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Before we get started today, I just want to welcome all of you.

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For those of you who don't know, we're the Court of Appeals for the Federal Circuit.

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And about once a year, we do this, which is that because we're a national court, we travel to some other venue.

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And the purpose of that is, one, to try to engage with district court judges in the area, which we do when we're here.

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But the most important purpose is to reach out to law schools and to try to visit there.

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So with our wonderful staff, they set us up in courtrooms in different law schools around the country.

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And this week we sat yesterday at SMU, we're at Texas A&M today, and I'm going to be at Baylor this evening, not for a sitting, but for a conference.

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So I welcome you.

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I want to thank the law school.

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Their staff and their leadership has been very cooperative in setting all of this up.

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And of course, I want to thank our staff, which is just monumental in doing this.

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And I'd also like to thank the advocates, because at least for some of you, maybe some of you come from Dallas, so this is better than going to D.C.

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But I know for most of you, this is a little bit of a bump and a hardship.

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But we very much appreciate your cooperation in making it possible for us to do this.

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So, good morning to all.

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The first case for argument is 18-1757, Haggard v. United States.

[00:01:18] Speaker 01:
Mr. Grant.

[00:01:19] Speaker 02:
Good morning, Your Honors.

[00:01:20] Speaker 02:
Eric Grant for the United States.

[00:01:22] Speaker 02:
In 2014, the parties agreed to settle this Rails to Trails class action for $110 million.

[00:01:28] Speaker 06:
On page six of the blue brief, the government argues that, quote, while the series of three spreadsheets I'm inserting are necessary to understand the methodology,

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The flaws in the allocations to the individual class members do not leap off the pages without analysis.

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Is the information that class council has provided class members, including that series of three spreadsheets, sufficient to apprise class members of the precise methodology employed to calculate the value of each property?

[00:02:06] Speaker 02:
Your Honor, I think at this point the government has no continuing objection to counsel's disclosures to his clients.

[00:02:14] Speaker 06:
That wasn't my question.

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My question was not whether you object, but whether what was provided is sufficient to apprise the class members of the precise methodology employed.

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As I understand it, Your Honor, the

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information provided to class counsel's clients is sufficient at this point.

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Class counsel has complied with the court's mandate.

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Our point in this appeal, Your Honor, is that in the months and months after this case came back from the court's 2016 decision, counsel took

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conduct that positively and unequivocally evinced a repudiation or an abandonment of the 2014 settlement.

[00:03:07] Speaker 06:
And that's the class council, right?

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Could class council do that consistent with a fiduciary obligation?

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What you're saying is that class council by, for instance, saying, well, we're going to try this case.

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uh, evidenced abandonment, right?

[00:03:29] Speaker 02:
That's one item of evidence among many, Your Honor, yes.

[00:03:31] Speaker 06:
Well, I have to tell you, that looked to me like a shakedown of his clients, and that doesn't necessarily mean that the clients are abandoning the case.

[00:03:41] Speaker 02:
Well, Your Honor, we, I would not put too fine a

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I would respectfully point the court to a case cited in plaintiff's own brief called Amin versus Merritt Systems Protection Board 951F2 at 1254, where this court said, the plaintiffs are bound by the authorized actions of their representatives.

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An attorney retained for litigation purposes is presumed to possess express authority with respect to settlement.

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And the client bears the burden of rebutting this presumption with affirmative proof

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that the attorney lacked settlement authority.

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And as we put it on page 18 of our reply brief, class counsel can't have it both ways.

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He can't.

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I agree with that.

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But I think the way he can't have it is to do the kind of shenanigans that were performed in attempting to, what I believe, was get the members of the class to pay up on the contingent fee.

[00:04:42] Speaker 02:
Well, Your Honor, without getting into shenanigans or casting aspersions, our point in this regard is that... You can.

[00:04:50] Speaker 06:
I can.

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Yes, Your Honor.

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If he had the authority, apart from approval by the Court of Federal Claims, to bind his clients and

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the government on the other side to a settlement.

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If approval was not required to enter into a contract, then the Court's federal claims approval was not.

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That has to be clear and unequivocal.

[00:05:17] Speaker 02:
Yes, Your Honor, and we all agree on that.

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And we all agree that that can be

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shown by conduct.

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And as the parties have phrased it, a contract is abandoned if the actions of the contracting parties are positive, unequivocal, and inconsistent with an intent to be further bound by the contract.

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And similarly, all parties agree that a contract

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Well, Your Honor, we've documented on pages 26 through 34 of the blue brief the continuing series of actions and on-the-record statements over a period comprising 14 months after this Court's decision.

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I'd like to focus on four of those.

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I think it's at least ambiguous.

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And the reason I think it's ambiguous is what I said.

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I think this was an attempt by counsel to convince the holdouts on the contingent fees

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that, listen, you have to play the game or we're going to roll the dice again.

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But that didn't mean that the dice were necessarily going to be rolled.

[00:06:29] Speaker 04:
Well, Your Honor, I... Is there any communication with the government that evidences an intent to abandon the settlement agreement?

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It seems to me that mostly what you're relying on is communications between the class council and the class.

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Is there any specific thing you can point to in the record that is suggesting to the government that the class no longer agrees to the number that you offered and agreed to?

[00:06:56] Speaker 02:
Certainly, Your Honor.

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At the beginning,

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We focused on the communications with class counsel, between counsel and his clients.

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But beginning in November of 2016, class counsel vouched to the CFC and to the government in a public filing that, quote, the prior settlement no longer exists.

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And he accordingly sought both discovery and a trial setting for the fall of 2017.

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And... But what did he mean by the prior settlement?

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Because, I mean, this case has a really complicated procedural history, and part of the problem was that prior settlement included a specific carve-out for, as I understand it,

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attorney fees from the lump sum, and we rejected that in our last opinion.

