylin Phillips from the Public Interest Legal Foundation to which I'll refer as PILF.

[00:39:27] Speaker 07:
Before addressing the issues I had planned to address, Judge Rogers raised an issue that I hadn't contemplated, but really is a threshold issue that I do believe needs to be addressed first.

[00:39:39] Speaker 07:
And that's case or controversy, and whether there is a case or controversy.

[00:39:44] Speaker 07:
And as I have thought about it the last 28 minutes or so, it occurred to me that there really isn't with respect to two issues.

[00:39:56] Speaker 07:
One is the issue whether the BOP law firm BLF has a lien under its agreement with the client through the vote.

[00:40:08] Speaker 07:
And it doesn't because the Bob Law Firm saw two bites at the apple here.

[00:40:13] Speaker 07:
It filed suit in federal court in Indiana first to recover the same $505,000 that it now says is the subject of its later said was the subject of his charging lien in the district court here in Washington.

[00:40:33] Speaker 07:
And I'm not going to do a dramatic reading of truth of those pleading, but we certainly quoted in our brief.

[00:40:42] Speaker 07:
And there's some pretty harsh words about the scope and nature of the representation.

[00:40:49] Speaker 07:
And rather than see that case through, the Bob Law firm dismissed those claims with prejudice.

[00:40:57] Speaker 07:
And so it really is race judicata that there is no claim.

[00:41:03] Speaker 06:
What's your best precedent for the proposition that a voluntary dismissal with prejudice has race judicata effect?

[00:41:12] Speaker 07:
Uh, standing here today, I don't have one.

[00:41:14] Speaker 07:
Your honor was not planning to make that argument.

[00:41:18] Speaker 07:
But if it's a dismissal with prejudice, it almost seems self evident because once the claim has been dismissed with prejudice, it can't be reasserted either in that court or anywhere else.

[00:41:32] Speaker 07:
Um, the other issue about which there's no case or controversy is that the former attorney's charging lien

[00:41:41] Speaker 07:
exists and it has priority.

[00:41:43] Speaker 07:
And that was a finding by the district court that BLF did not appeal.

[00:41:49] Speaker 01:
And so the district court find that your lien had priority.

[00:41:53] Speaker 07:
It did.

[00:41:54] Speaker 01:
Where?

[00:41:56] Speaker 02:
I thought it was sort of a conditional sentence.

[00:42:00] Speaker 02:
That priority remains to be decided.

[00:42:03] Speaker 02:
That's it.

[00:42:04] Speaker 02:
Based on the priority.

[00:42:06] Speaker 02:
I thought priority is still an open issue.

[00:42:09] Speaker 07:
If I misspoke, I apologize.

[00:42:12] Speaker 07:
I can certainly look for that.

[00:42:43] Speaker 07:
I will look for that in in a minute.

[00:42:45] Speaker 07:
I believe that to be the case, but.

[00:42:49] Speaker 07:
See if I can find it now actually.

[00:42:54] Speaker 01:
Is it in your view in this reports or was it previous proceedings in the hearing?

[00:43:03] Speaker 02:
You don't see.

[00:43:19] Speaker 07:
Certainly the finding at ECF number 245 was the former attorneys have a valid charging lien.

[00:43:30] Speaker 07:
I don't know that there's an, I'd have to go back to that.

[00:43:33] Speaker 07:
I don't know there's an express holding that has its priority, although it arose under a prior

[00:43:39] Speaker 07:
agreement and it also arose under the equal.

[00:43:43] Speaker 06:
What do you think about certifying this question about Indiana law to the Indiana Supreme Court?

[00:43:54] Speaker 07:
I don't understand what issue

[00:43:57] Speaker 07:
needs to be resolved by the Indiana Supreme Court because whether the test is either or or both, either that the BOP law firm secured the award or that it was required to or that it was entitled to the funds under the fee agreement, it can't recover either way.

[00:44:22] Speaker 06:
I thought that if it's either or, then they have

[00:44:26] Speaker 06:
a valid lien, that would then raise the question about the relationship between its lien and your lien.

[00:44:36] Speaker 06:
And I thought that you had agreed that in that situation, that the BOP law firm would get some money.

[00:44:48] Speaker 06:
If that's more than what they're getting now, which is no money.

[00:44:51] Speaker 06:
Which is nothing.

[00:44:53] Speaker 07:
Well, that's correct.

[00:44:54] Speaker 01:
But the source of that lien would... I didn't think that just because he invalidated their lien, does that mean they get no money?

