[00:00:01] Speaker 00:
Case number 16-5310 at L. Mary E. Collins, individually and on behalf of all other assembly situated at L appellants, for suspension, benefit, guarantee, corporation at L. Mr. Eights for the appellants, Ms.

[00:00:16] Speaker 00:
Hagan for the appellees.

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Mr. rates.

[00:00:46] Speaker 05:
Good morning.

[00:00:47] Speaker 02:
Good morning.

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May it please the court.

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John eights on behalf of the appellant.

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I've asked for five minutes to be reserved in rebuttal.

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We're here this morning because the district court below denied a motion for attorney's fees filed by my clients related to a long running case related to a risk of benefits.

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underlying the district courts and animating the district courts decision as well as PBG sees provision position in this case is that the attorneys have simply earned enough in this case.

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We believe the district court heard what they had written underlying it was that they've earned what they agreed to in the case as opposed to earned enough.

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Well, that gets to the two ways, your honor, that we believe the district court heard in its decision number one.

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I'm sorry.

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It's not a very accurate statement to say that what underlined it was the thought that their attorneys had earned enough and later equating enough with a perception of what the agreement was.

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Well, it animated his decision that we've earned a lot of money in the case and nothing can, we can't deny that, Your Honor.

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But in interpreting the agreement, the district court heard, because it did not look at it as a whole,

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And we think the easiest way to dispose of the case is under the doctrine of prevention with the district court clearly did not apply the law appropriately and applied the wrong evidentiary standard for us to prove the doctrine.

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So your theory is a claims made basis.

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That was why the wrap up agreement contained a condition

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Yes.

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Such that the prevention doctrine would apply?

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Our position is that the phrasing of the attorney's fees provision, that the attorneys, in effect, get paid when the benefits are paid to the claimants, it is a claims made policy.

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Mostly in class actions, the attorneys are asking for a percentage of the common fund, the total fund.

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We didn't do that here.

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We tried to align our interests in ensuring that the parties found beneficiaries and paid them.

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And the district court... So let me just understand what happened here.

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When the wrap-up agreement was signed, when was the $250,000 paid to you in connection with making efforts to find these additional

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you know, beneficiaries.

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That occurred later in 2013.

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Let me give a quick timeline.

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The agreement signed in 2002.

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We have problems through 2007.

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Magistrate Judge Robinson orders that these issues and processing go back to something called CASB, which is this settlement board.

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So in 2002, all you had was the wrap up agreement itself in terms of

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what you might be entitled to by way of attorney's fees?

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Going forward, when payments are made, they are supposed to deduct 8% going to class counsel.

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That 10-year period.

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I'm just focusing.

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Right.

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Yeah.

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And that's what the language says, but it's conditional.

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And we believe in regard to misinterpreting the contract as a whole, if I can go to that quickly,

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The district court heard in not reading the agreement as a whole and looking at that conditional language in saying when benefits are paid is incorporating the payment and processing standards which were set out at the beginning of the agreement.

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Under their theory and the district court's theory.

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So in your brief, you tell us to read, or you focus on pages one and two of the wrap-up agreement.

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So I went back to read them.

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And I see the general description, but where do you pick up this condition claims made theory?

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In that language is in the attorney's fees provision.

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And based on the course of dealing of the parties, Your Honor,

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these processing standards, which are laid out in the first pages, it specifically says PBGC is to use the standards used by the settlement director.

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And so we pick up between 2002 and 2007 that they're not.

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They're adding a bunch of different conditions

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which is set forth here and not disputed that the settlement director did not follow.

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So that goes to the contract issue, and it also goes to the prevention doctrine.

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They were preventing the claims from being made in accordance with the agreement.

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And so under the contract theory,

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their view is we could have not paid for 10 years, and we're still in agreement, or we're still in compliance with the agreement.

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So the district court says, well, but I look at what actually was happening during this period.

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And a lot of claims were being paid.

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And there was some drop-off, but there's an explanation as to why.

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Why isn't that a clear error?

