[00:00:00] Speaker 03:
Our next case is the National Veterans Legal Services Program at AL versus the United States versus Eric Allen Isaacson, 2024, 1757.

[00:00:11] Speaker 03:
Mr. Isaacson, when you are ready.

[00:00:17] Speaker 07:
Good morning.

[00:00:17] Speaker 07:
May it please the court.

[00:00:18] Speaker 07:
I'm Eric Allen Isaacson.

[00:00:20] Speaker 07:
the class member objector and appellant in this case, which raises several, I think, fairly important issues.

[00:00:29] Speaker 07:
The first one to the district court's jurisdiction under the Little Tucker Act, given the fact that the claims of some of the class members in this case would far exceed $10,000.

[00:00:42] Speaker 07:
I think it exceeds the Tucker Act jurisdiction.

[00:00:46] Speaker 03:
None of the individual claims does.

[00:00:50] Speaker 07:
Well, individual class members have claims that greatly exceed that.

[00:00:55] Speaker 07:
If you want to talk about the individual claims, they contend that each download was a claim, an exaction claim.

[00:01:02] Speaker 06:
Well, it is.

[00:01:04] Speaker 06:
This is an illegal exaction claim theory.

[00:01:08] Speaker 06:
And every single time, the government extracts money illegally.

[00:01:12] Speaker 06:
it's a separate claim.

[00:01:14] Speaker 07:
Well, the government doesn't extract money when people download from a basic.

[00:01:18] Speaker 06:
I don't want to debate the nature of the claims.

[00:01:21] Speaker 06:
The fact is it's an illegal exemption claim.

[00:01:25] Speaker 06:
And what they're saying, what they said, what their basis for jurisdiction was, was this was an illegal exemption, that the government extracted more money than they were entitled to under the statute.

[00:01:37] Speaker 06:
And it's every single time that happens.

[00:01:41] Speaker 06:
some kind of damages claim where the government does something once and then has a flow of damages from it, this would come up in a statute of limitations context that every single one of these would start the statute of limitations running anew.

[00:01:56] Speaker 07:
Well, PACER waives the exactions for the first $15 double to $30 for each quarter.

[00:02:02] Speaker 06:
You're not doing yourself any benefits by getting into the details of this.

[00:02:06] Speaker 07:
I would like then to move to the issue of attorney's fees.

[00:02:11] Speaker 07:
where this court in Health Republic indicates that the district court should act as fiduciary for the class and should not start with the request the class representatives are making, the class counselor making.

[00:02:25] Speaker 06:
So I get why you're arguing on this, but I don't think that Health Republic goes as far as you think it goes.

[00:02:32] Speaker 06:
It seems to me that what the point is is you shouldn't start with the class

[00:02:37] Speaker 06:
request as a per se reasonable request, but that you have to do an independent evaluation of it.

[00:02:43] Speaker 06:
I think it seems like you're arguing that the district court just has to get all the records and go through the billing and what a reasonable rating come up with its own fee.

[00:02:51] Speaker 06:
And if that's what you're arguing, that seems to me to be impractical and not required by anything in Rule 23.

[00:02:57] Speaker 06:
Well, if you're arguing that as a matter of the district court's decision, it didn't do an independent analysis, then you can argue that.

[00:03:06] Speaker 06:
But it seems to me that the district court had very thorough reasoned opinion about why the fees thought here were reasonable.

[00:03:15] Speaker 06:
It looked at the percentage basis.

[00:03:17] Speaker 06:
It did the cross check on the lodestar basis.

[00:03:20] Speaker 06:
It looked at the ranges in these kind of classes and all the different

[00:03:24] Speaker 06:
ranges in all these cases and it found that the request was reasonable.

[00:03:29] Speaker 06:
That seems to me to be an independent review of the attorney's fees request as required by Health Republic and other presidents.

[00:03:38] Speaker 07:
Well, I think the first thing the court needs to do is or one of the first things the court needs to do is make a choice between

[00:03:44] Speaker 07:
a lodestar fee, and a percent of fund fee.

[00:03:47] Speaker 07:
And the first thing the court's going to look at is, what's the amount of the claimed lodestar?

[00:03:52] Speaker 00:
Are you saying we should only do a lodestar?

