[00:00:02] Speaker 03: Good morning, Your Honors. [00:00:04] Speaker 03: Russell Haney representing the appellants in this case, the proposed interveners. [00:00:08] Speaker 03: If I may, I'd like to reserve five minutes of my argument time for rebuttal. [00:00:12] Speaker 03: In this case, we're asking this court to reverse Judge Rogers' decision when she denied our motion to intervene. [00:00:19] Speaker 03: We moved to intervene. [00:00:21] Speaker 03: We represent 185 plaintiffs on the intervention motion. [00:00:24] Speaker 03: We moved to intervene in order to appeal Judge Rogers' previous decision to deny the certification of the damages class. [00:00:34] Speaker 03: As this Court knows, Judge Rogers denied that decision. [00:00:36] Speaker 03: She found that the motion was untimely and that we didn't make a case that there was an impairment of interest sufficient for the standing under [00:00:45] Speaker 03: rule 23 in order to intervene. [00:00:47] Speaker 03: We're appealing that. [00:00:49] Speaker 03: We've made our arguments in the briefs that, A, we don't think we were untimely. [00:00:53] Speaker 03: If anything, we might have been premature in our motion to intervene. [00:00:57] Speaker 03: We think the Court abused her discretion on the issue of timeliness because she applied the wrong legal precedent in focusing on the wrong stage of proceedings, which this Court has repeatedly focused on and the Supreme Court has given opinions on. [00:01:11] Speaker 03: And so we think there's an abuse of discretion there calling our motion untimely, given the very deep bench of cases that have talked about timing for that particular context. [00:01:21] Speaker 03: And then with impairment of interest, frankly that's a de novo review, and here it's a classic interest that we're seeking to [00:01:32] Speaker 03: champion, and that is the right to be able to appeal a denial of a class certification once the named representatives, the class reps are no longer going to do that. [00:01:42] Speaker 03: This comes up routinely. [00:01:43] Speaker 03: It's not surprising. [00:01:44] Speaker 03: And I think there's case law that supports that that is an interest that can be impaired and that this is a proper procedural way to go about it. [00:01:52] Speaker 03: So we think the judge simply just got it wrong on both counts. [00:01:56] Speaker 03: And we'd like the court to reverse her decision. [00:01:58] Speaker 04: What would, if you're to intervene, [00:02:01] Speaker 04: You say in your briefs you're to preserve appellate rights. [00:02:04] Speaker 04: You're saying if you're allowed to intervene, you would immediately appeal the denial of class cert or you would try the case to final judgment on the individual's claims. [00:02:17] Speaker 04: What exactly are you seeking? [00:02:18] Speaker 03: So we want that right. [00:02:20] Speaker 03: We want there to be an appellate review of the denial of the damages certification. [00:02:27] Speaker 03: And so that can't happen until there's a final decision, of course, right? [00:02:32] Speaker 03: And the Brown, the class representatives already sought interlocutory appeal. [00:02:38] Speaker 03: This court denied it. [00:02:39] Speaker 03: We have to await a final decision. [00:02:41] Speaker 03: And we brought the motion to intervene, so we'd be positioned to do that because they announced a settlement where they were waiving the right to do that. [00:02:48] Speaker 03: They announced that they were not going to appeal that decision. [00:02:51] Speaker 03: They were not going to go to trial. [00:02:52] Speaker 03: They were going to settle all their claims. [00:02:54] Speaker 03: They have a class action settlement. [00:02:56] Speaker 03: They filed a motion for final approval of that class action settlement. [00:03:00] Speaker 03: Before that was even heard, we filed a motion to intervene so that we'd be positioned, once final decision was reached, to be able to appeal that final remaining issue. [00:03:10] Speaker 03: And so no, we wouldn't immediately appeal. [00:03:12] Speaker 03: We still have to await a final decision. [00:03:14] Speaker 03: And in fact, there may not be a final decision. [00:03:16] Speaker 03: Obviously, the settlement has been put on hold. [00:03:20] Speaker 03: The court has said there are fundamental issues of fairness that have been raised. [00:03:23] Speaker 03: We don't know what will happen. [00:03:25] Speaker 03: And so it may end up being that the case gets resolved in a different way. [00:03:30] Speaker 03: And we don't have to appeal that. [00:03:31] Speaker 03: It may be that the brown representatives will appeal it themselves, depending on how they ultimately resolve this case. [00:03:38] Speaker 03: But we just want that right to be preserved and not lost, as it would have been if the court had granted final approval on the proposed settlement. [00:03:48] Speaker 04: But there could be no class settlement that I guess you would intervene. [00:03:53] Speaker 04: can unravel the settlement and then try your case individually, get a final judgment, then appeal the class cert denial? [00:04:03] Speaker 03: We're not seeking to unravel the settlement. [00:04:05] Speaker 03: And that's not part of our, we anticipate that there was going to be a final approval and a dismissal of all claims. [00:04:13] Speaker 03: We wanted to be able to appeal that one issue, which was the denial of the certification of a damages class. [00:04:19] Speaker 03: We're perfectly, we think they reached a good settlement with respect to injunctive relief. [00:04:24] Speaker 03: It definitely benefited the class. [00:04:26] Speaker 03: We have no issues with that. [00:04:28] Speaker 03: And right now it's on hold. [00:04:31] Speaker 03: I would imagine, and I don't have any evidence to