[00:45:04] Speaker 07:
Well, we're not arguing that.

[00:45:07] Speaker 07:
I think a case can be made that...

[00:45:13] Speaker 07:
They don't get it directly from the court.

[00:45:15] Speaker 07:
But the result would be the same in that there's $150,000 excess.

[00:45:22] Speaker 07:
And so the $150,000 would be payable to True the Vote.

[00:45:27] Speaker 07:
And under the assignment agreement that the Bob Law firm apparently has with True the Vote,

[00:45:34] Speaker 07:
true the vote would be required to pay that $150,000 over to the BOP law firm.

[00:45:40] Speaker 07:
And we're not contesting that.

[00:45:42] Speaker 06:
And if they didn't, that would be a new case.

[00:45:45] Speaker 07:
Let's hope not.

[00:45:48] Speaker 06:
Let's hope it wouldn't be a new case.

[00:45:50] Speaker 07:
Well, a new piece of litigation, if that's what your honor was referring to.

[00:45:55] Speaker 07:
But that ought to be, the assignment appears to be fairly

[00:46:00] Speaker 07:
simple and straightforward.

[00:46:01] Speaker 07:
And so that if True the Vote received $150,000, which it can receive without reversal.

[00:46:10] Speaker 06:
You're pretty confident they're just going to write that check.

[00:46:13] Speaker 07:
I can't speak to that, but certainly.

[00:46:16] Speaker 06:
And I don't want to speculate whether they would or wouldn't.

[00:46:18] Speaker 06:
But my point is, if we just say affirmed, I think I forget the case number of this case.

[00:46:24] Speaker 06:
But I think whatever the case number for this district court case is, that is closed.

[00:46:30] Speaker 06:
And for the purposes of the Bob law firm, they have nothing left to do.

[00:46:35] Speaker 06:
They have nothing they can gain from

[00:46:37] Speaker 06:
that district court case, this district court case, and then if they don't get the check for $150,000, I guess they could sue in what would be a new case with a new case number.

[00:46:49] Speaker 07:
It would be, and that's a simple collection case.

[00:46:52] Speaker 07:
Because of their assignment.

[00:46:53] Speaker 07:
Because of the assignment.

[00:46:55] Speaker 07:
buy through the vote.

[00:46:57] Speaker 07:
But with respect to what happened in this court, the lower court, the findings, of course the district court found that of the $788,539.30, only $150,000 and some change was attributable to BLF.

[00:47:14] Speaker 07:
And the district court made those findings

[00:47:17] Speaker 07:
based on filings that the BLF itself submitted.

[00:47:21] Speaker 07:
And that's how the district court came up with these numbers.

[00:47:26] Speaker 07:
$348,979 to PILF, $264,686.57 to Foley.

[00:47:31] Speaker 07:
Before I knew of the assignment in terms of the chronology of this case,

[00:47:43] Speaker 02:
I thought the judge was just applying the Equal Access to Justice ceiling.

[00:47:48] Speaker 02:
I'm sorry, you thought the judge was... Applying the cap in the Equal Access to Justice Act.

[00:47:56] Speaker 02:
You're saying no.

[00:47:58] Speaker 07:
Well, no, the judge in calculating fees...

[00:48:03] Speaker 07:
as part of the EAGA award did apply a cap, but also applied the information about who did what when to come up with those numbers.

[00:48:19] Speaker 07:
And the record is clear that virtually all of those substantive work was done by the former attorneys dating back to 2013.

[00:48:28] Speaker 07:
through February 2017 when BLF entered its appearance.

[00:48:34] Speaker 07:
And we laid out in our brief why that's the case.

[00:48:38] Speaker 07:
ECF number one, factual development, preparing and filing the complaint, not responding to the motion to dismiss.

[00:48:45] Speaker 07:
That's ECF number 65 and 72.

[00:48:48] Speaker 07:
Obtaining reversal in this court

[00:48:52] Speaker 07:
of the district court's dismissal of the government defendants, which was key.

[00:48:58] Speaker 07:
That's a reported decision from 10 years ago, 2016, responding to the government's summary judgment motion, number 119, a successful motion for discovery under rule 5016 as ECF 138.

[00:49:13] Speaker 02:
Maybe you're telling us.

[00:49:15] Speaker 02:
telling me that the way I should read the record is that the district court, and this is all clear from record, asked the parties to make submissions.

[00:49:25] Speaker 02:
All right, he asked for three things.

[00:49:26] Speaker 02:
And one of them was the billing records.