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I know you want to say it's a matter of law.

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But our view is he applied the wrong standard.

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He says all the fault can't be laid at PBG's feet.

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That's not district of Columbia law, which the parties agree here apply to the consent degree.

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Plus at page nine of his let me just interrupt.

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I'm not

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sure that they drove you to see it.

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I want to know what is it you're saying is DC law that they're invited if they're not consistent with the judge below seem to apply an all or nothing approach that we had to prove all fault has to be laid at PBG speed.

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That's not the standard.

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The standard is substantially hindered or contributed materially and the fact that you're on the prevention doctor.

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Yes, sir.

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I'm on, Your Honor, I'm on the probation doctor.

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Do you have a case where the prevention doctor has been applied by the D.C.

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court in a case where it's not a conditional duty and the party is accused of preventing the completion of the condition?

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this.

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Our view is this is a conditional contract.

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To be clear, I'm maybe not understanding your question, but we cited a conditional.

[00:07:57] Speaker 01:
Yes, sir.

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It's the condition that they were made here for part of your client from

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They didn't appropriately pay the benefits.

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What is the condition that you say existed for their performance of duty, for your performance to trigger their duty, which they prevented you from

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that's the condition.

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We can't

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What they did, and in the record, it is undisputed that hundreds of people were identified prior to 2013, in fact, prior to 2007.

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But they haven't prevented you from performing, because you had nothing to perform at that point.

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The prevention doctrine says one party prevents the other party from performing, and you had nothing to perform except to collect attorney's fees.

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No, we were we were helping as we had been doing.

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We were helping identify, locate and then PBGC was to process.

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How did they prevent you from doing that?

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They wouldn't give us the data, Your Honor.

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So after this referral in 2007, by 2009, we agree in a joint status report to the court that PBGC would pay a million dollars for a relocator project.

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again, hundreds of people had already been found and given to PBGC, and PBGC had not paid them.

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That's the prevention.

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This is the status report of what date?

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It is a 2009 joint status report filed by the partners.

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So following up on Judge Santel's point and Judge Henderson's point, why isn't your

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theory more that there was a breach of the wrap-up agreement to the extent that the corporation was not applying the standards

[00:10:15] Speaker 04:
that were set forth on pages one and two.

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We were going toward that, Your Honor, when the referral was made by the magistrate judge as a firm by Judge Roberts to send these breach issues, compliance issues back to Casby.

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They then hold up Casby

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for a period of time.

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By 2009, we agreed to this $1 million relocator project.

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Council, help me.

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Casby is the chairman of the board?

[00:10:46] Speaker 02:
Casby is a five-person body.

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Oh, okay.

[00:10:50] Speaker 04:
It's the board.

[00:10:51] Speaker 02:
It's the Plus Action Settlement Board, yes.

[00:10:54] Speaker 04:
Okay, just so I know you're talking about.

[00:10:55] Speaker 02:
Yes, I'm sorry, Your Honor.

[00:10:56] Speaker 04:
That's all right.

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There are too many initials.

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Okay, so

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The magistrate judge says the case should go back to the board for the board to make these decisions about, is the corporation properly applying the standards in the wrap-up agreement?

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Correct.

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In essence, are they complying with the agreement?

[00:11:17] Speaker 04:
Then what happens?

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Then what happens in lieu of allowing an audit to determine compliance in 2009

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PBGC agrees with us to the Relocator Project to go find the people we had already found.

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re notice them and allow them to collect the payments.

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That's why if you look at our chart, the payments are huge in 2002 and 2003, in part because the settlement director was involved prior to the transfer over.

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It drops significantly.

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There's 24 to 28 months of no payments in this time period.

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Then come 2013 when they finally fund the relocator project, but only to the tune of $250,000 and class council goes into his own pocket for $250,000 more.

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do we refine folks, hundreds of folks, the vast majority of folks that PBGC simply had not processed and paid, and then 25 million is coming out of the coffers to make those payments.

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And since then, even more has come out.

