[00:00:00] Speaker 04:
And on this matter, Moe versus Geico Indemnity Company, case number 243271.

[00:00:06] Speaker 04:
Each side will have 15 minutes.

[00:00:08] Speaker 04:
And Mr. Buckley, if you would like to reserve time for rebuttal, please be aware that you're responsible for keeping track of that.

[00:00:14] Speaker 04:
But I do want to know if you are intending to reserve time.

[00:00:18] Speaker 01:
I would like to reserve five minutes, Your Honor.

[00:00:19] Speaker 04:
Five minutes, OK.

[00:00:22] Speaker 04:
OK, you may begin.

[00:00:24] Speaker 01:
May it please the court Dan Buckley on behalf of Brandon Moe the named class representative and the putative class This is our second visit to the court as courts aware the first go-around the this court remanded a

[00:00:44] Speaker 01:
to the district court on the question of subject and jurisdiction.

[00:00:49] Speaker 01:
GEICO, there's two GEICO's, GEICO Indemnity which was the liability carrier and government employees also a GEICO company was the adjusting company on behalf of GEICO Indemnity.

[00:01:02] Speaker 01:
So they're both and I'll refer to them as GEICO collectively.

[00:01:06] Speaker 01:
GEICO removed this case.

[00:01:09] Speaker 01:
after we filed the state court complaint alleging a putative class, there were no damages set forth in the complaint.

[00:01:16] Speaker 01:
That's not required in Montana.

[00:01:19] Speaker 01:
The removal papers were of concern to the Mo 1 court.

[00:01:25] Speaker 01:
I'll refer to the first decision as Mo 1 because it appeared that Geico had swept in all

[00:01:35] Speaker 01:
Montana bodily injury claims and auto auto claims every single one and So the mo one decision said look this is a narrowly defined class With limited damages to not only the named plaintiff Brandon mo and actually said looks like less than a thousand dollars to mr. Mo The the class itself looked like it would be of limited damages

[00:02:04] Speaker 01:
So MO 1 remanded to the district court to have an evidentiary hearing in which the defendant Geico would have the burden of proof by preponderance of the evidence under CAFA.

[00:02:16] Speaker 01:
Important to note that they only removed under CAFA.

[00:02:19] Speaker 01:
That's acknowledged.

[00:02:20] Speaker 01:
It's in the removal documents.

[00:02:22] Speaker 01:
So we went back down to district court.

[00:02:26] Speaker 01:
Before I get there on the evidence that was and was not submitted,

[00:02:30] Speaker 01:
Just a quick overview what this case is about.

[00:02:34] Speaker 01:
Montana's Unfair Trade Practices Act governs and sets out the duties for insurance companies.

[00:02:42] Speaker 01:
There are no duties to claimants in Montana.

[00:02:45] Speaker 01:
And once a claim is made, that UTPA is triggered and there's various duties.

[00:02:51] Speaker 01:
In 1999, there's a case called Ridley versus guarantee.

[00:02:54] Speaker 01:
I think we're pretty familiar with it.

[00:02:57] Speaker 04:
Okay, okay So the council let me just interrupt you and ask you because you're going to be running short on time here What were the assumptions that Geico relied on to establish the five million dollar amount in controversy?

[00:03:10] Speaker 01:
The assumptions were every single claim in Montana every single auto claim is that reasonable no, okay?

[00:03:17] Speaker 01:
Why not unreasonable?

[00:03:19] Speaker 01:
So Ridley is a very distinct set of cases, and it primarily applies to unrepresented claimants, which is why we filed the case.

[00:03:28] Speaker 01:
If a case comes into my office or other practitioners in this area, we know what Ridley is.

[00:03:34] Speaker 01:
We know to say, hey, advance pay the medical bills, advance pay the wages.

[00:03:40] Speaker 01:
Liability is reasonably clear.

[00:03:42] Speaker 01:
Causation is reasonably clear.

[00:03:44] Speaker 01:
Claimants who are unrepresented don't know that.