[00:49:29] Speaker 02:
So the party submitted that.

[00:49:31] Speaker 02:
And you're saying that it was on the basis of that, of that information that the judge said, well, BOP law firm is entitled to.

[00:49:42] Speaker 02:
That's correct, Your Honor.

[00:49:45] Speaker 07:
And it was based on that.

[00:49:47] Speaker 07:
And those submissions to the court were signed by the Bob law firm.

[00:49:55] Speaker 07:
And there's also an issue, and it's not briefed, of judicial estoppel, frankly.

[00:50:00] Speaker 07:
They won on that motion.

[00:50:02] Speaker 07:
And now they're seeking a do-over.

[00:50:05] Speaker 07:
years after the fact.

[00:50:07] Speaker 07:
And the record showing that the former attorneys contributed quite a bit to the work that was the subject of the EAGA award is not only established in the declaration of Kaylin Phillips, this ECF number 180, 180-8 in paragraph four,

[00:50:31] Speaker 07:
Even in this court, the Bob Law firm's brief, and this is on page five, talks about extended discussions, review, input, and work of the former attorneys that went into the fee award.

[00:50:47] Speaker 07:
The bottom line is the district court did not air it by not allowing BLF to abuse the equitable remedy of a charging lien to take fees that had been earned by others for work done by others.

[00:51:02] Speaker 07:
And again, this was the award under the EAGA.

[00:51:05] Speaker 07:
It had nothing to do with the agreement.

[00:51:08] Speaker 02:
So moving forward on that argument, assuming that is a correct way to look at the record, then

[00:51:17] Speaker 02:
Even if, as the Bopp law firm argues, the district court err as a matter of law by not going to the second ground under the Coombs decision, it was harmless error because there's no prejudice in the sense that the district court made a finding of the amount to which the Bopp law firm was

[00:51:47] Speaker 02:
entitled based on the filings that were presented to the district court.

[00:51:55] Speaker 07:
That's correct, Your Honor.

[00:51:57] Speaker 07:
And if the BOP law firm wanted more, well, obviously it did and does, if it wanted more than the district court was willing to award, then it had a remedy.

[00:52:11] Speaker 07:
And that remedy was under his fee agreement, but I'm using the past tense had because it doesn't have that remedy anymore.

[00:52:19] Speaker 07:
It filed that claim and dismissed that claim with prejudice.

[00:52:24] Speaker 01:
So the result of the, with prejudice dismissal would be to be claimed, preclusion against any claim.

[00:52:37] Speaker 01:
based on the retainer agreement or any claim for fees whatsoever?

[00:52:43] Speaker 07:
Based on the retainer agreement.

[00:52:46] Speaker 01:
And so to the extent that the Bob Law firm's position before us is A, the district court was wrong, that you have to have both factors, one factor is enough.

[00:52:58] Speaker 01:
B, the factor we're relying on is that our efforts secured the award and

[00:53:06] Speaker 01:
C, we're entitled to at least the full amount we would be entitled to under our retainer agreement.

[00:53:15] Speaker 01:
It's only that third part that would be precluded.

[00:53:20] Speaker 01:
Correct.

[00:53:21] Speaker 01:
And so in your view, they would still be entitled to argue that they're, well, I guess there's two ways they would get to the same result.

[00:53:30] Speaker 01:
One, that if they have a lien that does not

[00:53:36] Speaker 01:
does or does not, I guess, have priority over yours.

[00:53:39] Speaker 01:
To the extent that their effort secured the award, they'd still be entitled to that on an equitable basis without the retainer.

[00:53:46] Speaker 07:
Under the Equal Access to Justice Act.

[00:53:50] Speaker 07:
And that amount is $150,000.

[00:53:51] Speaker 07:
Right.

[00:53:52] Speaker 01:
Or if they've settled their entire claim to fees

[00:53:59] Speaker 01:
But you're not arguing that.

[00:54:00] Speaker 01:
But if they had it to settle their entire company fees, they nonetheless would get the residual because nobody else is claiming it.

[00:54:07] Speaker 07:
If they hadn't settled their claim, they could seek more than 150,000.

[00:54:16] Speaker 01:
But they haven't.

[00:54:17] Speaker 07:
They've settled that claim.

[00:54:19] Speaker 01:
But you started by saying there's no case for controversy.

[00:54:22] Speaker 01:
But now I hear you saying there's a theory under which

[00:54:27] Speaker 01:
they can still seek fees, it's just bereft of their effort to inject their retainer into the size of the claim that they want.