[00:03:54] Speaker 00:
Because that's actually how your brief reads.

[00:03:56] Speaker 07:
I do not say that you should only do a lodestar.

[00:03:59] Speaker 07:
For example, it might be a case where if you look at the lodestar, it amounts to 90% of the common fund.

[00:04:06] Speaker 07:
If the lodestar is amounting to 90% of the common fund, it would be unreasonable to give a lodestar award, more reasonable to go to a percentage award, and cap the fee at 20% or 30%.

[00:04:19] Speaker 07:
In this case, if you look at the lodestar, you see that they have very high rates.

[00:04:25] Speaker 07:
They're very good attorneys.

[00:04:27] Speaker 07:
They have very high rates, far above the matrix.

[00:04:30] Speaker 00:
But the district court found that to be a reasonable rate in the jurisdiction.

[00:04:34] Speaker 07:
Well, if the district court is going to accept their rates as very high and is reasonable, still the fee that they're asking for is about four times their load start.

[00:04:48] Speaker 00:
within the range that is allowed by the court, the lower court?

[00:04:52] Speaker 07:
That's a range that can sometimes be allowed, but you've got to have very good reasons for allowing larger management of the loan star.

[00:05:00] Speaker 06:
The fee-shifting case is for game reasons.

[00:05:03] Speaker 06:
And also, it looked at the percentage basis and said, this is well within the percentage that we award when we look at percentage basis for common fund, too.

[00:05:12] Speaker 06:
So both checks were within range as courts gave.

[00:05:16] Speaker 06:
And when the court said, yes, this is up towards the upward range on low star, it said, this is a very complicated case.

[00:05:23] Speaker 06:
It is a very complicated class action.

[00:05:26] Speaker 06:
They're very skilled counsel at class action.

[00:05:29] Speaker 06:
And looking at the two different ways of calculating it, it found that it was a reasonable basis.

[00:05:35] Speaker 06:
I don't understand.

[00:05:37] Speaker 06:
Are you asking there's a legal error there somewhere?

[00:05:39] Speaker 06:
Because if you're asking us to overturn that for abuse of discretion, I don't even think it's anywhere close to an abuse of discretion.

[00:05:45] Speaker 07:
I think it's a questionable approach.

[00:05:47] Speaker 07:
I think that the Supreme Court in Purdue says that Lodestar adequately compensates class action counsel

[00:05:54] Speaker 07:
in the typical case.

[00:05:55] Speaker 07:
If you are acting as a fiduciary for the client, it is a fee-shifting case.

[00:06:01] Speaker 06:
Well, there are vastly different reasons for fee-shifting, where the defendant pays in common fund, which is the plaintiffs paying their own attorneys.

[00:06:11] Speaker 06:
And so I would never read that case on fee-shifting to apply to a common fund situation.

[00:06:18] Speaker 07:
Well, in a fee-shifting case, you're right.

[00:06:22] Speaker 07:
Assumption is that the defendant's been found liable.

[00:06:24] Speaker 07:
The defendant's a wrongdoer who has to pay the plaintiff's fees as a consequence.

[00:06:29] Speaker 07:
In a common fund case, class members haven't done anything wrong.

[00:06:33] Speaker 06:
If the compensation- And they've engaged attorneys to represent them to gain a settlement.

[00:06:40] Speaker 06:
And if they agree to that settlement and a certain range of attorney fees, the attorneys are entitled to it as long as it's reasonable under an independent evaluation.

[00:06:49] Speaker 07:
Well, I think an independent evaluation starts by asking, what's reasonable compensation?

[00:06:55] Speaker 07:
And reasonable compensation starts with the load star ordinarily.

[00:06:59] Speaker 07:
And after you look at the load star, you can think about percentage fee awards.

[00:07:03] Speaker 00:
But the law doesn't require that it start with the load star.

[00:07:06] Speaker 00:
Under Rule 23, you can start with the percentage of the common fund and do a cross-check.

[00:07:13] Speaker 00:
It wouldn't be called a cross-check if it had to be the first check.

[00:07:18] Speaker 07:
Well, you can start with the percentage of the finding you do across check and see that it is four times the load start.

[00:07:24] Speaker 07:
That's four times what would be sufficient to compensate class counsel in a fee-shifting case if they'd taken it to trial and won the case.