this, but I would imagine that once the parties found out, they were relinquishing, expressly relinquishing the right to appeal the certification of the damages class. [00:04:40] Speaker 03: That's an important settlement provision. [00:04:43] Speaker 03: I would imagine that that may have thrown a wrench into the ultimate agreement to settle. [00:04:48] Speaker 03: They had hoped no one would take that up. [00:04:50] Speaker 03: They wanted it to be gone. [00:04:51] Speaker 03: It was part of the settlement agreement. [00:04:53] Speaker 03: And we're simply standing up for the class saying there's going to be tens of millions, according to the ground, their own language, perhaps tens of millions of people who will never effectively have an opportunity to pursue these claims. [00:05:06] Speaker 03: Because without a class action vehicle, it's just not practical and it won't happen. [00:05:10] Speaker 04: Isn't the proper vehicle here just to be your clients to be objectors? [00:05:14] Speaker 04: Because it seems like you're [00:05:16] Speaker 04: Attacking the fairness of the settlement just wait until it goes up to the district court has to approve, but you can go in there and say hey these Non-name class Members are getting a raw deal. [00:05:27] Speaker 04: We don't think it's fair go back to the table Isn't that it seems like that's the more proper vehicle rather than this kind of intervention Well, but we actually don't object to this Well, you do that the debt right the damages that the people aren't the [00:05:40] Speaker 04: People who aren't the class reps aren't getting any damages. [00:05:43] Speaker 03: In the motion for approval and in the settlement agreement itself, they expressly tell the court that the other class members, the unnamed, the putative class members and the damages class are free to go and appeal this themselves. [00:05:55] Speaker 03: This is what they're telling the court. [00:05:57] Speaker 03: That's all we want to be able to do. [00:05:58] Speaker 03: Just follow the dictates of the settlement agreement. [00:06:00] Speaker 03: They're settling everything. [00:06:01] Speaker 03: They're settling their individual damages. [00:06:03] Speaker 03: They're settling the injunctive relief. [00:06:04] Speaker 03: They're settling the attorney's fees. [00:06:06] Speaker 03: And they're saying, look, if other class members want to appeal this issue, this is what they told the court in their filings, if they want to appeal this issue, they are free to do so. [00:06:14] Speaker 03: They are not giving up that right. [00:06:15] Speaker 03: So we're picking up the ball saying, we would like to appeal that issue. [00:06:18] Speaker 03: It's valuable. [00:06:19] Speaker 03: It's important to us and to unnamed class members who do not have their damages being litigated. [00:06:23] Speaker 03: So go ahead with your settlement. [00:06:25] Speaker 03: That's fine. [00:06:26] Speaker 03: Let us appeal on this issue. [00:06:28] Speaker 01: Is there a settlement? [00:06:29] Speaker 01: I mean, I'm trying to unfold what happens. [00:06:34] Speaker 01: If you're allowed to intervene, you basically, as Judge Lee points out, what seems to be at issue here is the differential treatment between the class representatives and the absent class members with regard to ability to pursue claims. [00:06:50] Speaker 01: You're free to pursue claims if you've got a statute of limitations problem. [00:06:54] Speaker 01: And so, can the settlement actually [00:06:58] Speaker 01: be concluded if, in fact, you're there insisting upon the right to appeal the damages element? [00:07:05] Speaker 03: That's a practical negotiation question. [00:07:08] Speaker 01: Well, yeah, that's what I mean. [00:07:09] Speaker 01: It's all well and good for you to say the settlement can go forward, but I don't understand how that actually works. [00:07:17] Speaker 03: Your Honor, this happens commonly, that the named plaintiffs settle their case, their issues, and they're done. [00:07:22] Speaker 03: And someone else intervenes to pick up the ball on other things. [00:07:26] Speaker 03: And so it's not uncommon. [00:07:28] Speaker 03: We have plenty of cases where this happens. [00:07:29] Speaker 03: So there's no legal impediment to it. [00:07:31] Speaker 03: It can happen. [00:07:32] Speaker 03: And so... Is there a settlement? [00:07:35] Speaker 01: I mean, do they actually conclude the settlement that they negotiated if in fact the term of the settlement which says, [00:07:45] Speaker 01: There will not be an appeal of the class certification issue with regard to damages. [00:07:51] Speaker 01: That's no longer the case because you're appealing it. [00:07:54] Speaker 03: I can't answer that. [00:07:55] Speaker 03: But what they told the court was that the unnamed class members, other people were free to pick up this issue and move with it. [00:08:01] Speaker 03: So according to their representations to the court, they were okay with settling along these lines and allowing other people to appeal this issue. [00:08:10] Speaker 03: That's what they told the court. [00:08:11] Speaker 03: Whether that's true, whether seriously there's a practical issue or not, but in their representations, they said, we are not binding the hands of the unnamed class members when it comes to individual damages, and they are not waiving any rights with respect to damages. [00:08:30] Speaker 03: Now, is there a practical effect? [00:08:31] Speaker 03: I'm sure there is. [00:08:31] Speaker 03: I don't know what it is. [00:08:32] Speaker 03: I'm not privy to those conversations. [00:08:34] Speaker 03: I'm not on that side of the fence. [00:08:37] Speaker 03: And so I don't know. [00:08:39] Speaker 03: And I don't think there's anything in the record that will tell us one way or the