[00:54:38] Speaker 07:
They're referred to inject the retainer, but also it's an unnecessary step because they already have an agreement

[00:54:48] Speaker 07:
from the litigation in Indiana that says that any amount awarded under the Equal Access to Justice Act is theirs and True the Vote has to pay it over to them.

[00:55:04] Speaker 07:
And so really what they're seeking to do is, although they appealed

[00:55:10] Speaker 07:
the district court's order on the charging lien, that doesn't really solve their problem.

[00:55:16] Speaker 07:
Because even if they have a charging lien, they would still have to go back and have a do-over of the entire

[00:55:25] Speaker 07:
EAGA fee award.

[00:55:28] Speaker 07:
And if let's say they had a valid charging lien, it couldn't have attached before they entered an appearance in February 2017.

[00:55:38] Speaker 07:
And so basically they would be seeking to go back before the date of that alleged lien and take hundreds of thousands of dollars for work done by the former attorneys.

[00:55:58] Speaker 01:
And you're not doing what the Bob Law Firm is doing and saying, well, yeah, we were undercompensated both because even the bad faith amount doesn't match our hourly rate.

[00:56:16] Speaker 01:
And even more so, the standard amount of $150 falls far short of our hourly rate.

[00:56:22] Speaker 01:
You're not saying, and therefore, if our lead has priority,

[00:56:27] Speaker 01:
We want all of it.

[00:56:29] Speaker 01:
And you're not doing that because you were under a, you were representing pro bono on the understanding that if there was fee shifting, you would get paid.

[00:56:38] Speaker 07:
Well, it was pro bono representation, but we submitted.

[00:56:41] Speaker 01:
That's what I'm saying.

[00:56:44] Speaker 01:
You would get paid.

[00:56:45] Speaker 07:
But if there were to be a do-over, there were a lot of fees that Foley and PILF, I can't speak for CJC, submitted.

[00:56:56] Speaker 07:
that were disallowed.

[00:56:57] Speaker 07:
And so if we really wanted to go back to square one and re-litigate that, then there certainly are issues that we could have raised, would raise.

[00:57:09] Speaker 01:
I guess I'm not entirely following the do-over, the numbers going into the IJA award.

[00:57:18] Speaker 01:
I mean, I was pressing Mr. Bopp on his notion that the award, his efforts secured the award because the IJA award itself suggests that multiple

[00:57:34] Speaker 01:
attorney's efforts secured it.

[00:57:36] Speaker 01:
But when you're talking about, I know this was an exchange that you were having with Judge Roach.

[00:57:40] Speaker 01:
I'm just not sure that I see anybody asking to resubmit the EJA application.

[00:57:48] Speaker 07:
No, we're not seeking that.

[00:57:49] Speaker 07:
Haven't sought that.

[00:57:50] Speaker 01:
But why are you talking about it?

[00:57:52] Speaker 07:
Well, the reason I'm talking about it.

[00:57:55] Speaker 01:
Yeah.

[00:57:56] Speaker 01:
Well, the amounts, the EJA award itself,

[00:58:01] Speaker 01:
suggests that the fund was secured by the efforts of many different lawyers.

[00:58:09] Speaker 07:
It says that, but then it also apportions that and is based on the work that the district court found each law firm had performed.

[00:58:21] Speaker 07:
And then there's certain aspects of that work

[00:58:26] Speaker 07:
that the former attorneys were compensated for at a higher rate, not necessarily what their standard rate would be, but certainly of a higher rate.

[00:58:39] Speaker 07:
And there's work that went to securing that award for which the former attorneys received no compensation, including

[00:58:48] Speaker 07:
coming up with these numbers and the justification for the award in the first place.

[00:58:53] Speaker 01:
So there was billing judgment, and then the district court ultimately reviewed and snipped and adjusted.

[00:59:02] Speaker 07:
And that happened to everybody.

[00:59:04] Speaker 07:
It wasn't just the Bob Lawson.

[00:59:06] Speaker 01:
No, that's typical.

[00:59:07] Speaker 01:
So that, we're all on the same page, but when you're suggesting that someone is suggesting going back and redoing that, and maybe it did flow from the question I asked, but do you take Mr. Bob to be suggesting that?

[00:59:20] Speaker 01:
Do you take that to be a sequelae of some line of argument that we're...

[00:59:24] Speaker 07:
Well, if the district, I think the point is that even if the Bob law firm has a valid charging lien or had a valid charging lien, how would that change the outcome?