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Couldn't it be that that's what he meant, that that specific allocation was no longer good, but that he wasn't backing out of the top number that he'd agreed with you on previously?

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I just, I don't see anything where he suggested that because

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that specific allocation wasn't going to go through, that he was going to go back and open up the top number again?

[00:08:12] Speaker 02:
Yes, Your Honor.

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From the government's perspective, the $110 million cap was what the government had bargained for.

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I think that statement is the first in a series of statements where class counsel essentially said through on-the-record statements in front of them.

[00:08:32] Speaker 04:
Well, can you point it to me?

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I mean, I think it helps to look at the exact language here, because I find a lot of this very ambiguous, too.

[00:08:39] Speaker 02:
I quoted from the appendix, volume 1, page 5108, and that's in

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a motion that counsel made for a trial session and are at the top there of page 5108.

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Our point is it's an unequivocal statement.

[00:09:06] Speaker 06:
No, it doesn't.

[00:09:07] Speaker 06:
No, it isn't.

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It says, because the judgment has been vacated and the prior settlement no longer exists, that's what you're relying on.

[00:09:17] Speaker 02:
That's the first of a series of statements.

[00:09:19] Speaker 06:
Yes, sir.

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of the prior sentiment can or will be resurrected.

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Assume.

[00:09:30] Speaker 06:
Yes, Your Honor.

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Cannot assume.

[00:09:31] Speaker 04:
I mean, how does that evidence and intent to abandon on their part?

[00:09:35] Speaker 04:
It seems to me that's more a statement of how they view the procedural posture here, is they don't know what's going to happen on remand, particularly since they have to come up with these and give evidence about the allocation, and they can no longer take their attorney fee off the top dollar amount.

[00:09:55] Speaker 02:
Your Honor, the law does not require a subjective intent.

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The law is focusing on objective conduct.

[00:10:01] Speaker 04:
But it has to be clear.

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This doesn't say the class no longer agrees to the settlement and we intend to not hold the government to their bargain or something like this.

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This doesn't even refer to the top line number.

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It's not clear whether it's referring to, again, the particular allocation between

[00:10:21] Speaker 04:
the damages to the class counsel and the attorney fees, which certainly you agree had to be redone.

[00:10:27] Speaker 02:
Yes, Your Honor.

[00:10:28] Speaker 04:
And unless, I mean, do you have anything better than this?

[00:10:33] Speaker 02:
I have something additional.

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I guess I would point out this is a motion for a trial setting, a motion to set a case for trial.

[00:10:41] Speaker 04:
But that still doesn't suggest that they need a

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A difference from the top?

[00:10:48] Speaker 04:
Yeah, I get it, but it doesn't sound to me like they're saying maybe the trial is on a new fairness hearing and how to reallocate damages.

[00:10:56] Speaker 02:
No, Your Honor.

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This pleading, which is only

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Three substantive pages is designed to set the case for trial on all subclasses.

[00:11:08] Speaker 04:
And I'll go on and say on- But isn't that exactly the point, that the subclasses may, the payments to them may need to be redone after the formulas for the allocations are given over?

[00:11:22] Speaker 04:
And the attorney's fees are taken out and the money is re-given.

[00:11:26] Speaker 02:
At a trial on the merits, Your Honor, that's our point.

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This class counsel wanted to try the case and he asked no fewer than three additional times in December and extending into February.

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page 5397 of the appendix, pages 5432 and 33 of volume 2 of the appendix, pages 5488 and 89 of volume 2 of the appendix.

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And then, Your Honor, all parties moved for total or partial summary judgment.

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First, the plaintiffs moved for summary judgment, and that's at page 5277 of volume 1 of the appendix.

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Then the Woodleys moved for summary judgment.

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That's at page 5483.

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Then the plaintiffs moved again for partial summary judgment, page 5514.

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And then the government filed five motions for partial summary judgment.

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The point is the parties were litigating the case on the merits to a judgment that is fundamentally inconsistent with a notion on either side to settle the case.

[00:12:35] Speaker 01:
Do you maintain that there's de novo review because this is a question of contract interpretation?

[00:12:40] Speaker 02:
Is that the government's position?

[00:12:43] Speaker 02:
We do maintain it's de novo review, Your Honor, and the point is that

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abandonment and repudiation are legal conclusions applied to historical facts.

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And none of the underlying historical facts are in dispute.

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They're all public filings and on-the-record statements.

[00:13:00] Speaker 01:
And this seems to me not quibbling with the words that you've just used, that this is a highly fact-intensive inquiry.

[00:13:08] Speaker 01:
And so much everything that you've pointed to in the statements are part of a context.

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of a back and forth between the parties and things that the government said and the district court or the court of claims judge was sitting there listening to the entire back and forth

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and had to evaluate the context in which these statements were made.

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It seems to me a highly fact-intensive inquiry.

[00:13:32] Speaker 02:
Your Honor, with respect, I disagree.

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This Court's decision in a case also involving a settlement agreement between a private party and the government called Gilbert v. Department of Justice, 334 F3rd at 1072, when the only issue was

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one of law to be applied to an undisputed set of facts.

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We have plenary review of the trial case decision.

[00:13:55] Speaker 01:
Well, typically, when there's a settlement agreement, you are reviewing the four corners of the settlement agreement, and that is a legal conclusion, I think, to draw with it.

[00:14:03] Speaker 06:
I have a couple of questions.

[00:14:05] Speaker 06:
Number one, you cited this to the motion for summary judgment 5277.

[00:14:12] Speaker 06:
But if you go to 5279, that first full paragraph doesn't say that everything needs to be resolved again.

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In fact, it says much of the prior case resolves everything.

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So you can't – you can't say that they've abandoned the entire prior – the second one.