other. [00:08:43] Speaker 03: But our position is we actually like the settlement. [00:08:47] Speaker 03: We liked every part of it except for this one thing. [00:08:49] Speaker 03: And we felt we would [00:08:51] Speaker 03: Our preference would be for the settlement agreement to go forward as planned. [00:08:55] Speaker 03: And they didn't move to stop the settlement. [00:08:57] Speaker 03: They didn't ask the court to freeze because of this proceeding. [00:09:00] Speaker 03: The court took it upon itself, the trial court, to not move forward to the final approval because of the issues that are being raised here. [00:09:09] Speaker 03: And so they haven't made any formal statements to the court that they don't want to move forward with their settlement. [00:09:15] Speaker 03: No one's told us that the settlement's off now because someone's seeking to appeal the denial of the class damages, someone else, other than the party to the settlement agreement. [00:09:26] Speaker 03: And so again, this is a lot of conjecture. [00:09:29] Speaker 03: But I do think it's important. [00:09:31] Speaker 03: I think when we go back to the actual motion, which is supposed to be construed liberally, it's supposed to be very permissive to allow people that may have their rights impaired as a practical matter to be intervened. [00:09:41] Speaker 03: This is seen all the time. [00:09:42] Speaker 03: We were only asking for that opportunity to discuss that and to be able to be in a position to appeal it if it was truly going to be abandoned. [00:09:50] Speaker 03: And I just think that the court's reason for denying it that she was wrong. [00:09:53] Speaker 03: I think that she misconstrued the law. [00:09:57] Speaker 03: And I think it should be reversed based on well-established cases. [00:10:00] Speaker 04: Can you briefly address time limits? [00:10:02] Speaker 04: Why did you wait three months after the settlement became public to follow your motion to intervene? [00:10:07] Speaker 03: There was two things going on. [00:10:09] Speaker 03: First of all, [00:10:10] Speaker 03: As we informed the court, there was a reference in the motion for approval of the settlement agreement to a tolling agreement. [00:10:18] Speaker 03: There was no details we're giving at all. [00:10:21] Speaker 03: I kind of funnily pointed out that it was on page 48, paragraph 175 of exhibit 11, but it's just this one little passage in Martin Mao's declaration where we stumbled upon it. [00:10:34] Speaker 03: Because there was no formal notice given to the class. [00:10:36] Speaker 03: You have to be watching the docket to even know this was going on. [00:10:38] Speaker 03: So no notice to the class. [00:10:40] Speaker 03: We saw that there was a tolling agreement. [00:10:41] Speaker 03: It did not explain what the scope or the terms of those tolling agreement was. [00:10:45] Speaker 03: We didn't know how much it would affect our clients or not. [00:10:49] Speaker 03: We sought to get copies of the 20 agreement. [00:10:51] Speaker 03: We put into the record some of the email exchanges. [00:10:53] Speaker 03: We were told we could go get it from Google. [00:10:55] Speaker 03: We were told that it was confidential. [00:10:57] Speaker 03: It wasn't until we filed our motion to intervene that we finally got a copy of it. [00:11:01] Speaker 03: And there was also a phone call. [00:11:02] Speaker 03: So there was some effort to try to find out it exists. [00:11:05] Speaker 03: You know, it's a big step. [00:11:06] Speaker 03: It's a big thing to this amazing firm who's done great work and put together a fantastic course of litigation over four years and exposed the wrongdoing in our mind and are protecting people to step in and intervene. [00:11:20] Speaker 03: It was something we didn't do lightly. [00:11:21] Speaker 03: We didn't want to do lightly. [00:11:22] Speaker 03: We wanted to see if that tolling agreement would have allowed us to protect our own clients' interests and be okay. [00:11:28] Speaker 03: And we were just forced to do it. [00:11:30] Speaker 04: Is it common for tolling agreements to cover, you know, unnamed [00:11:34] Speaker 04: at the absent class members typically? [00:11:36] Speaker 03: It could, especially if they were going to go out on an advertising campaign and try to pick up other clients for the damages portion of it, because they were going to pursue those damages portions in a different venue. [00:11:44] Speaker 03: And so we didn't know what it could include, and so we just didn't know, and we want to be able to see what it is and have all the facts. [00:11:50] Speaker 03: So it was three months, but it was, again, all the Supreme Court has said that the timing for this is, [00:11:56] Speaker 03: after final judgment and before the deadline to appeal. [00:12:00] Speaker 03: So we felt like we were premature. [00:12:02] Speaker 03: And we actually felt like we were moving prematurely, but we needed to get a copy of the tolling agreement and we needed to access the documents. [00:12:09] Speaker 03: And so I don't think there was any undue delay. [00:12:13] Speaker 03: And remember, the issue of delay, the court has said, this court has said, the issue of delay has to be couched in the context of prejudice. [00:12:20] Speaker 03: That's the only reason. [00:12:21] Speaker 03: In the Calvars decision, it's not supposed to be punitive. [00:12:23] Speaker 03: Is the delay, does it cause legal prejudice? [00:12:26] Speaker 03: No prejudice. [00:12:27] Speaker 03: In that three months, nothing of significance took place. [00:12:29] Speaker 03: And it was a month before there was even going to be a hearing. [00:12:32] Speaker 03: The hearing was set for August of 2024 on that final approval. [00:12:35] Speaker 03: So zero prejudice, very small delay. [00:12:38] Speaker 