[00:07:34] Speaker 07:
Here they're settling the case for a fraction of the damages that are claimed.

[00:07:37] Speaker 07:
They're not getting a full win.

[00:07:39] Speaker 07:
And by settling it, they're not exposed to the risk of going all the way to trial.

[00:07:45] Speaker 07:
It doesn't make sense for lawyers to get four times the amount they get for winning a case because they've settled it for a fraction of the damages.

[00:07:54] Speaker 00:
I don't recall a case that said that fees should be reduced because it came in the context of a settlement versus a verdict.

[00:08:01] Speaker 00:
I don't know that case.

[00:08:04] Speaker 00:
Can you cite that to me?

[00:08:06] Speaker 07:
I don't have a case site for you off the top of my head, Your Honor.

[00:08:09] Speaker 07:
But I do think that there are substantially greater risks than going to trial.

[00:08:13] Speaker 07:
And somebody who takes a case to trial and wins has a stronger entitlement to a very generous fee than somebody who settles the case.

[00:08:23] Speaker 06:
This sounds like disagreement with the district court's discretionary decision.

[00:08:28] Speaker 06:
This does not sound like legal heir to me.

[00:08:30] Speaker 07:
Well, I think it's a question of the proper approach to the fee award.

[00:08:35] Speaker 06:
I don't understand what you mean by that.

[00:08:36] Speaker 06:
Do you mean that as a matter of law, they have to start with lodestar?

[00:08:41] Speaker 06:
If that's the case, you're wrong.

[00:08:43] Speaker 06:
You lose on the law, in my view.

[00:08:45] Speaker 06:
If you have some other view of what the law is, quit saying general the approach and tell me what you think legally the district court is required to do.

[00:08:55] Speaker 07:
I think legally this court is required to act as a fiduciary.

[00:08:59] Speaker 07:
It's supposed to give a moderate fee.

[00:09:02] Speaker 00:
A reasonable fee, not a moderate fee.

[00:09:07] Speaker 07:
Well, the Supreme Court's common fund precedent, seminal common fund precedent, Reno, trustees versus Reno, says it has to be done with moderation and a jealous regard for the interests of the class.

[00:09:20] Speaker 05:
OK, but none of that is legal error.

[00:09:23] Speaker 05:
The district court in this case gave a very thorough, exhaustive analysis that meets all of those requirements.

[00:09:39] Speaker 07:
It's at the very, very high end of the awards.

[00:09:43] Speaker 06:
We know it's at the very high end.

[00:09:45] Speaker 06:
The district court gave reasons for why he thought, in his discretion, it was appropriate.

[00:09:52] Speaker 06:
If there's an error along that, you can tell me.

[00:09:54] Speaker 06:
But if you're asking me to say that's an abuse of discretion, you're not going to win with me.

[00:10:00] Speaker 06:
And I don't understand your legal argument when you say it's the general approach, because he followed the general approach.

[00:10:08] Speaker 07:
I think he started with class council's free request and asked, is this something that can be defended as reasonable?

[00:10:15] Speaker 07:
And I think Health Republic says you don't do that, quite frankly, Your Honor.

[00:10:23] Speaker 07:
And my other problem with the settlement is a question of the pro rata distribution, which doesn't take account of the fact

[00:10:32] Speaker 07:
that the largest-paying class members got paid.

[00:10:36] Speaker 06:
Do you want to talk about the incentive awards?

[00:10:38] Speaker 06:
Because that's the issue you seem to be teeing up for Supreme Court review.

[00:10:42] Speaker 06:
And it seems to me that the Second Circuit and the Ninth Circuit and the other circuits that have looked at this have the better of the arguments.

[00:10:51] Speaker 06:
But that pro rata stuff, you're not going to get anywhere with me, that the clients paid their pacer fees.

[00:10:58] Speaker 06:
I don't understand that at all.

[00:10:59] Speaker 07:
And classes.

[00:11:01] Speaker 07:
And the clients in classes are not going to get it back.

[00:11:05] Speaker 06:
And the fact is- That's up to the clients and their attorneys.

[00:11:10] Speaker 06:
That's not up to us.

[00:11:11] Speaker 07:
Well, I think it's a question of whether the distribution is equitable.