[00:14:36] Speaker 02:
Litigating a case to judgment on the merits in multiple motions for summary judgment and multiple times seeking a trial on the merits is inconsistent with the notion that the case is settled.

[00:14:51] Speaker 06:
Okay, here's my second question.

[00:14:54] Speaker 06:
You're from the DOJ.

[00:14:55] Speaker 06:
Yes, Your Honor.

[00:14:56] Speaker 06:
I always expect straight answers from the DOJ, and I always get them.

[00:15:01] Speaker 06:
So here's my question.

[00:15:02] Speaker 06:
Here's a hypothetical.

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Exactly the same facts as this case, except Caseburg wasn't decided.

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What would the government's position be?

[00:15:10] Speaker 02:
I don't know, Your Honor, but I do know that.

[00:15:15] Speaker 06:
But let me interject.

[00:15:17] Speaker 06:
I hope civil procedure students in this class, Caseburg is an intervening case in this

[00:15:23] Speaker 06:
multi-party litigation in which district court holds that some of the parties don't have legal interest.

[00:15:32] Speaker 02:
Two quick points, Your Honor, and I'll try to save a tiny bit of time for rebuttal.

[00:15:37] Speaker 02:
One, our point is not that Caseburg justifies getting out of the deal.

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That's not our point.

[00:15:45] Speaker 06:
We're more sophisticated than that.

[00:15:48] Speaker 02:
But also, a reasonable government lawyer presented with Caseburg and, given the repudiation of the plaintiffs, reasonably accepted that repudiation.

[00:15:59] Speaker 06:
And I'd like to.

[00:16:00] Speaker 06:
Yeah, but my hypothetical says Caseburg doesn't exist.

[00:16:03] Speaker 01:
But you know, it's a danger time.

[00:16:05] Speaker 01:
Let me – well, we saw a rebuttal, but let me just ask you about the attorney's fees issue.

[00:16:09] Speaker 01:
Yes, Your Honor.

[00:16:14] Speaker 01:
Why is that issue not premature?

[00:16:17] Speaker 01:
Even if you were to lose here and you were to send it back to the judge, the judge could adjudicate it and then you'd have the ability to appeal that decision if indeed the judge expanded the two, whatever amount of money there is in the current existing settlement agreement.

[00:16:34] Speaker 01:
So you'll get another crack at that.

[00:16:37] Speaker 01:
Why is that ripe or ready for our adjudication?

[00:16:42] Speaker 02:
Your honor, that sounds very reasonable.

[00:16:44] Speaker 02:
I expect if we did it that way, my esteemed colleagues on the other side would say the mandate rule prevents us from waiting until the subsequent appeal.

[00:16:54] Speaker 02:
So we want to make sure that it's presented now and of course at the court.

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in its discretion thinks that the issue should be postponed, that's the Court's prerogative.

[00:17:05] Speaker 02:
But our point is very simple on the merits of that issue, that if the settlement agreement is going to be enforced, every provision of it needs to be enforced.

[00:17:15] Speaker 01:
So is there something for us to review here?

[00:17:17] Speaker 01:
Has the District Court, the Court of Claims judge, already kind of indicated or concluded?

[00:17:23] Speaker 01:
No, I've passed the threshold.

[00:17:25] Speaker 01:
I think we can revisit and reopen the settlement with regard to attorney's fees.

[00:17:29] Speaker 01:
See, I thought you were going to tell me, no, no, it's ripe.

[00:17:32] Speaker 01:
You ought to adjudicate it here and now.

[00:17:34] Speaker 02:
I do think you should adjudicate it.

[00:17:36] Speaker 02:
I hope the court doesn't reach it, but if it does get reached,

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that you should adjudicate it and you should rule in the government's favor because the Court of Federal Claims rejected our argument that further attorney's fees were precluded by the settlement agreement and indicated an intent.

[00:17:53] Speaker 01:
And that's your sole argument against reopening, right, that you can't reopen, that the settlement agreement is what it is with regard to attorney's fees?

[00:18:02] Speaker 02:
If you're going to enforce the deal, you've got to enforce the deal.

[00:18:05] Speaker 04:
And the deal – Why didn't you argue that the 54B certification was improper?

[00:18:11] Speaker 04:
and that really they had to resolve the attorney fees and send it all up at once.

[00:18:17] Speaker 04:
I mean, just because a trial court issues a 54B certification doesn't mean you have to agree to it and doesn't mean we have to enforce it.

[00:18:26] Speaker 02:
As I stand here now, Your Honor, I'm not sure why we didn't make that alternative argument, but we did clearly on the record in the court below make the argument that additional fees were precluded.

[00:18:38] Speaker 04:
Did you oppose the 54B certification?

[00:18:41] Speaker 02:
As I stand here now, Your Honor, I do not know.

[00:18:45] Speaker 04:
But I know we opposed additional fees based on — I mean, usually the Justice Department opposes bifurcation of damages and attorney's fees and things like that, because I think they usually need to be resolved altogether.

[00:18:57] Speaker 04:
I'm confused why you didn't do it here.

[00:19:00] Speaker 02:
Again, Your Honor, as I stand here, I'm sorry to say I cannot give you an answer to that question.

[00:19:06] Speaker 01:
We were — Well, you were in a position that's a little odd, because you were challenging

[00:19:12] Speaker 01:
whether or not the settlement agreement was in effect.

[00:19:15] Speaker 01:
So I understand that you were in a position where you were taking kind of inconsistent decisions.

[00:19:21] Speaker 06:
And you had the prior, not only the prior decision, but the prior series of rulings after the decision.

[00:19:29] Speaker 02:
Yes, Your Honor.

[00:19:30] Speaker 02:
And I'll make my one record cite in this regard, and that's on page 2932, paragraph 2,

[00:19:37] Speaker 02:
governs attorney's fees, and this agreement encompasses attorney's fees that have been or could be incurred.