[00:59:41] Speaker 07:
Because the Bob law firms work

[00:59:45] Speaker 07:
for one thing, was all done after the work of the former attorneys at issue.

[00:59:51] Speaker 07:
So clearly, the former attorney's charging lien would have a priority.

[00:59:58] Speaker 07:
That's one point.

[00:59:59] Speaker 07:
And the other is that basically, if

[01:00:05] Speaker 07:
If the case were remanded to the district court and the district court were instructed to go back to the drawing board and recalculate what it previously awarded under EAGA, it seems to me that's starting from scratch.

[01:00:24] Speaker 07:
That is a do-over.

[01:00:28] Speaker 01:
And in your view, if we were to hold that the district court had misapplied the Indiana lien law to require both prongs, and really only one is required, A, does there need to be a remand?

[01:00:40] Speaker 01:
And B, what does the district court need to find out and hold on remand?

[01:00:44] Speaker 01:
Decide.

[01:00:46] Speaker 07:
Well, I would also say that it was the BOP law firm never argued the first prong, the prong that it secured

[01:00:58] Speaker 07:
the result here until this appeal.

[01:01:02] Speaker 07:
That's not an argument that was made in the district court.

[01:01:07] Speaker 07:
That's nowhere to be found in all the briefs and the hearing transcripts or anywhere else.

[01:01:15] Speaker 02:
But it is fair to say that it was arguing that it was entitled to a lien under Indiana law.

[01:01:24] Speaker 02:
I agree with your point about it, didn't go into details, but that was the general argument.

[01:01:30] Speaker 07:
That was the argument, yes.

[01:01:32] Speaker 02:
And so the district court, in its opinion, lays out the two prong, all right?

[01:01:40] Speaker 02:
And I was trying, this is an experienced district court judge.

[01:01:47] Speaker 02:
I thought, the district court judge is clearly aware of the two prongs.

[01:01:54] Speaker 02:
and that they're independent.

[01:01:56] Speaker 02:
I mean, he can read.

[01:01:58] Speaker 02:
And so why doesn't he deal with both of them?

[01:02:02] Speaker 02:
And I thought, well, he was trying to figure out what does he do if he decides that the fund was created by the Bopford peppers.

[01:02:17] Speaker 02:
And that's why I thought he was looking to these other cases.

[01:02:19] Speaker 02:
But I may be wrong about all of that.

[01:02:21] Speaker 02:
But in any event,

[01:02:25] Speaker 02:
The issues, he asked for the briefing on all these issues.

[01:02:29] Speaker 02:
So he had everything before him when he ruled.

[01:02:32] Speaker 02:
And I thought, then what happens if we say there's an error of law?

[01:02:37] Speaker 02:
Because he didn't make an express finding about the second alternative.

[01:02:43] Speaker 02:
And I thought, well, what happens?

[01:02:45] Speaker 02:
And that's why my first question, argument open to Mr. Bob, was what's next if you win?

[01:02:54] Speaker 02:
on that era of law argument.

[01:02:57] Speaker 07:
And the second argument that you're talking about is that the Bopp law firm secured the award.

[01:03:07] Speaker 07:
But how could the district court have erred by making a finding for which there was no submission in the first place?

[01:03:14] Speaker 07:
There's no submission by the Bopp law firm in the record that it

[01:03:24] Speaker 07:
its efforts solely secured those funds.

[01:03:28] Speaker 07:
I understand there's been rhetoric today about how the Bob Law firm turned things around and the client didn't agree, but in any event, the issue that was briefed extensively and also argued this morning was that the Bob Law firm shouldn't have been held to the EAGA

[01:03:53] Speaker 07:
the hourly rate, and that it should get a higher rate under its fee agreement, a fee agreement that it raised a claim for and then dismissed the claim with prejudice.

[01:04:11] Speaker 01:
So in answer to my question, whether we would have to remand, what's your answer?

[01:04:21] Speaker 07:
I don't believe that the court has to remand or should remand.

[01:04:26] Speaker 01:
I mean, I'm assuming that we disagree with the district court's reading that you need both factors, if we so held.

[01:04:33] Speaker 07:
That it would be harmless error.

[01:04:36] Speaker 01:
Which would be harmless error?

[01:04:38] Speaker 07:
that the district courts finding that Indiana law requires both factors would be harmless.

[01:04:46] Speaker 01:
And that's because the BOP law firm has forfeited the argument that it secured the funds?