[00:11:16] Speaker 07:
And with respect to incentive awards, the Supreme Court's opinions in Grino and- Right, the 1800s cases.

[00:11:25] Speaker 06:
I mean, I understand that, you know,

[00:11:30] Speaker 06:
The 11th Circuit bought off this argument, although four judges descended from the denial.

[00:11:34] Speaker 06:
To me, old cases from a creditor situation seem to have very little relevance to modern class act jurisprudence.

[00:11:45] Speaker 06:
And even the Supreme Court has at least nodded to incentive awards.

[00:11:50] Speaker 06:
So is it just those two old Supreme Court cases and the 11th Circuit case?

[00:11:56] Speaker 06:
that you have?

[00:11:58] Speaker 06:
Is there anything else?

[00:11:59] Speaker 07:
I have those two Supreme Court cases and the 11th Circuit case.

[00:12:03] Speaker 07:
And you have the Second Circuit opinion in fights wholesale, where a panel of the Second Circuit writes an opinion that basically seems to say, we think the 11th Circuit is probably right, but we think we're bound by pre-existing Second Circuit authority if we don't go in bank.

[00:12:18] Speaker 07:
And then in

[00:12:22] Speaker 07:
the concurring opinion in that case, which is written by the same judge.

[00:12:25] Speaker 06:
So let me ask you this.

[00:12:26] Speaker 06:
If we don't think those old Supreme Court cases are binding because they don't involve Rule 23, they involve creditors, then under Rule 23, without regard to those Supreme Court cases, our incentive awards allowed.

[00:12:41] Speaker 06:
Well, the fact that they're not reasonable in this inquiry, right?

[00:12:45] Speaker 07:
Could you restate the question?

[00:12:46] Speaker 06:
I'm just saying ignore those Supreme Court cases.

[00:12:49] Speaker 06:
Just look at Rule 23.

[00:12:53] Speaker 06:
Hypothetically, are incentive awards allowed under Rule 23?

[00:12:59] Speaker 07:
Well, Rule 23 says nothing to authorize incentive awards, Your Honor.

[00:13:04] Speaker 07:
Does it say anything to prohibit them?

[00:13:06] Speaker 07:
It doesn't specifically prohibit them.

[00:13:10] Speaker 06:
So isn't the touchstone of a settlement just whether it's equitable and reasonable?

[00:13:15] Speaker 07:
It is generally understood that when you are acting as a class representative, you give up

[00:13:22] Speaker 07:
the opportunity to ask for special rewards that the rest of the class isn't getting.

[00:13:28] Speaker 07:
I see him going into my rebuttal time, Your Honor.

[00:13:32] Speaker 03:
We will give you your three minutes back.

[00:13:34] Speaker 02:
Thank you, Your Honor.

[00:13:36] Speaker 03:
Mr. Gupta?

[00:13:38] Speaker 02:
Thank you, and may it please the Court.

[00:13:40] Speaker 02:
Deepak Gupta for the plaintiff's appellees.

[00:13:42] Speaker 02:
I will be sharing our time with Ms.

[00:13:44] Speaker 02:
Daniel from the Department of Justice.

[00:13:48] Speaker 02:
This appeal concerns the district court's careful approval of a settlement resolving a decades-long historic class action against the federal judiciary.

[00:13:57] Speaker 02:
And before I jump into the legal issues that Mr. Isakson has presented, I just want to emphasize that under this settlement, the vast majority of PACER users will be refunded in full 100 cents on the dollar for past charges.

[00:14:12] Speaker 02:
The settlement resolves the claims of what may well be the most litigious group of people and entities ever assembled in a single case.

[00:14:20] Speaker 02:
And yet, out of over a half million class members, a lone objector now appeals.

[00:14:26] Speaker 02:
Mr. Isaacson's principal contention in his briefing was that the settlement, not that the settlement was unfair, although he does argue that.

[00:14:35] Speaker 02:
It's instead his chief argument was that the DOJ, the AO, plaintiff's counsel,

[00:14:42] Speaker 02:
And the two district judges who oversaw this case were all laboring under a mistaken understanding of the jurisdiction of the district court for the past decade of litigation.

[00:14:52] Speaker 02:
And so in his view, the entire settlement must be unwound, and everyone has to go back to square one.