[00:19:45] Speaker 02:
And so there's no additional room for fees outside of the agreement.

[00:19:50] Speaker 01:
Okay.

[00:19:50] Speaker 01:
Thank you.

[00:19:51] Speaker 01:
All right.

[00:19:51] Speaker 01:
Mr. Phillips.

[00:19:54] Speaker 05:
Good morning, Your Honor.

[00:19:55] Speaker 05:
As it may please the Court, I guess I was slightly surprised that my friend didn't begin by the standard of review, because I do think it's extraordinarily important.

[00:20:05] Speaker 05:
candidly, the only real issue that should be before this court is abandonment.

[00:20:09] Speaker 05:
They keep throwing in repudiation, but never raised it.

[00:20:12] Speaker 06:
There's a lot of curiosity up here, though, Mr. Cobb.

[00:20:17] Speaker 06:
Let me ask you a question.

[00:20:18] Speaker 06:
Of course.

[00:20:20] Speaker 06:
Did you ever deal directly with the landowners?

[00:20:23] Speaker 05:
Me personally?

[00:20:24] Speaker 06:
Yeah.

[00:20:24] Speaker 06:
No, Your Honor.

[00:20:24] Speaker 06:
I didn't think so.

[00:20:27] Speaker 06:
And what I was saying wasn't aimed at you.

[00:20:29] Speaker 06:
But boy, I sure have a bad taste in my mouth about the implications

[00:20:35] Speaker 06:
of what seemed to have gone down in the dealings between that counsel, who I wish was here, and his client or her client.

[00:20:46] Speaker 05:
And maybe I can help you with this, because at least I mean, I've discussed this at some length with him, not surprisingly, and this is my take on it.

[00:20:54] Speaker 05:
I don't think this was a shakedown.

[00:20:56] Speaker 05:
I think what this was when he wrote

[00:20:59] Speaker 05:
When class counsel said the prior settlement no longer exists and asked for a trial, that was designed, frankly, to accomplish a couple, three objectives.

[00:21:08] Speaker 05:
One, it was to try to get the Justice Department to respond.

[00:21:12] Speaker 05:
You recall during this period, Caseburg has come out, government hasn't told us what they're going to do.

[00:21:18] Speaker 05:
We keep sending emails.

[00:21:20] Speaker 05:
We get no response.

[00:21:21] Speaker 05:
This is after years and years of litigation in which there's a pretty easy flow of information.

[00:21:27] Speaker 05:
Suddenly it's radio silence and we have no idea what's going to happen under those circumstances.

[00:21:32] Speaker 05:
So part of it was designed to say, where are we going from here?

[00:21:37] Speaker 05:
Certainly nothing reflected a desire to abandon the settlement agreement based on that.

[00:21:42] Speaker 05:
Second, they were in the process of negotiating with 253

[00:21:49] Speaker 05:
class action members and trying to figure out whether or not they are going to object to the allocations.

[00:21:56] Speaker 04:
Well, sure, but did the class council comply with our order to give the precise formulas for the allocation?

[00:22:03] Speaker 04:
Yes, absolutely.

[00:22:04] Speaker 04:
Where is that in the record?

[00:22:06] Speaker 05:
During the fairness hearing, all the parties agreed to it.

[00:22:09] Speaker 05:
I mean, I'll track down the language.

[00:22:12] Speaker 04:
You know what?

[00:22:12] Speaker 04:
The government has not done a very good job of representing its side in this fairness hearing and making sure that the class settlement is fair.

[00:22:20] Speaker 04:
They didn't do it last time around until late in the stage on appeal, and it seems like they completely abandoned their obligation here.

[00:22:27] Speaker 04:
in an attempt to get out of the settlement based on this new case law.

[00:22:31] Speaker 04:
So the fact that they agreed to it doesn't do anything for me.

[00:22:34] Speaker 04:
It doesn't seem to me that there's anything in the record that shows the class counsel sent to every single class member, here's the formula, here's the way we came up with your allocation, particularly after we got rid of the attorney fee award from that, because that would have required a recalculation, presumably.

[00:22:53] Speaker 04:
And let me add into that question, why, for example,

[00:22:56] Speaker 06:
are two pieces of real property next to each other, look like they're about the same size.

[00:23:02] Speaker 06:
And one is vastly more money than the other.

[00:23:05] Speaker 05:
Because the appraisers used a complicated appraisal process.

[00:23:10] Speaker 05:
They used different variables that count for different amounts.

[00:23:14] Speaker 06:
And were both those properties both on a 30% contingent fee?

[00:23:19] Speaker 06:
You see what I'm saying it looks like to me, that one gets bumped up because there's 30% coming out of it.

[00:23:27] Speaker 05:
Well, I don't think that's what happened in this particular case, and there's certainly no basis for making a finding like that.

[00:23:33] Speaker 05:
But I understand.

[00:23:33] Speaker 05:
It's not a finding.

[00:23:34] Speaker 05:
It's an implication.

[00:23:35] Speaker 05:
Your Honor, look, I understand that these are complicated situations.

[00:23:38] Speaker 06:
And at this point, based on a failure to obey our orders and so on, we're taking a pretty jaundiced eye and a pretty jaundiced look at the record.

[00:23:49] Speaker 05:
But that's why I think, Your Honor, the standard review is actually a good place to start, because Judge Leto

[00:23:54] Speaker 05:
dealt with these lawyers day in and day out?

[00:23:58] Speaker 04:
Sure.

[00:23:58] Speaker 04:
I mean, his appeal, he's trying to get something that he's trying to undo a settlement he agreed to.

[00:24:06] Speaker 04:
But I don't think we're super- I'm sorry, Your Honor.