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That goes to the doctrine of prevention and to how they did not comply with their

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That seems to sound more like arguing a breach than arguing prevention.

[00:13:06] Speaker 02:
Here's the prevention.

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as of 2007, the issue of breach is supposed to go back.

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In 2009, the parties agreed to the relocator project from 2009 to 2013.

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They don't pay for the project per the agreement.

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What we hear duty that they prevented people before me helping to relocate the people.

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Judge sent till

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so we can't perform our duties to the class along with the navigant who's supposed to also go find these people to do that.

[00:13:44] Speaker 01:
So for a period of leading a defense to a breach action that which defense says we don't have to play because you didn't perform a duty.

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I'm reading their defense says that 10 year period is a 10 year period.

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We're not paying anything.

[00:14:01] Speaker 01:
No, they didn't.

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They are not pleading a breach on your part to which you are replying that you were prevented from performing your condition.

[00:14:09] Speaker 02:
I don't have to do that under the doctrine of preparation would be no.

[00:14:13] Speaker 01:
Yeah, that's correct.

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But if that's correct, is there any DC case that applies because the prevention doctrine in that circumstance?

[00:14:23] Speaker 02:
We cited you to the Brown and Root case out of the Fourth Circuit.

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And perhaps I'm misunderstanding your question because I believe the Arnoff case speaks to this doctrine of prevention that it's not a defense to us.

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It is a claim that they prevented us from doing what we agreed to do in 2009.

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And then because of that, they run out the clock and then make all the payments after the 10-year period.

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I see I'm short on time.

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I'd like to reserve the remainder for rebuttal.

[00:14:59] Speaker 05:
All right.

[00:15:02] Speaker 05:
Ms.

[00:15:02] Speaker 05:
Hagan?

[00:15:07] Speaker 05:
Good morning.

[00:15:08] Speaker 05:
Good morning.

[00:15:09] Speaker 05:
Can I ask you a question up front?

[00:15:11] Speaker 05:
Sure.

[00:15:12] Speaker 05:
Is 8% a normal class action attorney's fee percentage?

[00:15:17] Speaker 05:
I don't know.

[00:15:18] Speaker 05:
I just wondered, is that something that either PBGC pays customarily, or is it?

[00:15:29] Speaker 03:
OK.

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I'm not sure.

[00:15:30] Speaker 03:
In this case, it's been, I think, anything but customary.

[00:15:33] Speaker 03:
OK.

[00:15:35] Speaker 03:
uh... may please the court many of them before this case started you're very kind so very kind so what about this argument that you just heard it's it's absolutely incorrect and so in two thousand and nine that's when the parties

[00:16:04] Speaker 04:
or what, the corporation agreed to this relocator effort?

[00:16:11] Speaker 03:
It was never set in stone.

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I think the parties were going back and forth with respect to the locator fees.

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In the wrap-up agreement, there's a three-year period locator fee agreement, which was extended.

[00:16:23] Speaker 04:
Let me go back then, just so I understand.

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When the magistrate,

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sent the case back to the board.

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The board was supposed to resolve all these disputes.

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At some point, did not the parties understand that the corporation was going to make this relocator effort and devote a million dollars to it?

[00:16:59] Speaker 03:
The 2000 decision by the magistrate where things are referred back to the CASB are not compliance issues.

[00:17:07] Speaker 03:
They were the administrative issues of the CASB, referring to sending documents to storage, et cetera.

[00:17:13] Speaker 03:
They were distinctly different than compliance.

[00:17:16] Speaker 03:
It was not compliance that was referred back to CASB.

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So class counsel was incorrect with that.

[00:17:22] Speaker 04:
So were there issues still pending before the magistrate?

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not issues pending before the magistrate.

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There are issues that are still pending before the district court.

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And that is no.

[00:17:31] Speaker 04:
No, I don't understand this.

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There was this argument, as I understood it, that the attorneys had identified people, had a list of people.

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And for whatever reason, those people were not, their claims were not being paid.