03: We had reasons for the delay. [00:12:39] Speaker 03: And I think we're premature even then. [00:12:41] Speaker 01: And I'm not sure if this is a... That's total, so you're well into your final minutes. [00:12:50] Speaker 03: We've taken you there. [00:12:51] Speaker 03: Okay, thank you. [00:12:51] Speaker 03: I'll reserve if that's okay, Your Honor. [00:12:53] Speaker 04: Thank you. [00:12:54] Speaker 03: Thank you. [00:13:04] Speaker 05: Good morning. [00:13:04] Speaker 05: May it please the court, Stephen Broom from Quinn Emanuel, and I represent Google. [00:13:11] Speaker 05: Mr. Handy just told the court that we're not seeking to unravel the settlement. [00:13:16] Speaker 05: But that is what they argued in the proceedings below, and that there has been somewhat of what I'd call a moving target problem. [00:13:23] Speaker 05: in the sense of what exactly the purpose is that they're into, the purpose for which they're intervening has been far from clear. [00:13:32] Speaker 05: In the proceeding below, what they said to the court is that they wanted to get a copy of the tolling agreement so that they could consider their position on the settlement and to potentially prevent a so-called sweetheart deal where the name plaintiffs would get to resolve their claims in arbitration. [00:13:48] Speaker 05: But then they got the tolling agreement and they did not object to the settlement. [00:13:53] Speaker 05: And I agree with you, Judge Lee, that the proper way to challenge the settlement, if that is indeed what they were trying to do, would be by filing an objection. [00:14:01] Speaker 05: And they have not done that. [00:14:02] Speaker 05: And Mr. Handy has said that he does not object to the settlement. [00:14:06] Speaker 05: But at the hearing below, they shifted their position. [00:14:13] Speaker 05: They made clear that they were, I'm sorry, at the hearing below, Judge Gonzales Rogers specifically asked counsel for interviewers, are you planning on taking an appeal yourselves? [00:14:24] Speaker 05: And he said, [00:14:25] Speaker 05: No, because there would be no jurisdiction under the Supreme Court's decisions in Microsoft v. Baker and this Court's unpublished decisions in Bobbitt and Martinez, which came out directly after Microsoft v. Baker. [00:14:40] Speaker 05: Now on appeal, their position has shifted. [00:14:43] Speaker 05: In fact, I think it's shifted enough that we would argue that what they are seeking now has not actually been [00:14:48] Speaker 05: was not actually raised below and would be relief that they're seeking for the first time on appeal. [00:14:54] Speaker 05: Now they say in their opening brief that they want to take the appeal themselves. [00:14:58] Speaker 05: And then on their reply brief, they say, well, maybe we won't actually need an appeal. [00:15:02] Speaker 05: This is at page three of their reply brief. [00:15:04] Speaker 05: They say, what we really want is a seat at the table to discuss the interests of the absent class members in the damages claims and the certification issue. [00:15:13] Speaker 05: Well, again, there is a process for getting that seat at the table. [00:15:16] Speaker 05: when you want to have input on a settlement agreement. [00:15:19] Speaker 05: And that is by filing an objection, which again, they haven't done. [00:15:23] Speaker 05: So you can't fault the district court for denying their motion to intervene when what they argued below was, we want to challenge this supposed sweetheart deal between the plaintiffs and Google. [00:15:37] Speaker 05: And she rejected that. [00:15:40] Speaker 05: They had not moved by the right process. [00:15:42] Speaker 05: They had not done it timely. [00:15:44] Speaker 05: They knew in December that we were settling this case. [00:15:47] Speaker 05: And since it was only a B2 class certified, they knew it was only going to be a B2 settlement. [00:15:53] Speaker 04: Now their position... Sorry, do they still have time to file an objection or has that time passed? [00:15:58] Speaker 05: I would say that time has passed, yeah, because we've already had the final approval hearing. [00:16:03] Speaker 05: Now if what they want to do, as they say in their opening appeal brief, [00:16:07] Speaker 05: They want to take an immediate appeal of the class certification decision. [00:16:11] Speaker 05: Well, that's impossible, right? [00:16:13] Speaker 05: The district court has not resolved a single claim on the merits. [00:16:17] Speaker 05: We lost at the motion to dismiss stage. [00:16:19] Speaker 05: We moved to dismiss all claims. [00:16:20] Speaker 05: We lost. [00:16:21] Speaker 05: None of those were resolved in the merits. [00:16:23] Speaker 05: Same at summary judgment. [00:16:24] Speaker 05: We lost again. [00:16:25] Speaker 05: None of those claims were resolved in the merits. [00:16:28] Speaker 05: And then we settled before trial. [00:16:29] Speaker 05: So there has been no final decision in this case. [00:16:33] Speaker 05: And under Microsoft v. Baker, if the plaintiffs had settled with us and had not, let's assume we had not included this provision about waiving their right to appeal, which I'll explain in a moment is not nearly as nefarious as it sounds. [00:16:48] Speaker 05: If we had excluded that provision and just had a settlement and a voluntary dismissal with prejudice, there would be no final decision. [00:16:57] Speaker 05: The plaintiffs certainly could not take an appeal of that decision. [00:17:01] Speaker 05: This court would have no jurisdiction. [00:17:04] Speaker 05: That's clear from Microsofty Baker. [00:17:06] Speaker 05: And nor should the interveners be able to come along and do what the plaintiffs could not do, right? [00:17:13] Speaker 05: If the plaintiffs cannot appeal this district court's class certification