[00:24:08] Speaker 05:
Who's the he you're talking about now?

[00:24:09] Speaker 05:
The government.

[00:24:10] Speaker 05:
Oh, OK.

[00:24:10] Speaker 04:
I don't think, sorry, I was pointing, but I don't think that that's our concern.

[00:24:15] Speaker 04:
Our concern is I don't see anywhere in the record that shows that the class council ever provided sufficient information to all of the class members and the government

[00:24:25] Speaker 04:
so that a proper fairness hearing could be undertaken.

[00:24:29] Speaker 05:
Well, I'm going to hope that my friend who represented the Woodleys and therefore had all of the data put in front of him.

[00:24:34] Speaker 04:
Yeah, but here's the problem.

[00:24:35] Speaker 04:
The Woodleys, again, the record appears to show that the Woodleys got an extra payment after they complained and they withdrew their complaint.

[00:24:43] Speaker 04:
Right.

[00:24:44] Speaker 04:
That doesn't mean that there are other people in this that shouldn't have been represented and been given the information.

[00:24:50] Speaker 04:
and told the implications of all that, and where in the record does it show that happened?

[00:24:54] Speaker 04:
Because I'll tell you what it looks like, and I don't mean to be overly jaundiced either, but it looks like the Woodleys were bought off.

[00:25:01] Speaker 05:
I don't doubt that there was a part of a settlement as part of that deal.

[00:25:06] Speaker 05:
I mean, at the end of the day, though, the question is, what's the scope of your review?

[00:25:09] Speaker 04:
But that's not how these fairness hearings should work.

[00:25:12] Speaker 04:
Well, you may say it's a scope of a review, but we've already heard this case, and we sent out a mandate, and I think we have our own suesponte authority to determine whether you complied with that mandate on remand.

[00:25:24] Speaker 05:
But Your Honor, every document in this case, every document was on the website.

[00:25:29] Speaker 05:
The number of meetings are dozens in which each individual member of the class was discussed, why their valuation, how they got to that valuation.

[00:25:41] Speaker 05:
Not a single one complained.

[00:25:43] Speaker 05:
Dozens of them came to the hearing and testified.

[00:25:46] Speaker 04:
Do we know how the part that was previously allocated to attorney's fees was redistributed across the class?

[00:25:55] Speaker 05:
Well, everybody got exactly, everybody got the same number that they had in the original allocation.

[00:26:01] Speaker 05:
Because it's 110 million that had been allocated fully.

[00:26:03] Speaker 05:
But wasn't there additional 30% now thrown into the pot because- That's because the assumption was that that would come out of the allocated amounts, and now that's not happening.

[00:26:15] Speaker 04:
So they're not getting, so the contingency fee under the settlement- Right, that's not part of the- It goes back to the

[00:26:22] Speaker 04:
to the landowners.

[00:26:24] Speaker 04:
Were they told when they re-signed all these contingency fee agreements that the settlement didn't require a contingency fee agreement for them to be part of it?

[00:26:31] Speaker 04:
Yes, they were told all of that.

[00:26:33] Speaker 04:
And they all still assigned away 30 percent of their rights?

[00:26:36] Speaker 04:
Twenty-four percent.

[00:26:39] Speaker 05:
But again, Your Honor, it seems to me the question here is it not, you know, in the act there's no evidence whatsoever of anyone complaining about anything or anyone feeling as though the information

[00:26:50] Speaker 05:
was not made available to them.

[00:26:51] Speaker 05:
And all of the evidence is that an enormous amount of time and energy was spent with Judge Leto supervising it to make sure they got all the information.

[00:27:00] Speaker 05:
Because that was the one thing Judge Leto said over and over and over again.

[00:27:03] Speaker 05:
The one thing he was going to be absolutely certain was that this court's mandate was satisfied.

[00:27:08] Speaker 05:
And the government hasn't asked you to review whether or not those statements are accurate or not.

[00:27:13] Speaker 05:
And candidly, there's a reason for that.

[00:27:15] Speaker 05:
It's because there's no evidence.

[00:27:18] Speaker 04:
Well, I'm not sure that that's the government's reason.

[00:27:20] Speaker 04:
I think the government's reason is they saw this new case law out there, and they were just going to try to get out of paying it all together.

[00:27:27] Speaker 04:
And that's where they put their eggs in that basket.

[00:27:29] Speaker 05:
Well, except then they did.

[00:27:31] Speaker 05:
And now they put and then they threw that basket away when they got here.

[00:27:35] Speaker 05:
And now the only basket they've got is a claim that somehow we abandoned the settlement agreement.

[00:27:43] Speaker 06:
You have the Woodleys in their council, and you have class council.

[00:27:46] Speaker 06:
Were there any other lawyers involved for the non-contingency landowner?

[00:27:51] Speaker 05:
Yes, there were two or three other lawyers who testified at the hearing.

[00:27:55] Speaker 05:
And they were satisfied?

[00:27:56] Speaker 05:
And they were satisfied.

[00:27:58] Speaker 06:
Is that in the record?

[00:27:58] Speaker 05:
That's in the Fairness Hearing, Your Honor.

[00:28:00] Speaker 05:
Absolutely.

[00:28:01] Speaker 05:
And I would urge the Court to read the Fairness Hearing, because the statements of the class members are pretty remarkable.

[00:28:08] Speaker 05:
Give me a page for where they're testifying.

[00:28:11] Speaker 05:
Do you have a place where those lawyers are making statements?

[00:28:23] Speaker 05:
I'll get it for you or my colleague will get it for you.

[00:28:42] Speaker 05:
completely undisputed, the inferences you draw from the facts are matters for the trial court to make the determination and subject to deferential review.

[00:28:52] Speaker 05:
So a statement such as the prior settlement no longer exists, sure, you can read that in a variety of different ways.