[00:14:57] Speaker 06:
I'm not going to belabor the arguments there, because Judge Hughes, I think you have much interest in that, unless my colleagues do.

[00:15:06] Speaker 06:
That would just blow up the settlement.

[00:15:07] Speaker 06:
To the extent there's any assumption that the government would just pay the amount and it would just go to the smaller people is ridiculous.

[00:15:16] Speaker 06:
It would blow it up.

[00:15:17] Speaker 06:
And frankly, I don't know what would happen.

[00:15:20] Speaker 06:
The big people would just go to the court of federal claims and sue.

[00:15:23] Speaker 06:
And there would be a different settlement.

[00:15:24] Speaker 06:
And then a lot of these small time papers would probably just be left out.

[00:15:29] Speaker 06:
But in any event, I guess you can do this in any way you want.

[00:15:34] Speaker 06:
But I have two main points that I'd like to hear from you on.

[00:15:39] Speaker 06:
And one is our

[00:15:41] Speaker 06:
President the health whatever president and whether the district work the way it looked at the attorney's fees complied with our precedent and to this

[00:15:52] Speaker 06:
incentive.

[00:15:54] Speaker 06:
The incentive stuff seems to be, I mean, it's clear you understand, too, that it's being teed up for the Supreme Court.

[00:16:01] Speaker 06:
The Supreme Court has denied cert on this, I think, at least a couple of times.

[00:16:04] Speaker 02:
It has denied cert on it, but Mr. Isaacson has sought social RRI.

[00:16:08] Speaker 06:
Maybe at some point it will have to address it.

[00:16:10] Speaker 06:
But those are the two things that I'm most concerned about.

[00:16:13] Speaker 06:
And do it with the overall approach to the attorney's fees.

[00:16:18] Speaker 06:
I'm not pulling my punches.

[00:16:20] Speaker 06:
I let the district court judge did a very thorough independent analysis of the attorney's fees.

[00:16:25] Speaker 06:
But it seems like Mr. Isaacson has some dispute that it's just improper altogether to start with the attorney's fees request from class counsel, and then do the percentage and Lodestar projects.

[00:16:40] Speaker 02:
Right.

[00:16:40] Speaker 02:
I do think Mr. Isaacson is misreading the Health Republic case.

[00:16:44] Speaker 02:
The Health Republic decision does emphasize that what the district court is not supposed to do, and I think what happened there, is to simply defer to class counsel's request and to treat it as almost a fait accompli unless there's some error.

[00:16:59] Speaker 02:
Instead, I think, and this is what Judge Friedman emphasized, the district court is supposed to be a fiduciary for the absent class members, and really has an important role to do an independent analysis because you don't have the ordinary adversarial scenario.

[00:17:13] Speaker 02:
And that's why we have class action objections.

[00:17:16] Speaker 02:
That's why we have Rule 23E.

[00:17:17] Speaker 02:
That's the architecture.

[00:17:18] Speaker 02:
of this whole enterprise.

[00:17:20] Speaker 02:
And I think if I were teaching law students about how to do this, or judges, I think this district court decision is really a model of the kind of analysis that a district judge should engage in.

[00:17:31] Speaker 02:
It is very, very careful.

[00:17:33] Speaker 02:
not to simply defer to either of the parties, but you do have an unusual situation here in which the Department of Justice is representing the defendants, and the Department of Justice behaved, I think, differently from the way private counsel representing a corporate defendant might behave, where

[00:17:51] Speaker 02:
All they care about is how much their client will be paying.

[00:17:54] Speaker 02:
And so they don't really care as much about the amount that goes to attorney's fees.

[00:17:58] Speaker 02:
Whereas here, as part of the settlement architecture, the Department of Justice negotiated for a percentage cap.

[00:18:04] Speaker 02:
So even before it came to the district judge,

[00:18:07] Speaker 02:
you already had the DOJ playing that role.

[00:18:09] Speaker 02:
And then it played that role furthermore in the settlement approval process.

[00:18:14] Speaker 02:
But even if you set that all aside, I think it's hard to read Judge Friedman's opinion and not come away with the conclusion that this is a district judge who took the responsibility to act as a fiduciary very seriously.