decision, the interveners should not be able to do that either. [00:17:21] Speaker 05: Otherwise, they would have some privileged status as interveners that the plaintiffs themselves don't have. [00:17:26] Speaker 05: So where we are now is that unless the settlement is rejected and let's say the interveners are allowed to intervene, they still need to try their claims. [00:17:39] Speaker 05: And I think Judge Lee, you're alluding to this in your questions. [00:17:42] Speaker 05: They still need to try their claims. [00:17:45] Speaker 05: through to a final judgment. [00:17:47] Speaker 05: And that necessarily unwinds the settlement. [00:17:50] Speaker 05: I mean, the key aspect from Google's perspective is finality. [00:17:54] Speaker 05: We thought we were settling the case. [00:17:57] Speaker 05: If they're going to intervene and come and take an appeal of the B3, we presumably would be entitled to then also appeal the grant of the B2, which again could unwind the settlement if we were to prevail, and then [00:18:14] Speaker 05: you know, if you think about this from a practical perspective, what happens if Mr. Handy succeeds in getting this court to reverse the district court's B3 denial? [00:18:26] Speaker 05: We would then have to go [00:18:27] Speaker 05: We don't have anymore plaintiffs, right? [00:18:30] Speaker 05: They would need to intervene and presumably step into the shoes of the named plaintiffs. [00:18:35] Speaker 05: We would need discovery. [00:18:36] Speaker 05: We would need expert discovery on those named plaintiffs. [00:18:39] Speaker 05: We would have to have another round of summary judgment briefing. [00:18:42] Speaker 05: And we would probably have to take the case to trial. [00:18:45] Speaker 05: So from a practical perspective, what they are asking for is not realistic. [00:18:53] Speaker 01: So you really answered the question posed earlier, which is that, [00:18:58] Speaker 01: If the appeal by, I keep thinking of them as objectors, because usually it comes up in that guide, the proposed intervenors, that ends the settlement. [00:19:10] Speaker 01: that could be redone later, but the existing settlement on the table blows up. [00:19:15] Speaker 01: That's exactly right, Judge Clifton. [00:19:17] Speaker 05: Yeah. [00:19:18] Speaker 05: And I do want to make sure I address a couple of the key cases. [00:19:24] Speaker 02: Counsel, the one thing I would like you to address, I know you've only got a minute or so, but I'd like to get an answer, is [00:19:29] Speaker 02: All of this is very, very interesting, but this is not the basis for the district court's decision. [00:19:34] Speaker 02: The basis for the district court's decision was that their motion wasn't timely. [00:19:38] Speaker 02: Can you tell me why it's not timely? [00:19:40] Speaker 05: Sure. [00:19:40] Speaker 05: It was twofold. [00:19:42] Speaker 05: One, they hadn't established a protectable interest, and two, it was untimely. [00:19:47] Speaker 05: Yeah, I think the timeliness question turns on what is the purpose for which they're seeking intervention. [00:19:53] Speaker 05: And this goes to the point I raised earlier. [00:19:56] Speaker 05: If they were seeking intervention, [00:19:58] Speaker 05: for the purpose they claim now solely to take the appeal, then I think they are right that under United Airlines versus McDonald, the time for doing that would be within the 30-day window after the settlement. [00:20:14] Speaker 05: But again, that's not allowed anymore because since United Airlines versus McDonald, the Supreme Court issued its Microsoft decision and then this court's Bobbitt and Martinez decisions make clear that appeal can't be taken. [00:20:28] Speaker 05: But if the purpose for which they were seeking intervention was to do what they told the district court they were trying to do, then that was to challenge the settlement. [00:20:41] Speaker 05: They said they wanted to challenge this supposed sweetheart deal and the release of the appellate rights. [00:20:48] Speaker 05: And that is an objection to a settlement. [00:20:50] Speaker 05: And the time for doing that was as soon as they learned that we were settling. [00:20:56] Speaker 05: Because they knew at that point, and that was December, I think December 23rd of 2023, we announced that we had settled. [00:21:03] Speaker 05: They knew it was a B2 only class. [00:21:05] Speaker 05: And I would submit that there is a case that addresses this timeliness issue very directly that we've cited in our papers. [00:21:11] Speaker 05: And it's this court's 1986 decision in Orange County, the Air, California. [00:21:16] Speaker 05: And the court does impose a fairly demanding standard on interveners in that situation. [00:21:20] Speaker 05: It says as soon as you have any notion that your rights might be affected by a forthcoming settlement, you need to intervene right away and get a seat at the negotiating table so that you can protect whatever rights you want to protect. [00:21:37] Speaker 05: If you don't do that and you wait, and then the settlement comes out and you say, oh, I don't like the settlement, [00:21:42] Speaker 05: then that's too late. [00:21:45] Speaker 05: And in this case, we announced the settlement December 23rd, 2023. [00:21:50] Speaker 05: They did not raise any concerns until five months later. [00:21:56] Speaker 05: Meanwhile, they spent that time filing their individual actions. [00:22:01] Speaker 05: Thank you. [00:22:01] Speaker 05: Thank you, Your Honor. [00:22:08] Speaker 00: Morning, Your Honor. [00:22:09] Speaker 00: David Boyd may please the court. [00:22:13] Speaker 00: I'd like the court to consider four points. [00:22:16] Speaker 00: First, with respect to Bobbitt and Martinez, those are cases that I respectfully suggest are all fours with what the