[00:29:00] Speaker 05:
And if you read it in context, it is clear is that it's not an abandonment.

[00:29:06] Speaker 05:
I'm sorry?

[00:29:06] Speaker 05:
It has to be unambiguous.

[00:29:08] Speaker 05:
Right.

[00:29:09] Speaker 05:
And that's – which is even better.

[00:29:10] Speaker 05:
So first of all, in order to get to abandonment, it has to be unambiguous.

[00:29:14] Speaker 05:
It clearly – there's not a single one of these statements that's unambiguous.

[00:29:17] Speaker 05:
And the trial judge analyzed them carefully and reached the conclusion that they were, in fact, not a basis for an abandonment.

[00:29:27] Speaker 05:
And to be clear, Your Honors, that's the only question the government's put before you, is whether or not there's an abandonment.

[00:29:34] Speaker 05:
And so all you have to do –

[00:29:36] Speaker 06:
I am to agree with Judge Hughes about our mandate and our continuing interest in our mandate.

[00:29:43] Speaker 06:
That's, frankly, my focus here.

[00:29:46] Speaker 05:
And I guess I would ask the Court to step back and think about this from the class members' perspective.

[00:29:52] Speaker 06:
Oh, I understand.

[00:29:52] Speaker 05:
Who have waited now for years and years from a settlement and are being I suppose they thought the government itself was being a little too protective.

[00:30:03] Speaker 06:
What makes no sense to me, and this was encapsulated

[00:30:09] Speaker 06:
Now, this is sort of a Montesquieu and Russo and enlightened self-interest kind of analysis, but it makes no sense to me that a fully informed member of the class who knows that under the mandate of this court, the attorney's fees required by the statute are it and are sufficient to pay counsel would then say, gee, I just want to give you a gift of 30 percent or whatever the percentage is at that point.

[00:30:38] Speaker 05:
Well, the question is, do you want me to continue to represent you on a contingent fee basis going forward when we don't know what's going to happen?

[00:30:46] Speaker 05:
It's not as though this is, it's not like somebody showed up at the end of it today.

[00:30:51] Speaker 06:
Were they told that it was, oh, the award was for all fees incurred or to be incurred?

[00:31:02] Speaker 05:
I don't know the answer to that, Your Honor.

[00:31:05] Speaker 05:
I mean, my guess is they were – I mean, I don't think – I don't think that was – You see our concern.

[00:31:11] Speaker 05:
No, I do see your concern.

[00:31:12] Speaker 05:
But the flip side of it is there's also room in any fee-shifting provision to allow the fees – the contingent fee arrangement.

[00:31:20] Speaker 05:
So you sit down and you talk to your client, and the client says, going forward, I want to – Except we said that there wasn't as far as the statute went.

[00:31:28] Speaker 05:
That's why – There's no common fund.

[00:31:31] Speaker 05:
didn't say there wasn't any contingent fee.

[00:31:33] Speaker 05:
Venegas wouldn't – Venegas says clearly that the – how much the plaintiffs agree to pay their defense counsel is not bound by the fee-shifting provision.

[00:31:42] Speaker 05:
I know, but it doesn't make sense to me.

[00:31:44] Speaker 06:
I understand your argument.

[00:31:47] Speaker 06:
Okay.

[00:31:47] Speaker 06:
Let's – I hate to have a judge that says it doesn't make sense to me, but I guess I'll leave it at that.

[00:31:51] Speaker 06:
Hard way to lead up, but we need to hear from your colleagues.

[00:31:55] Speaker 06:
Thank you.

[00:31:55] Speaker 06:
But I did understand your argument perfectly.

[00:32:01] Speaker 03:
Thank you, Your Honors.

[00:32:02] Speaker 03:
I'll just face with the normal of where to start, because I'm here to answer your questions to the best of my ability.

[00:32:08] Speaker 03:
Judge Wallach, there was considerable discussion of a number of the topics that you've raised at the second fairness hearing.

[00:32:15] Speaker 03:
There were at least three class members who were represented by counsel at that hearing.

[00:32:21] Speaker 03:
Their appearance is on the record at 97-27.

[00:32:24] Speaker 03:
I was at the fairness hearing.

[00:32:27] Speaker 03:
Mr. Scott was representing the young family.

[00:32:31] Speaker 03:
West Point Properties was represented by Mr. Sanders.

[00:32:36] Speaker 03:
And actually, if memory serves me correctly, there was a lawyer who got delayed and he arrived at the hearing late, and I'm not sure he's represented in the page.

[00:32:47] Speaker 03:
He was there at the hearing and he did speak later on.

[00:32:50] Speaker 03:
There were some 50-some class members who spoke at the fairness hearing.

[00:32:54] Speaker 03:
On your question, Judge Hughes, about the certification,

[00:32:58] Speaker 03:
There was about a nine-month period after this course remand where it was really unclear how best to comply with the course mandate.

[00:33:07] Speaker 03:
And there were differing views about what information would be sufficient.

[00:33:11] Speaker 03:
That was when all the fog of war litigation was going on about the motions.

[00:33:15] Speaker 03:
By June of 2017, about nine months after Judge Leto had had his first hearing in August of 2016,

[00:33:23] Speaker 03:
The government again complained that the spreadsheets were not up on the website.

[00:33:27] Speaker 03:
Class Council thereupon put up on the website, we understand, the spreadsheets that had been at issue.

[00:33:35] Speaker 03:
By the time of the fairness hearing in December of 2017, there was no dispute that all of the relevant spreadsheets were there.

[00:33:44] Speaker 03:
Anyone who wanted to try to do their manipulations of the data in there.

[00:33:48] Speaker 06:
Was there any discussion among those 50 or so witnesses

[00:33:52] Speaker 06:
Some of them must have been class members or contingent fee members.