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And you heard counsel say the corporation refused to give the attorneys the data.

[00:18:04] Speaker 03:
That is incorrect.

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What class counsel cites that are his own declarations.

[00:18:08] Speaker 03:
That is not true.

[00:18:09] Speaker 04:
So there was no million dollar relocator commitment by the corporation?

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There was never a commitment in stone.

[00:18:17] Speaker 04:
No, I don't need it in stone.

[00:18:20] Speaker 04:
I need it

[00:18:20] Speaker 04:
to know whether the parties reached the agreement and either the magistrate judge or the board understood that or it was just something between the parties?

[00:18:30] Speaker 04:
No, it was just something between parties.

[00:18:31] Speaker 04:
It was nothing that was ever... All right, so what is your understanding of the relocator commitment that was agreed to between the parties?

[00:18:39] Speaker 04:
In 2013, but due to the passage of time... No, I'm back in 2009.

[00:18:46] Speaker 03:
Correct.

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In 2009, I don't think anything was ever, I mean, there's the locator fee project, which was extended between the parties because that's what made sense at the time.

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And the locator fee was what?

[00:19:00] Speaker 03:
Well, locators would go out and search for individuals who have been identified but yet not found.

[00:19:06] Speaker 04:
We're still within this 10-year period.

[00:19:09] Speaker 04:
Correct.

[00:19:12] Speaker 03:
Correct.

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So due to the passage of time in this case, I think it's important to remember the class members that we identify at this point, unfortunately a lot of them are deceased.

[00:19:25] Speaker 03:
So who we are paying are the descendants and the heirs of the class members.

[00:19:29] Speaker 03:
So which of course means that we then, in addition to having to track individuals down, we have to make sure that who we have is the right person that is indeed entitled to a benefit from this class.

[00:19:45] Speaker 04:
So that's what the corporation said it would do as of 2009?

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I believe the parties agreed to involve locators.

[00:19:55] Speaker 04:
That's the locator fee project that initially was supposed to be... I mean, if I go through that record again, will I find that in 2009 that the parties agreed that the corporation was going to make these locator efforts?

[00:20:09] Speaker 03:
I don't think it was.

[00:20:10] Speaker 03:
I think that's part of the Locator Fee Project is part of the greater is within the wrap-up agreement.

[00:20:15] Speaker 03:
The 2009, I think you'll just find probably in status reports.

[00:20:20] Speaker 03:
I don't think it was anything that was actually ever concrete that was agreed to between the parties.

[00:20:24] Speaker 03:
The only thing that was concrete was in 2013, where we gave class council an additional $250,000.

[00:20:31] Speaker 04:
The status report to the district court in 2009, did it make any

[00:20:38] Speaker 04:
commitment about Locator.

[00:20:44] Speaker 03:
I don't believe so, but right now my memory just doesn't, I can't remember to be quite honest.

[00:20:48] Speaker 04:
Well, when I was reading the briefs, the first time a status report was mentioned, when I looked at the status report, there was no complaint about what the corporation was doing.

[00:20:59] Speaker 04:
Correct.

[00:20:59] Speaker 04:
All right, it was a report, here's how many people have paid, et cetera.

[00:21:03] Speaker 04:
Correct.

[00:21:04] Speaker 04:
Then later on, there's a subsequent status report where there is a complaint.

[00:21:10] Speaker 04:
And all I'm trying to figure out is,

[00:21:12] Speaker 04:
whether that happened within this 10-year period or there was some other agreement between the parties.

[00:21:20] Speaker 03:
Right.

[00:21:20] Speaker 03:
I think the complaint started after the 10-year period.

[00:21:25] Speaker 03:
Our position is that class counsel had 10 years to come forward.

[00:21:28] Speaker 03:
He had options.

[00:21:30] Speaker 03:
If he felt that class members were not being paid,

[00:21:33] Speaker 03:
He had 10 years to come forward.

[00:21:35] Speaker 03:
He could have brought an APA action on behalf of his clients.