court is presented with today. [00:22:26] Speaker 00: You had a situation in which you had a class action. [00:22:31] Speaker 00: Class cert was denied. [00:22:33] Speaker 00: The case was settled. [00:22:37] Speaker 00: People came along, tried to intervene for the sole purpose of appealing the denial of class certification, which is what the movements here say that they intend to do. [00:22:48] Speaker 00: And the court held twice, first in Bobbitt, then in Martinez, that there was no jurisdiction to do that following the Microsoft case. [00:22:57] Speaker 00: I don't think that this case is distinguishable from those two decisions. [00:23:02] Speaker 00: Second, what is happening here is that [00:23:07] Speaker 00: They're trying to go around the Microsoft case. [00:23:11] Speaker 00: The Microsoft case holds that if somebody settles and dismisses their case, that's not a final judgment for appeal. [00:23:19] Speaker 00: What they're trying to do is say, well, if somebody else comes in and tries to intervene, then they can appeal that decision. [00:23:29] Speaker 01: That would entirely unravel what the Supreme Court did in Microsoft and that was... If we take Microsoft to stand for appeal at that time, but if they intervene and further proceedings in the district court lead to something that's an appealable, final judgment, couldn't they appeal then? [00:23:51] Speaker 00: I think if that had been what they had said to the district court, that would be an entirely different situation. [00:23:58] Speaker 00: The third point I'd like the court to consider is that what the district court was presented with was 185 people trying to intervene who had already filed cases, which cases were pending at the time covering the same subject matter. [00:24:16] Speaker 00: And so the court [00:24:22] Speaker 00: held not only a timelessness, they held it was not impairment, because they not only could file cases, they had filed cases. [00:24:30] Speaker 00: This was not a situation in which people were coming in and needed to do something to protect their right to sue. [00:24:37] Speaker 00: They were already suing. [00:24:39] Speaker 00: And what the court was doing was denying intervention into the class action for people who already had cases pending on the same subject matter. [00:24:49] Speaker 00: The court was confronted with, not with a situation in which they said, we want to intervene in order to litigate. [00:24:59] Speaker 01: The court was, and this is... Well, but what were their prospects in those separate lawsuits? [00:25:05] Speaker 01: Didn't they face a limitations problem? [00:25:09] Speaker 00: They may face a limitations problem. [00:25:11] Speaker 00: They've argued in those cases they do not face a limitations problem. [00:25:17] Speaker 00: But whether they face a limitations problem or not is not something that depends on whether there's a class action or not. [00:25:25] Speaker 00: I think the law is pretty clear from the Supreme Court and in this circuit that once a district court denies class certification, [00:25:37] Speaker 00: tolling resumes, I mean tolling ends. [00:25:41] Speaker 00: And so, if they've lost their case, if they've lost their cause of action because of the statute of limitations, they've lost it whether they're in a class action or whether they're filing individual actions. [00:25:56] Speaker 01: Well, their focus is on the tolling and the fact that the tolling agreement did not, would have sort of extended the tolling period, did not apply [00:26:07] Speaker 01: to their clients, now it can fairly be argued that that's the moment at which they needed to speak up and take action. [00:26:15] Speaker 01: And they didn't and that gets to the timeliness problem that underlies the district court order. [00:26:20] Speaker 01: But the reality is that the tolling problem is there and there's some logic in the sense that the only serious relief available to them would be if somehow they could get the tolling period extended to cover them as well. [00:26:35] Speaker 00: I think that's fair, Your Honor, but I think that is the situation in every case, you know, where people don't bring actions. [00:26:44] Speaker 00: This was a very public action. [00:26:47] Speaker 00: Our settlement in December of what was a very public action. [00:26:55] Speaker 01: At what point did it become more common knowledge that the tolling agreement was limited to the class representatives? [00:27:04] Speaker 01: and that the ability thereafter to pursue a separate damage claim was going to be limited to them. [00:27:09] Speaker 00: The tolling agreement is not limited to the class representatives. [00:27:14] Speaker 00: The tolling agreement is entirely separate from the class representatives. [00:27:18] Speaker 00: The class representatives preserve their action by bringing their case. [00:27:22] Speaker 00: and that case is going to be resolved in arbitration. [00:27:26] Speaker 00: The tolling agreement relates to other people, other putative class members who are going to bring, have brought suit. [00:27:37] Speaker 00: That was not something that related to the class representatives. [00:27:41] Speaker 01: The class representatives... The only distinction for the class representatives has to do with the pursuit of the claims through arbitration? [00:27:48] Speaker 00: Yes. [00:27:49] Speaker 00: The class representatives agreed [00:27:51] Speaker 00: as part of the settlement to pursue arbitration as opposed to continue to, and that was something that was publicly known long before they, long before they intervened. [00:28:04] Speaker 00: The- Can you address that one again? [00:28:07] Speaker 04: The tolling agreement, your friend on the other side said, yeah, I didn't know what the tolling agreement said, so I waited three