[00:33:56] Speaker 06:
Yes.

[00:33:57] Speaker 06:
Was there any discussion of why they signed a new contingent fee?

[00:34:02] Speaker 03:
I don't recall that coming up specifically, except that I do recall, and then the fairness hearing for the record starts at page 9727 of the appendix, and then it goes for some 50 pages.

[00:34:15] Speaker 06:
And then Mr. Phillips was going to find me the page where the lawyers testified.

[00:34:21] Speaker 03:
Unfortunately, in my own tabs of the hearing, I don't have that specific, but I do recall Mr. Scott speaking, I spoke, and Mr. Sanders spoke, as I referenced.

[00:34:33] Speaker 06:
Your clients received additional money.

[00:34:37] Speaker 03:
Yes.

[00:34:39] Speaker 06:
Yes.

[00:34:40] Speaker 06:
How was that calculated?

[00:34:42] Speaker 03:
The agreement, and this is fully transparent, it was part of the record.

[00:34:46] Speaker 03:
Our agreement is part of the record on appeal and was part of the record in the fairness hearing.

[00:34:52] Speaker 03:
The Woodley struck a side agreement so that their number was equivalent to the Young's number.

[00:34:59] Speaker 03:
But the delta between what we had originally been allocated and complained about in the first appeal and what the youngs achieved on a before interest basis was to be paid out of the URA fees that were part of the first settlement agreement.

[00:35:15] Speaker 03:
So what class council agreed to do

[00:35:17] Speaker 03:
was to take that $450-some thousand dollars out of URA fees that had been awarded pursuant to the first settlement agreement and to pay the Woodleys subject to Judge Leto's agreement upon the implementation of URA fees.

[00:35:34] Speaker 06:
Did the numbers for other members of the class

[00:35:42] Speaker 06:
change for some and not for others?

[00:35:45] Speaker 03:
No.

[00:35:45] Speaker 03:
What all class members did ultimately was to agree to their original allocations, notwithstanding that they had all the information to decide whether or not they wanted to object to it.

[00:35:58] Speaker 03:
There were some class members, and this was also put on the record in the second fairness hearing, had side agreements that would be, that reflected the exact terms of them.

[00:36:11] Speaker 03:
Judge Leto looked at the agreements in the proceedings.

[00:36:15] Speaker 03:
He asked for the agreement.

[00:36:17] Speaker 03:
He took a break from the hearing, and he sat there and read the agreement and insisted that they all be put into the record.

[00:36:24] Speaker 03:
So those agreements are part of the record.

[00:36:27] Speaker 03:
as the case comes here, but no class member objected to the allocation at the second fairness hearing that had been done at the first hearing.

[00:36:36] Speaker 03:
So, Judge Hughes, I think I answered that I believe that by June of 2017 the spreadsheets were available and that there was a six-month period in which the class members could look at the spreadsheets prior to the fairness hearing in December of 2017.

[00:36:56] Speaker 03:
Notably, Judge Leto reopened Discovery in June of 2017.

[00:37:02] Speaker 06:
And there was very little.

[00:37:04] Speaker 03:
There was zero.

[00:37:05] Speaker 03:
The government didn't ask a single interrogatory, didn't ask for a single document request, made no effort to ascertain did any class member intend to abandon the settlement agreement during this

[00:37:18] Speaker 03:
November to March fog of war period during which all the litigation was occurring.

[00:37:24] Speaker 03:
And in fact, the government had represented in the August 2016 hearing

[00:37:29] Speaker 03:
that very many class members wanted to have the settlement.

[00:37:35] Speaker 03:
So regardless of what communications the government can point to prior to August 2016, the standard for mutuality of consent to abandonment cannot be satisfied as of August 2016, because the government itself said both we have a settlement number and we understand nearly all the class members want to accept their allocations.

[00:37:57] Speaker 03:
Where is that in the record?

[00:38:00] Speaker 03:
That is in the record of the 2016 hearing.

[00:38:06] Speaker 03:
And if you'll just bear with me for a second, I noted it last night.

[00:38:11] Speaker 03:
The government said on page 5066 of the appendix, quote, the vast majority, close quote, of class members, quote, want to proceed with the settlement.

[00:38:25] Speaker 03:
This was a week before the Casper decision was decided.

[00:38:29] Speaker 03:
Now, if I can point back to your hypothetical, Judge Caseburg, about the Caseburg decision, assume that Caseburg had decided that the 250 class members who had been thrown out on summary judgment were in fact entitled to a taking.

[00:38:47] Speaker 03:
The shoe would be on the other foot, and the government would be here arguing that the class can't reopen the settlement agreement simply because the size of the class has now doubled.

[00:38:57] Speaker 03:
Now, under the mobile oil case, the government accepts contract law as it applies and pertains to private parties.

[00:39:04] Speaker 03:
What they're essentially asking for here is that their repudiation and their acts to repudiate the settlement agreement have to be imputed to the class

[00:39:16] Speaker 03:
to create the mutuality of abandonment.

[00:39:19] Speaker 03:
And I submit that Judge Leto was in the best position to be able to determine was there in fact a mutual consent to abandonment.

[00:39:27] Speaker 03:
he determined reasonably that, in fact, know that this was really created by the government's own change of position.

[00:39:35] Speaker 03:
And I'm not here to criticize the government's protection of the public fisc, but I am here to say that the case really should be decided on the what's good for the goose is good for the gander principle, because had Caseburg come out in a way favorable to the class and the arguments completely flipped,

[00:39:55] Speaker 03:
The government would be making the same argument that we're not entitled to reopen the settlement.

[00:39:58] Speaker 01:
I think we have a point, but can I just move you for one minute to the URA question?

[00:40:02] Speaker 01:
Yes.