[01:04:53] Speaker 07:
That and also, and of course, the reversal and remand would also require a finding that the BOP law firm had a valid charging lien, or maybe would after remand.

[01:05:09] Speaker 07:
But even if the BOP law firm had a valid charging lien, its charging lien couldn't start before it entered in appearance.

[01:05:23] Speaker 07:
it can't go back and try to simply take money away from the former attorneys on the theory that it should have gotten more than what the statute says it should get.

[01:05:36] Speaker 07:
That's really an issue for Congress.

[01:05:38] Speaker 07:
If litigants and their lawyers don't like the hourly rate, index it to inflation or

[01:05:48] Speaker 07:
to match the market in DC, it would have to be raised 10 times for better or worse.

[01:05:54] Speaker 06:
But I may be not recalling sufficiently.

[01:06:02] Speaker 06:
Was this extensively briefed, this harmless air argument in this appeal?

[01:06:11] Speaker 07:
No, I don't believe so.

[01:06:13] Speaker 07:
We simply pointed out that the BOP law firm hadn't raised the, we of course were seeking affirmance, but we simply pointed out that the BOP law firm hadn't argued in the district court that its efforts secured the award.

[01:06:32] Speaker 07:
But moreover, the record didn't support that.

[01:06:36] Speaker 06:
And I think about all that, but without more briefing, I think I would probably have more confidence in the district court deciding that question before we decided without any briefing or without with hardly any briefing.

[01:07:00] Speaker 07:
I would say that the Bob Law firm had an opportunity to brief that before.

[01:07:06] Speaker 07:
How many bites at the apple?

[01:07:08] Speaker 06:
Even the forfeiture argument that you're making seems like it probably best resolved in the first instance by the district court.

[01:07:18] Speaker 07:
Why didn't the Bob Law firm make the argument before?

[01:07:22] Speaker 07:
If the Bob Law firm filed two motions

[01:07:26] Speaker 07:
to an original motion.

[01:07:28] Speaker 06:
Why didn't they make the argument that they did not forfeit the argument or why did they not make the argument that you think was forfeited?

[01:07:37] Speaker 07:
Why did they not make the argument that they're now hanging their hat on?

[01:07:45] Speaker 06:
What you just said is perhaps a very persuasive forfeiture argument, but usually

[01:07:51] Speaker 06:
persuasive arguments get made in briefing before courts decide them?

[01:08:00] Speaker 07:
Well, the two motions that the Bob Law firm filed were its opportunity to speak now or forever hold his peace.

[01:08:09] Speaker 07:
And now, years after the fact,

[01:08:11] Speaker 07:
is come up with a different argument than it wishes it had been made before.

[01:08:17] Speaker 07:
So did the district court?

[01:08:19] Speaker 06:
I hear all that.

[01:08:20] Speaker 06:
I'm not saying that I think you're wrong.

[01:08:23] Speaker 06:
I'll drop it after this comment.

[01:08:25] Speaker 06:
I'll let you respond to my comment, and then I'll get out of the way here.

[01:08:28] Speaker 06:
But everything you just said seems like something you should tell the district court in your efforts to persuade them that the BOP law firm has forfeited

[01:08:40] Speaker 06:
a claim.

[01:08:41] Speaker 06:
And if you succeed, good.

[01:08:45] Speaker 06:
And if you, for you, and if you don't succeed, good for them.

[01:08:48] Speaker 06:
But it seems like it would be a bit odd for us to just decide it now.

[01:08:54] Speaker 07:
Well, except if the alleged error were harmless error, there'd be no reason to brief it.

[01:09:01] Speaker 07:
And we couldn't respond to an argument that wasn't made.

[01:09:05] Speaker 07:
We weren't going to respond to a motion

[01:09:09] Speaker 07:
for charging lien and say, well, their arguments are wrong.

[01:09:12] Speaker 07:
But there's another argument that they could have made.

[01:09:15] Speaker 06:
I'm not saying you forfeit your argument.

[01:09:17] Speaker 06:
I'm just saying you haven't briefed your forfeiture argument.

[01:09:20] Speaker 06:
So that forfeiture argument shouldn't be decided until you've briefed it, probably before the district court.

[01:09:25] Speaker 07:
Well, except they didn't.

[01:09:27] Speaker 07:
They didn't brace the argument before.

[01:09:30] Speaker 02:
There's also the point that the district court held a hearing

[01:09:34] Speaker 02:
on this whole matter.

[01:09:35] Speaker 02:
Yes.