[00:18:28] Speaker 02:
and didn't even rely on our expert reports to come to the conclusion about the comparators.

[00:18:35] Speaker 02:
He did his own analysis and found relevant comparators.

[00:18:38] Speaker 02:
And so I think that's why that set of arguments fails.

[00:18:42] Speaker 02:
I do want to jump to the incentive award question, because I think it's important.

[00:18:46] Speaker 02:
I think you're right, Judge Hughes, that the elephant in the room here is that the objector is trying to tee this up for Supreme Court review.

[00:18:53] Speaker 02:
And so I would just urge this court to do what Judge Friedman did.

[00:18:57] Speaker 02:
which is to point out that even under the line of cases that Mr. Isaacson is relying on, that is, even if you were under the 11th Circuit's approach or the 19th century cases, even those cases recognized that a plaintiff suing on behalf of the class, that it's appropriate for there to be reimbursement for the out-of-pocket expenses or for the attorney expenses.

[00:19:23] Speaker 02:
And that's what happened here.

[00:19:25] Speaker 02:
nonprofit associations that served for a decade as the named plaintiffs.

[00:19:30] Speaker 02:
And they incurred expenses.

[00:19:32] Speaker 02:
They had attorneys who were, they could have hired outside counsel, I suppose, to protect their interests.

[00:19:37] Speaker 02:
But they did things more efficiently.

[00:19:39] Speaker 02:
They did it in-house.

[00:19:41] Speaker 02:
And all we're saying is, it's a reasonable measure of these incentive awards.

[00:19:45] Speaker 02:
It's a bargain, frankly, for the class.

[00:19:48] Speaker 06:
I mean, it has to be a severe bargain, right?

[00:19:50] Speaker 06:
The incentive award is what?

[00:19:51] Speaker 02:
They're $10,000.

[00:19:52] Speaker 06:
So it's a- I mean, MBLSP clearly spent more well in excess of $10,000 of its own attorney time on this case.

[00:20:01] Speaker 02:
Correct.

[00:20:01] Speaker 02:
Yes.

[00:20:02] Speaker 06:
And whoever the other ones were, too.

[00:20:05] Speaker 02:
Correct.

[00:20:05] Speaker 02:
And so what I'm saying is, Judge Hughes, I agree with all the things you were saying.

[00:20:09] Speaker 02:
I do think the vast majority of the circuits have got this right.

[00:20:13] Speaker 06:
You don't want us to decide that issue?

[00:20:13] Speaker 02:
I think maybe this is not the right case to take a stand on this big issue because of the facts.

[00:20:19] Speaker 00:
I'm a little concerned about going in that direction.

[00:20:22] Speaker 00:
For a different issue, I'm concerned that we create a mini industry of class representatives hiring counsel to get reimbursed.

[00:20:31] Speaker 00:
So this is not the typical class action case.

[00:20:34] Speaker 00:
The typical class action case is a wage and hour case, where an employee, or usually an ex-employee, has stepped up.

[00:20:42] Speaker 00:
Or a false advertising case where the bag of peas didn't have, wasn't all natural.

[00:20:49] Speaker 00:
And so I fear that if we go in this direction, the consequences are actually far greater than the concern.

[00:20:57] Speaker 00:
I just don't understand why.

[00:20:59] Speaker 00:
Are you worried that Rule 23 isn't sturdy enough to support this?

[00:21:03] Speaker 00:
No, no.

[00:21:03] Speaker 02:
I think it is.

[00:21:03] Speaker 02:
I just think, look, frankly, that this class action has been held up for a couple of years now because of this appeal.

[00:21:10] Speaker 02:
If it goes to the Supreme Court, if there's a petition, it'll be held up longer.

[00:21:14] Speaker 02:
And just to address your concern, Judge Friedman, as you're running out of time, I think in that kind of mine run of cases,

[00:21:22] Speaker 02:
It's unlikely that an individual would have any need for counsel.

[00:21:26] Speaker 02:
Where this comes up is in antitrust litigation.

[00:21:29] Speaker 02:
We've cited examples where you do have entities that have their own counsel.

[00:21:33] Speaker 02:
And so the way to compensate them is in this manner.

[00:21:37] Speaker 02:
Thank you.