months. [00:28:13] Speaker 04: Can you address that? [00:28:15] Speaker 04: I assume you think that was unreasonable, or can you address that point? [00:28:20] Speaker 00: I think it's fair that he did not know exactly what the tolling agreement said. [00:28:26] Speaker 00: I think that that was not a reason that he could delay intervention if he wanted to intervene. [00:28:31] Speaker 00: What he's saying is he wanted, and this goes back to the fact he said something different to the district court than what he's saying to this court. [00:28:38] Speaker 00: Before the district court, he said, I want to intervene because I want to understand the discovery. [00:28:48] Speaker 00: I want to get access to discovery. [00:28:50] Speaker 00: I want to intervene because I don't want the class representatives to give up their claims. [00:28:58] Speaker 00: Now what he's saying is, [00:29:00] Speaker 00: I want to intervene so that I can have one of my people come in and pick up the cudgel. [00:29:07] Speaker 00: And what the court said in Microsoft is that you don't have jurisdiction unless you have something that is – the class action has got to be tethered to a claim. [00:29:23] Speaker 00: Concurrence, which talks about the Article 3 problem. [00:29:27] Speaker 00: The majority didn't reach Article 3. [00:29:30] Speaker 00: They decided it on the statutory interpretation of 1291 and Rule 23F. [00:29:37] Speaker 00: But in the Concurrence opinion, they do deal with the Article 3 problem. [00:29:41] Speaker 00: And what they're asking here [00:29:43] Speaker 00: And what they were asking the district court in particular was allow us simply to come in untethered to any claim. [00:29:50] Speaker 00: They weren't asking the district court to do what they're now asking, what they're now saying they want to do. [00:29:55] Speaker 00: So what you're presented with is the district court looking at what the district court was being told acted entirely appropriately. [00:30:06] Speaker 00: I think even they sort of, by changing their argument to this court, recognized that what they were arguing to the district court didn't justify intervention. [00:30:17] Speaker 00: But that's the basis that the district court made a decision on. [00:30:20] Speaker 00: I respectfully suggest they can't now come to this court, argue other reasons for intervention, other bases for intervention, and then ask this court to reverse what the district court did based on a very justifiable interpretation of what they were presenting then. [00:30:41] Speaker 00: I think my time has expired. [00:30:42] Speaker 04: Great. [00:30:43] Speaker 04: Thank you. [00:30:43] Speaker 00: Thank you, Your Honor. [00:30:52] Speaker 03: Thank you, Your Honor. [00:30:53] Speaker 03: Just a couple of points. [00:30:55] Speaker 03: First of all, it is true that these clients were suing, but there is a statute of limitations issue. [00:31:02] Speaker 03: The court actually ruled that we were time barred. [00:31:04] Speaker 03: That's where we stand today. [00:31:05] Speaker 03: It did give us permission to amend the complaint to try to do some delayed discovery rule allegations that might save that, but as it stands right now, [00:31:13] Speaker 03: We're time-barred on those other cases, so this is very important to our clients. [00:31:18] Speaker 03: Second of all, in our motion to intervene, we did argue alternative reasons, and we even used that phrase in the headings. [00:31:24] Speaker 03: Alternatively, we should be allowed to intervene so we can get access to discovery. [00:31:27] Speaker 03: Alternatively, we should... [00:31:28] Speaker 03: We put these other things in there. [00:31:30] Speaker 03: But that doesn't take away the fact that we clearly, and everyone understood, wanted to intervene for that issue of the denial of the class certification. [00:31:37] Speaker 03: That's why Judge Rogers said, you should have then intervened when I denied it two years ago. [00:31:42] Speaker 03: I mean, there's no question that that was, this is not a changing position. [00:31:46] Speaker 03: That's always been our position. [00:31:48] Speaker 03: Another thing is, he mentioned, Google's council rep mentioned that, oh, we actually informed everyone of the settlement back in December. [00:31:56] Speaker 03: No, one paragraph, a preliminary notice that they had reached a settlement with not a single term being disclosed. [00:32:02] Speaker 03: It wasn't until April 1st that they actually filed the actual copy of the settlement agreement, and that's when everyone found out, oh, okay, they're getting rid of all this. [00:32:10] Speaker 03: They're waiving the right to do this. [00:32:12] Speaker 03: They're no longer going to appeal the denial of the class certification. [00:32:16] Speaker 03: It's just, that's just a faulty timeline. [00:32:18] Speaker 03: They gave a preliminary notice of one paragraph saying, hey, everyone, we should put off the trial days because we've settled. [00:32:24] Speaker 03: And we will file something. [00:32:25] Speaker 03: And then five months later, they did file something in a motion. [00:32:27] Speaker 03: And that's started all this activity. [00:32:31] Speaker 03: It is true that the tolling agreement is not for the class representatives. [00:32:35] Speaker 03: The tolling agreement just protects other Boy Schiller's clients that they've signed up that they're going to pursue damages just for their own clients, none of the rest of the class members. [00:32:44] Speaker 03: And so that is true that the tolling agreement goes beyond class representatives. [00:32:47] Speaker 03: It's just their own book of clients that they have. [00:32:50] Speaker 03: And so it leaves the other ones without any protection and no tolling agreement. [00:32:54] Speaker 03: I think that's