[00:40:03] Speaker 01:
So the government expressed part of the reason they were arguing it here is they feared that it would be argued below if they go back that they weighed their argument.

[00:40:11] Speaker 01:
They have a strong argument that the settlement agreement is the settlement agreement and you can't

[00:40:17] Speaker 01:
reconfigure that 2.4 million or whatever it was.

[00:40:21] Speaker 01:
You argue that it's premature, so let me just get you to confirm that you clearly accept that if you prevail and this case goes back, they will not have forfeited their argument

[00:40:33] Speaker 01:
with regard to the settlement.

[00:40:35] Speaker 03:
My position is that Judge Leto did reserve the fees questioned under the URA.

[00:40:40] Speaker 03:
I don't accept, Chief Judge, the assumption that they have a strong argument.

[00:40:45] Speaker 03:
There's no integration clause in the settlement agreement.

[00:40:49] Speaker 03:
The settlement agreement fees go to claims to be incurred for the claims, not to objections.

[00:40:56] Speaker 04:
But if Judge Leto decides in your favor and ups the award, the government can appeal at that point.

[00:41:01] Speaker 03:
I'm not going to lawyer for the government.

[00:41:03] Speaker 03:
The government will make the arguments that it makes, and I will take whatever steps.

[00:41:07] Speaker 04:
Well, but you're the argument on the other side.

[00:41:09] Speaker 04:
I don't want to go back and have you say, no, the government has waived its right.

[00:41:13] Speaker 03:
Judge Hughes, I will accept for hypothetical purposes that if the government litigates correctly, that there would be fewer things for us to argue in terms of waiver.

[00:41:26] Speaker 03:
That's as far as I'm prepared to go.

[00:41:28] Speaker 03:
Because at the fairness hearing, and you can read the transcript, there were five points that I believe the government had waived by virtue of its litigation of the case up until the second fairness hearing.

[00:41:39] Speaker 03:
So I don't mean to fight your hypothetical, Judge Hughes, but I accept when the other side litigates correctly that there will not be waiver issues if done appropriately.

[00:41:52] Speaker 03:
Thank you.

[00:41:52] Speaker 05:
Thank you.

[00:42:06] Speaker 05:
Mr. Scott testifies at 98.33, and he specifically refers to the contingent fee agreements with class counsel and how he negotiated on behalf of his clients with respect to those contingent fee agreements.

[00:42:18] Speaker 05:
And then Mr. Frederick speaks at 98.45 to 98.46.

[00:42:24] Speaker 05:
I suspect there are other references, and that's a pretty quick look, but if you look in that last 30 or so pages, you'll see that there are.

[00:42:31] Speaker 05:
Thank you, as usual.

[00:42:32] Speaker 05:
That's very helpful.

[00:42:33] Speaker 05:
Thank you, Your Honor.

[00:42:35] Speaker 01:
Okay, we'll restore three minutes if you need it.

[00:42:37] Speaker 02:
Thank you, Your Honor.

[00:42:39] Speaker 02:
The standard of review is obviously important.

[00:42:41] Speaker 02:
I've cited the Gilbert case.

[00:42:43] Speaker 02:
I would also

[00:42:45] Speaker 02:
direct the Court's attention to another of this Court's cases, Janna, Inc., the United States, 936F2 at 1271.

[00:42:56] Speaker 02:
In our brief, we also cited the Ninth Circuit's decision in Brown and Bain, applying de novo review to precise issue of abandonment, as did the Eighth Circuit in the Medford Olson Honey case.

[00:43:14] Speaker 02:
Council talked about the government's response between August and November.

[00:43:20] Speaker 02:
The government's response, and this is at page 5116, response to the council's motion to set the trial, we agreed that the settlement was a nullity.

[00:43:33] Speaker 02:
And we urged discovery and a briefing schedule on cross motions for summary judgment, 5119.

[00:43:42] Speaker 02:
Then, as I've already discussed, we filed five motions for partial summary judgment, page 5547 and following.

[00:43:52] Speaker 02:
That is a positive and unequivocal response indicating that we did not want to settle the case, that we wanted to litigate it to final judgment on the merits.

[00:44:06] Speaker 02:
Of course we did, Your Honor.

[00:44:11] Speaker 02:
Because the law and the facts had changed.

[00:44:16] Speaker 02:
About a third of the plaintiffs were adjudicated not even to own any of the property for which they sought compensation for a taking of property.

[00:44:26] Speaker 06:
If this had all been resolved, would you have been in there with a 60B?

[00:44:31] Speaker 02:
Perhaps, Your Honor, I don't know.

[00:44:36] Speaker 02:
So our point is not that there's a single magical phrase in the record to which I can point that where the plaintiffs say we repudiate the contract, the point is over the course of literally months, and our best period is August, I'm sorry, November, December, January, February, and March 2016 and 2017.

[00:45:01] Speaker 02:
plaintiffs litigated the case.

[00:45:04] Speaker 02:
Plaintiffs filed two motions for partial summary judgment.

[00:45:07] Speaker 02:
The Woodleys filed a partial motion for summary judgment.

[00:45:12] Speaker 02:
Your Honor, but it was on the merits and in no sense, and this is my final point and I'll sit down, in no, none of those filings did plaintiffs say this is all subject to settlement, which we hope to enforce at some point.

[00:45:29] Speaker 02:
It was only after the

[00:45:31] Speaker 02:
it went bad for them at a hearing on March 31st that they decided, hey, we better go back to the settlement that we had already said no longer exists.

[00:45:43] Speaker 02:
And with that, I would ask this Court to reverse the judgment of the Court of Federal Affairs.

[00:45:47] Speaker 01:
Thank you.

[00:45:47] Speaker 01:
We thank all sides, and the case is submitted.

[00:45:50] Speaker 01:
Good argument.

[00:45:52] Speaker 01:
Thank you.