[00:21:41] Speaker 03:
Thank you, Mr. Koepter.

[00:21:44] Speaker 03:
This is Daniel.

[00:21:48] Speaker 01:
May it please the court, Alexis Daniel on behalf of the United States.

[00:21:51] Speaker 06:
Let me jump right in.

[00:21:52] Speaker 01:
Yes.

[00:21:52] Speaker 06:
Since you're from the Justice Department, and I want to hear your all's view on this jurisdictional issue.

[00:22:01] Speaker 06:
I mean, having been there myself, I can see some appeal.

[00:22:04] Speaker 06:
If I was representing the Justice Department to say that this doesn't comply with the Little Tucker Act.

[00:22:10] Speaker 06:
So do you agree that because of the nature of these illegal exaction claims that everyone is a separate claim and it's under $10,000 and so there was proper jurisdiction in the district court?

[00:22:21] Speaker 01:
That's correct, Your Honor.

[00:22:22] Speaker 01:
The United States does agree with that assessment here based on the specific claims at issue.

[00:22:27] Speaker 01:
We never contested jurisdictions because we believe there was correct little Tucker Act jurisdiction.

[00:22:31] Speaker 01:
And when questioned by the district court, both that class certification and the fairness hearing, we agreed that each PACER transaction gave rise to an individual claim and there is no claim access.

[00:22:41] Speaker 03:
So this case was here before too.

[00:22:44] Speaker 01:
Yeah, that's correct, Your Honor.

[00:22:45] Speaker 01:
And this specific jurisdictional issue wasn't at play, but the court did seem to understand the nature of plaintiffs.

[00:22:50] Speaker 06:
I guess my question is why

[00:22:53] Speaker 06:
wasn't it the policy setting that allowed for reimbursements of costs beyond what the PACER fee statute allowed?

[00:23:04] Speaker 06:
Why isn't that a one time wrong and that it's just damages flowing from that?

[00:23:12] Speaker 01:
Because there is the fee schedule, but each time that transaction occurs is what creates the relationship between the government and each PACER user.

[00:23:20] Speaker 01:
So each time they're going in,

[00:23:21] Speaker 01:
selecting a download, they're prompted to answer, do you agree to incur these charges?

[00:23:26] Speaker 01:
And then they must agree to that before they incur it.

[00:23:28] Speaker 01:
And each download itself is distinct.

[00:23:30] Speaker 01:
It could be for different purposes, different documents, different clients if it's an attorney.

[00:23:35] Speaker 01:
So in our view, it really is distinct to that individual claim and very unique to this case.

[00:23:44] Speaker 06:
I'm glad you said that, but I make sure that you all know that we're going to hold you to that.

[00:23:47] Speaker 06:
In the next illegal transaction case, too, if you try to come in and get it kicked to the court of federal claims by aggregating them.

[00:23:54] Speaker 01:
Yes, we understand that, Your Honor.

[00:23:56] Speaker 01:
And I think our view here is based on this specific transaction at issue on these facts and circumstances and under Alaska Airlines.

[00:24:04] Speaker 01:
But this is the correct view in this case, which is why jurisdiction was never contested by the United States.

[00:24:11] Speaker 01:
I can briefly touch on attorney's fees and service awards because I can see that the court is interested in that.

[00:24:16] Speaker 01:
The United States does fully agree with the position of class counsel that this is a reasonable attorney fee award here.

[00:24:22] Speaker 01:
The district court did thoughtfully apply this court's precedent.

[00:24:26] Speaker 01:
It had discretion to choose percentage or load star.

[00:24:29] Speaker 01:
It went with the percentage route, which is widely accepted.

[00:24:32] Speaker 01:
At the United States prompting, it conducted a loan star cross-check.

[00:24:35] Speaker 01:
they were going to review that loan star cross check to determine it was a reasonable range and still then thoughtfully reviewed it to determine that it was reasonable against comparative cases, the risks in this case, and class counsel.

[00:24:47] Speaker 06:
And is it the government's position that Rule 23 allows incentive awards?

[00:24:52] Speaker 01:
Yes, Your Honor.

[00:24:53] Speaker 01:
We do believe they allow incentive awards.