[00:21:40] Speaker 03:
Each member of the class is represented by class counsel.

[00:21:44] Speaker 03:
He absolutely could have brought an APA action.

[00:21:46] Speaker 03:
He could have come before the district court and complained.

[00:21:49] Speaker 04:
Well, he could have done a number of things, but you have acknowledged here that the parties had agreed that these efforts were going to be made.

[00:21:59] Speaker 03:
What I was agreeing to was the locator fee project that was part of the wrap-up agreement that initially was supposed to be three years, but between the parties, because it made sense at the time, was extended.

[00:22:11] Speaker 03:
But it was extended not because in any way it was ambiguous, as class council alludes, it was just because of what made sense at the time between the parties.

[00:22:21] Speaker 05:
Let me ask you, Beth.

[00:22:23] Speaker 05:
Am I confused in 2002?

[00:22:28] Speaker 05:
Had something like 90% of the beneficiaries been found?

[00:22:32] Speaker 03:
Correct.

[00:22:33] Speaker 03:
By 2002, I believe it was over 117 class members that had been paid.

[00:22:41] Speaker 03:
By the time we reached, I'm sorry.

[00:22:44] Speaker 03:
How many?

[00:22:44] Speaker 03:
117,000 class members.

[00:22:47] Speaker 05:
Well, I thought it was

[00:22:49] Speaker 05:
And that produced $85 million in attorney's fees?

[00:22:54] Speaker 05:
When did that amount add up to?

[00:22:57] Speaker 05:
When was that?

[00:22:57] Speaker 05:
I thought that was in 2002, based on hundreds of thousands of people being found.

[00:23:03] Speaker 03:
I believe that when that's at the time of the district court's decision, by the time we reach 2016, where we have 85 million.

[00:23:09] Speaker 03:
85 million.

[00:23:10] Speaker 05:
Approximately.

[00:23:12] Speaker 05:
How many hundreds of thousands of people had been found by then?

[00:23:15] Speaker 03:
By now?

[00:23:16] Speaker 03:
By then.

[00:23:18] Speaker 03:
By the time we reached the wrap-up agreement, it's over 117,000.

[00:23:21] Speaker 05:
So when the district court order came down?

[00:23:24] Speaker 03:
Oh, it's over 125,000.

[00:23:25] Speaker 03:
OK.

[00:23:26] Speaker 03:
And within the 10-year period, I mean, a great deal of progress was made because by the time we get to 2010, 96% of the class had been found and paid.

[00:23:42] Speaker 03:
So a great deal of progress has been made.

[00:23:45] Speaker 03:
Class Council now is essentially trying to backstep on his initial promise that was made between the parties.

[00:23:52] Speaker 03:
There's nothing ambiguous about the terms of the wrap-up agreement.

[00:23:56] Speaker 03:
The terms started August 31, 2002 and explicitly ended August 31, 2012.

[00:24:04] Speaker 03:
Class Council, if you follow his interpretation of the wrap-up agreement,

[00:24:12] Speaker 03:
we would essentially be bound by class council.

[00:24:22] Speaker 03:
Class council also applies the doctrine of prevention, but PBC's decision is that there is no... I'm sorry.

[00:24:40] Speaker 03:
Would you like some water?

[00:24:43] Speaker 03:
No.

[00:24:46] Speaker 03:
People you see did not hinder or prevent class counsel from receiving his settlement benefits.

[00:24:53] Speaker 03:
There was nothing that, despite his action or inaction, class counsel received 8% of settlement benefits.

[00:25:03] Speaker 04:
OK, so just help me with one other figure.

[00:25:05] Speaker 04:
The $250,000, what year was that paid?

[00:25:11] Speaker 03:
That was 2013.

[00:25:17] Speaker 03:
Class Council also believes that the 2007 decision is the law of the case in this decision, but this is distinctly different.

[00:25:25] Speaker 03:
This is not, that decision was not handed to our attorney's fees.

[00:25:30] Speaker 03:
He tries to make them similar, but they are not in any way similar.