[01:09:36] Speaker 02:
And previously, they issued an order saying, I want the parties to submit three things.

[01:09:43] Speaker 02:
All right.

[01:09:43] Speaker 02:
Then he held a hearing.

[01:09:45] Speaker 02:
And everybody had a chance to speak and say whatever they wanted to.

[01:09:50] Speaker 02:
And the district court said, anybody got anything else to say?

[01:09:54] Speaker 02:
And the district court says, OK, I'm going to take his under advisement.

[01:10:00] Speaker 02:
He didn't say those exact words.

[01:10:01] Speaker 02:
But I mean, he issued his order later or his

[01:10:04] Speaker 02:
memorandum of opinion later, after the hearing.

[01:10:07] Speaker 07:
I like the memorandum of opinion, and Your Honor's characterization of what the district court said is certainly faithful to the transcript.

[01:10:15] Speaker 07:
And my synopsis was speak now or forever hold your peace.

[01:10:18] Speaker 07:
But there was plenty of opportunity for the Bob Law firm to make this argument factually and legally.

[01:10:29] Speaker 07:
And for whatever reason, it did not.

[01:10:33] Speaker 01:
So you just referred a few times to harmless error, and I'm not sure exactly what you're referring to.

[01:10:40] Speaker 01:
What was the error that was harmless?

[01:10:43] Speaker 07:
I was referring in, I believe the phrase was actually in Judge Roger's question.

[01:10:49] Speaker 02:
I was going to say, don't blame the attorney.

[01:10:52] Speaker 02:
But it's not a blame.

[01:10:58] Speaker 07:
I think it's a fair characterization.

[01:11:01] Speaker 01:
The district court erred in thinking both strands of the lien law in Indiana were required.

[01:11:11] Speaker 01:
And if that's error, we haven't decided that, obviously.

[01:11:14] Speaker 01:
But assuming that that were error,

[01:11:18] Speaker 01:
It's harmless because?

[01:11:20] Speaker 07:
Because there was no evidence or argument presented to the district board that Indiana law required both prongs and that the pop law firm satisfied both prongs.

[01:11:36] Speaker 02:
Well, so we're clear.

[01:11:37] Speaker 02:
I don't want to mislead Judge Pillard here.

[01:11:43] Speaker 02:
but we go on and then I'll clarify.

[01:11:46] Speaker 01:
You said there was no argument or evidence that Indiana law required both, but then the district court so held.

[01:11:54] Speaker 01:
And the strand that the BOP law firm was relying on before, I think, was that

[01:12:09] Speaker 01:
They had an understanding with True the Vote that they would be paid out of the EJA award.

[01:12:16] Speaker 07:
No?

[01:12:17] Speaker 07:
Well, they had a retainer and then... They had an understanding with True the Vote that was reflected in the fee agreement.

[01:12:29] Speaker 01:
They didn't pay their hourly rate and they had a lien, they're saying.

[01:12:33] Speaker 07:
Yes, and the source of the lien could only be one of two things.

[01:12:39] Speaker 07:
It could either be the fee agreement or whatever they contribute to the EAGA award.

[01:12:48] Speaker 07:
The fee agreement is gone as the source of the lien at this point.

[01:12:54] Speaker 07:
So it's simply what they contributed to the fee award.

[01:13:04] Speaker 01:
And your position, so one way of looking at it is connoisseur, but the other way is forfeiture, that they have never argued that until this court that their efforts secured the award.

[01:13:16] Speaker 01:
Yes.

[01:13:20] Speaker 07:
And they made that argument after dismissing their claims in Indiana.

[01:13:27] Speaker 01:
They made that argument to us?

[01:13:29] Speaker 07:
Yes, after dismissing their claims in Indiana.

[01:13:35] Speaker 01:
All right.

[01:13:36] Speaker 07:
Thank you.

[01:13:37] Speaker 07:
Thank you.

[01:13:37] Speaker 01:
Did Mr. Falk reserve any time for the button?

[01:13:42] Speaker 07:
Please.

[01:13:44] Speaker 03:
You have your three minutes.

[01:13:54] Speaker 05:
Thank you.

[01:13:57] Speaker 05:
Just a couple of points first.

[01:13:59] Speaker 05:
The council argued and derived all sorts of meaning from the dismissal of the lawsuit in Indiana between the Bob Law Firm and True the Vote.

[01:14:11] Speaker 05:
That dismissal was based upon a confidential settlement.

[01:14:16] Speaker 05:
And he's reading into that settlement all sorts of things that I can't talk about.