one of the reasons why they said it wasn't relevant. [00:32:57] Speaker 01: We've all seen this a lot. [00:33:00] Speaker 01: in terms of objections to the class action terms. [00:33:06] Speaker 01: And I keep trying to categorize this and mistakenly use the term objectors before. [00:33:12] Speaker 01: That's how we most often see this. [00:33:14] Speaker 01: Why don't we see this complaint? [00:33:16] Speaker 01: Why didn't we see this complaint in that form in this case? [00:33:20] Speaker 01: Why wasn't there an objection based on the differential treatment? [00:33:25] Speaker 03: Yeah, that's a good point, and it goes back to something else that was raised. [00:33:28] Speaker 03: We talked about it being untethered, and we'd have to try claims in order to have the right to appeal. [00:33:32] Speaker 03: Well, that's not true. [00:33:33] Speaker 03: The same 23b2 class, the injunctive relief class, is identical to the 23b3 class. [00:33:39] Speaker 03: So all the interveners and the people that would want to appeal, other than the name representatives, they already had all their issues determined. [00:33:47] Speaker 03: On the injunctive relief, they're getting full settlement. [00:33:49] Speaker 03: We like the settlement agreement. [00:33:51] Speaker 03: We like the remedial things that are going on in the settlement agreement. [00:33:53] Speaker 03: And it pays the attorneys who did all their work, and we don't have a problem with that. [00:33:57] Speaker 03: The only thing that's outstanding is that the class representatives, the name plaintiffs are settling their damages claims, and only their damages claims, leaving the rest. [00:34:05] Speaker 03: to deal with their damages claims. [00:34:07] Speaker 03: Well, we don't have to try those in order to see if we can do it in a class vehicle. [00:34:11] Speaker 03: That's the whole point. [00:34:12] Speaker 03: We'd like to appeal the denial of class treatment. [00:34:15] Speaker 01: What that serves to me to be an objection to the settlement, because the settlement doesn't survive if you prevail. [00:34:24] Speaker 01: And I realize I'm taking over time, but settlement just doesn't survive. [00:34:27] Speaker 01: I never realistically thought it could. [00:34:29] Speaker 01: It was pretty clear. [00:34:30] Speaker 01: from your colleagues that know this settlement is gone, it might be redone somehow. [00:34:35] Speaker 01: But the motivation on the part of the defendant to settle is clearly driven by the terms which they succeeded in negotiating which do treat differentially Mr. Boyce's clients, whether they're class representatives or separately and absent class members. [00:34:56] Speaker 01: But that usually comes to us in the form of an objection. [00:35:00] Speaker 01: And I just have a hard time understanding why that was the proper opportunity and we didn't hear that objection. [00:35:09] Speaker 03: I think that it certainly could have been raised in an objection. [00:35:12] Speaker 03: I think we were trying to walk a fine line. [00:35:14] Speaker 03: We didn't want to disrupt the settlement agreement if we could. [00:35:17] Speaker 03: We wanted to preserve the one thing to be able to appeal. [00:35:20] Speaker 03: Hearing now, this is the first time they've ever said it publicly or never said it to a court before. [00:35:24] Speaker 03: Oh, yeah. [00:35:25] Speaker 03: Settlement is gone. [00:35:26] Speaker 03: Well, I kind of figured it out. [00:35:27] Speaker 01: So I don't think it was a big mystery. [00:35:30] Speaker 01: And so here we are. [00:35:33] Speaker 03: Yeah. [00:35:34] Speaker 03: I don't know if that's true or not. [00:35:36] Speaker 03: It certainly seems clear in hindsight, but we were trying to walk a delicate line not to disrupt the settlement agreement and all the good work and saying we want to step in to preserve this one right, which is to appeal the denial of the damages class. [00:35:48] Speaker 03: And maybe that was, but the question is, [00:35:51] Speaker 03: If we could have objected and we didn't, but we're also seeking to intervene at this point, which always happens after final approval, are we legally infirm for doing that? [00:36:02] Speaker 03: I guess that would be a question before this court. [00:36:04] Speaker 03: I don't think so. [00:36:04] Speaker 03: I think the case law is pretty clear. [00:36:06] Speaker 03: So even though we could have done both, perhaps, Belt and Suspenders objected and sought to intervene. [00:36:13] Speaker 03: assuming the objection would not be taken well by the court. [00:36:16] Speaker 03: But in any event, I think that procedurally, legally, I think we're in good standing to move to intervene in this context. [00:36:22] Speaker 03: And I don't agree at all, and it's in our briefing, with their interpretation of Microsoft versus Baker. [00:36:27] Speaker 03: That's a unique thing when someone settles or dismisses a case with a reservation of rights to revive it later. [00:36:32] Speaker 03: It's an end run around 1291 and 23F. [00:36:35] Speaker 03: It makes a mockery of it, and I think numerous cases which have interpreted Microsoft versus Baker said exactly that, including this court and that unpublished decision. [00:36:42] Speaker 03: from a couple years ago, which I cited in our briefs. [00:36:45] Speaker 03: But we don't have any of that here. [00:36:46] Speaker 03: These are truly separate parties, no reservation of rights. [00:36:49] Speaker 03: And so I don't think Microsoft versus Baker has overturned all that history of interveners in standing. [00:36:55] Speaker 03: And I would just submit that. [00:36:57] Speaker 03: Thank you very much, Your Honors. [00:36:58] Speaker 04: Thank you. [00:36:59] Speaker 04: Thank you all for the excellent advocacy. [00:37:01] Speaker 04: Case is submitted.