[00:25:39] Speaker 04:
So the corporation's position is that the wrap-up agreement entitled plaintiff's counsel to 8% for this 10-year period, that after that, namely in 2013, the corporation agreed to pay $250,000 to class counsel in connection with further efforts to locate

[00:26:08] Speaker 04:
proper claimants.

[00:26:12] Speaker 04:
And that was the extent of any financial commitment by the population to the plaintiff's counsel, the class counsel.

[00:26:25] Speaker 04:
So any money that class counsel decided to spend over that $250,000 was simply a voluntary act on behalf of class counsel.

[00:26:39] Speaker 05:
Will you get some help?

[00:26:41] Speaker 05:
Will you get some help?

[00:26:42] Speaker 05:
Yeah, call the nurse's office.

[00:26:44] Speaker 03:
Do you want to call Connolly for PBGC?

[00:26:59] Speaker 06:
Yes, any additional amounts spent over that were entirely voluntary.

[00:27:04] Speaker 06:
All right.

[00:27:04] Speaker 06:
And just to back up for a moment to the million dollar so-called agreement, that was never finalized.

[00:27:09] Speaker 06:
There were demands being made by class counsel in order to come up with that million dollar agreement that PBGC was not willing to agree to.

[00:27:16] Speaker 06:
So that was never crystallized.

[00:27:18] Speaker 06:
When it was reported to the court in a status agreement, it was in the process of being worked on, and it was never finalized.

[00:27:24] Speaker 06:
Thank you.

[00:27:28] Speaker 05:
Any more questions?

[00:27:29] Speaker 06:
No.

[00:27:31] Speaker 06:
Any further questions?

[00:27:32] Speaker 06:
Thank you.

[00:27:39] Speaker 05:
Wait just a second.

[00:28:29] Speaker 05:
Does Mr. Aitze have any time left?

[00:28:33] Speaker 05:
All right, why don't you take a minute or two minutes.

[00:28:36] Speaker 02:
Thank you, Your Honor.

[00:28:38] Speaker 02:
Judge Rogers, in response to your questions, the 2009 Joint Status Report is in the record at JA.

[00:28:46] Speaker 04:
No, I said, you know, I read it.

[00:28:48] Speaker 04:
Right.

[00:28:48] Speaker 04:
Where is there any complaint about the corporations dragging its feet or something like that or not following the standards?

[00:28:56] Speaker 02:
Well, that came in the briefing prior to 2007.

[00:29:00] Speaker 02:
You'll notice in status reports starting in 2004 leading up to the motion to refer this to CASB that we're complaining of the processing issues that were occurring.

[00:29:17] Speaker 02:
And this was a referral back to determine compliance with the agreement.

[00:29:23] Speaker 02:
If you look at Judge Robert's order at J95, it's referred back to CASB for determination of the pending administrative issues related to the party's compliance.

[00:29:34] Speaker 02:
with the wrap-up agreement.

[00:29:36] Speaker 02:
That was the point of the referral back.

[00:29:38] Speaker 02:
And instead of allowing that compliance audit to occur, the parties agreed differently to this $1 million project.

[00:29:48] Speaker 02:
And I'll note in the record, at J.A.

[00:29:52] Speaker 02:
318 through 324 is the agreement with

[00:29:57] Speaker 02:
to find these people.

[00:30:15] Speaker 02:
They did not fund the project.

[00:30:17] Speaker 02:
It was only after 2013 after mediations because they had not paid

[00:30:26] Speaker 02:
that we're going to be able to do that.

[00:30:28] Speaker 02:
Tap turns on.

[00:30:28] Speaker 02:
We re go find people.

[00:30:29] Speaker 02:
We put in our own money and $25 million flows out of the tap at that point after the 10 year period.

[00:30:37] Speaker 02:
This contract should be interpreted in light of the intent of the parties, which was not to put us at the mercy of PBGC, not paying number one and number two.

[00:30:47] Speaker 02:
The doctrine of