[00:24:56] Speaker 06:
And to my co-appellee's point- So if this goes up, we're not going to get a view from the SG that incentive awards aren't allowed or it's

[00:25:05] Speaker 06:
your view at your level, not at the higher level.

[00:25:09] Speaker 01:
I believe it is our view that the service awards are permissible in this case, and particularly reasonable in this case.

[00:25:16] Speaker 01:
That's a very careful answer.

[00:25:19] Speaker 01:
I have to admit, I didn't check with the SG's, but... That's fine.

[00:25:23] Speaker 06:
I'm not going to hold you to what the SG says or not.

[00:25:26] Speaker 06:
I'm just curious if this does go up, if the SG's going to take a different view on this.

[00:25:31] Speaker 01:
I have no reason to believe that the SG would take a different view at this time.

[00:25:35] Speaker 01:
The Assign of Wards here were reasonable.

[00:25:38] Speaker 01:
Rule 23 does account for treating class members equitably.

[00:25:43] Speaker 01:
Here, the named class members did contribute significant time and expenses.

[00:25:48] Speaker 01:
Whether they were attorneys or not, I don't think there's any dispute that they went above and beyond in their contributions, making them particularly reasonable here to award those service awards.

[00:25:57] Speaker 00:
Can I circle back to the jurisdictional issue?

[00:25:59] Speaker 00:
Yes, Your Honor.

[00:26:01] Speaker 00:
I was surprised that Mr. Isaacson in some way sandbagged the appellees on the Keene case.

[00:26:08] Speaker 00:
And I wondered if you wanted to make any comments.

[00:26:11] Speaker 00:
about section 1500 and the definition of claim, if he argues in the Keene case.

[00:26:16] Speaker 01:
Yes, I can address that.

[00:26:18] Speaker 01:
Our position would be that Keene is just totally distinguishable here from dealing with the question of whether a claimant is bringing the same claim in one court versus a different court versus this case, where we need to look at the exact nature of the transactions to determine there's a claim.

[00:26:32] Speaker 01:
I think the line of authority is actually addressing the overcharges cases is most attractive here.

[00:26:37] Speaker 01:
Thank you.

[00:26:39] Speaker 01:
If there are no further questions, the United States respectfully requests that this court affirm the ruling of the district court.

[00:26:45] Speaker 03:
Thank you.

[00:26:45] Speaker 03:
Thank you, counsel.

[00:26:46] Speaker 03:
Mr. Isaacson, we'll give you three minutes if you need it.

[00:26:49] Speaker 07:
Thank you, Your Honor.

[00:27:00] Speaker 07:
First, I'd like to say that I didn't try to sandbag anybody with the King case.

[00:27:05] Speaker 07:
The King case is a decision that I found when I was doing research for my reply brief.

[00:27:09] Speaker 07:
It was not a case that I was aware of when I was writing my opening brief, Your Honor.

[00:27:13] Speaker 07:
Had I been aware of it as a case, it would be important to my argument on appeal.

[00:27:19] Speaker 07:
At the point I was writing the opening brief, I would have included it there.

[00:27:22] Speaker 07:
I think that you made a very important point with respect to the danger of having big incentive awards based on the fact that somebody hired their own extra counsel to advise them internally.

[00:27:40] Speaker 07:
I think that's a legitimate concern and I think that this is a case.

[00:27:44] Speaker 04:
Why can't that be handled under the normal fairness

[00:27:48] Speaker 04:
an equitable review you have to do under Rule 23, as opposed to just outright forbidding them?

[00:27:55] Speaker 07:
Well, I think that they're forbidden by Supreme Court President, Your Honor.

[00:28:00] Speaker 07:
But I also think that it matters that the class notice in this case indicated that it would be asking for attorney's fees in a given amount and for incentive awards in a given amount.

[00:28:12] Speaker 07:
And then they come into court and say, oh, well, the incentive rewards are really justifiable as attorney's fees.

[00:28:18] Speaker 07:
Now, if somebody got sandbagged, it's me and other class members when they come in with an attorney's fees argument for the incentive rewards.

[00:28:27] Speaker 07:
And unless you have some questions, I will submit the case.

[00:28:32] Speaker 03:
Thank you to both counsel.

[00:28:34] Speaker 03:
The case is submitted.

[00:28:35] Speaker 03:
Thank you.