[01:14:23] Speaker 05:
And the dismissal was part of the execution of the settlement, as explained in the dismissal pleading.

[01:14:33] Speaker 05:
The only other thing we know is that True the Vow assigned all of their interest in this fund to us.

[01:14:46] Speaker 05:
Now, why do we derive from that?

[01:14:49] Speaker 05:
Is that a negative inference should be drawn from that?

[01:14:53] Speaker 05:
Well, of course not.

[01:14:55] Speaker 05:
They're giving up any right they have to any of that to us.

[01:14:59] Speaker 01:
Do you have any case law on whether, I think the way one measures claim preclusion is by what was raised in the complaint and that any of those

[01:15:14] Speaker 01:
claims that are resolved with prejudice are thereby precluded.

[01:15:18] Speaker 01:
So we don't need to know the terms of the settlement agreement.

[01:15:20] Speaker 01:
We know that the case was dismissed with prejudice, and we know what the case was about.

[01:15:27] Speaker 01:
And so anything that relates to that same case is done.

[01:15:33] Speaker 01:
We can't relitigate that.

[01:15:34] Speaker 01:
I think that's the argument, preclusion, and I think there's support for that.

[01:15:38] Speaker 01:
Do you have anything to the contrary that you want to draw our attention to?

[01:15:42] Speaker 01:
Well, this is a law that says a dismissal voluntary dismissal with prejudice.

[01:15:48] Speaker 01:
Lacks claim, preclusive effect.

[01:15:51] Speaker 05:
Well, if it's based upon a settlement, logically, it's in terms of the settlement that would govern that action of the court in granting the dismissal.

[01:16:03] Speaker 05:
But no, I don't have any cases because this is the first time this issue has ever arisen.

[01:16:14] Speaker 05:
You know, I think it's perfectly obvious from what I can talk about and what has happened is there's no negative influence to be drawn from the settlement and dismissal.

[01:16:28] Speaker 01:
It's not a negative influence, it's just that that's over and can't be relitigated, that's all.

[01:16:33] Speaker 05:
It's not being relitigated.

[01:16:35] Speaker 01:
Right, so great.

[01:16:36] Speaker 05:
No, it's being collected as a result of a lien.

[01:16:44] Speaker 05:
That is different.

[01:16:48] Speaker 05:
And I mean, that's my argument based upon something I haven't researched.

[01:16:53] Speaker 06:
I thought that for racial and economic purposes, that it is often the case that a dismissal with prejudice is on the merits.

[01:16:59] Speaker 06:
But it will sometimes be the case that it's not on the merits.

[01:17:02] Speaker 06:
For example, if it was a statute of limitations reason in federal court, it might then be litigated in state court.

[01:17:09] Speaker 06:
Of course.

[01:17:10] Speaker 06:
Or a settlement where it were.

[01:17:12] Speaker 06:
And you might be wrong about

[01:17:14] Speaker 06:
the Race to Dakota, they may be entirely right about Race to Dakota, but it again seems like something that it's not, nothing.

[01:17:22] Speaker 05:
That's true, but here the critical element is the settlement and the settlement's confidential.

[01:17:28] Speaker 01:
All right, so do you want to just wrap up?

[01:17:32] Speaker 05:
Yes, I would want to wrap up by saying that as the court found in the opinion you aren't reviewing,

[01:17:41] Speaker 05:
Former attorneys never, ever, ever contested the validity of the lien.

[01:17:46] Speaker 05:
Now, we did assert it, the lien, and the justification for the lien in our notice of attorney's charging lien, which began all this.

[01:17:57] Speaker 05:
We enjoyed appendix 16 through 19, where we said, quote, that the brought up law firm has a substantial interest in any recovery, end of quote.

[01:18:10] Speaker 05:
Right?

[01:18:11] Speaker 05:
And then we, as a result of the briefing, our order by the court that resulted in that hearing that resulted in the opinion that we are being reviewed, in our supplemental brief, we said, Bob Law firm seeks to have the fees and costs due then for services in the suit secured out of the judgment or recovery in the suit.

[01:18:40] Speaker 05:
So we absolutely argued that an equitable lien in the fund, we were arguing an equitable lien in the fund in both of those instances.

[01:18:53] Speaker 05:
Why didn't we go farther?

[01:18:54] Speaker 05:
It was never contested.

[01:18:56] Speaker 02:
All right.

[01:18:58] Speaker 05:
Thank you.

[01:18:58] Speaker 01:
Thank you.