[00:03:46] Speaker 01:
So Geico instituted this business practice that says unless they demand it, use the magic words or a variety of it, we're just going to sit back.

[00:03:56] Speaker 01:
And we're not going to pay it.

[00:03:57] Speaker 01:
We're not going to advance pay it.

[00:03:58] Speaker 01:
And the reason that's harmful is because they can then leverage a full and final settlement.

[00:04:03] Speaker 01:
The poor claimant who can't pay their medical bills, who are suffering lost wages, especially where I live in Bozeman, where the cost of living is exorbitant, they need that wages.

[00:04:15] Speaker 01:
They need that advance payment.

[00:04:17] Speaker 04:
In your view, counsel, how should GEICO have determined which claimants were in the class?

[00:04:24] Speaker 01:
Well, we sent out discovery.

[00:04:26] Speaker 01:
We sent out numerosity discovery.

[00:04:29] Speaker 01:
Before summary judgment, the magistrate judge stayed any further ruling on we were going to file.

[00:04:35] Speaker 03:
What's the temporal frame of your claim?

[00:04:38] Speaker 01:
So it would be for first party claimants.

[00:04:41] Speaker 01:
So if I had a... No, no.

[00:04:43] Speaker 03:
Time.

[00:04:44] Speaker 03:
Time.

[00:04:45] Speaker 03:
What is the class time frame?

[00:04:47] Speaker 01:
So it would be eight years.

[00:04:48] Speaker 01:
Eight years.

[00:04:49] Speaker 01:
For first party claimants.

[00:04:51] Speaker 01:
Okay.

[00:04:51] Speaker 01:
and three years under Montana law for third-party claimants.

[00:04:57] Speaker 01:
In the class... I might correct myself.

[00:05:00] Speaker 01:
It might be two years for third-party claimants.

[00:05:02] Speaker 03:
If I'm not an insured with GEICO, but a GEICO insured... So they need to, at a minimum, look because of the longer period, the eight years.

[00:05:10] Speaker 03:
Yes.

[00:05:11] Speaker 03:
And within that eight-year frame, is your claim for the delay in payment only as opposed to the payment?

[00:05:21] Speaker 01:
So two answers to that judge the delay in the payment could Depending what the individual damages are Interest like in our case we had interest on the medical bills For claimants that are still processing we would say pay them pay the advanced payments right now So we could potentially have a number of claimants who have are still litigating well processing their claim with Geico

[00:05:50] Speaker 01:
And if we got class certification, we'd set out a notice saying, if you still have an open claim, you are now obligated.

[00:05:56] Speaker 03:
But I think we're getting a little far afield from how do we get to the CAFN number.

[00:06:01] Speaker 01:
CAFN number.

[00:06:01] Speaker 01:
I don't know how we get there because.

[00:06:03] Speaker 03:
Well, there's got to be a legitimate way for them in terms of what evidence they can propose.

[00:06:09] Speaker 01:
We sent out, there's form letters that our client got that said, hey, we're not a health insurance carrier.

[00:06:16] Speaker 01:
And so they said it to Mr. Moe's provider, go talk to your patient, okay?

[00:06:23] Speaker 01:
So we could see how many of those form letters they sent out.

[00:06:27] Speaker 01:
In today's world, with digital databases, it's easy enough, like in our claim file, we have notification of liability is reasonably clear, causation of injuries is reasonably clear, and medical bills and or wages have been received.

[00:06:44] Speaker 01:
you can easily do that with a digital search of the database.

[00:06:49] Speaker 01:
So you could find it.

[00:06:51] Speaker 01:
But they haven't done that.

[00:06:52] Speaker 01:
And we sent out numerosity discovery and we've attached it to the briefs and the excerpts of record.

[00:06:59] Speaker 00:
And here's... Mr. Buckley, if I can just follow up on George McEwan's question.

[00:07:02] Speaker 00:
Isn't it in terms of the definition of the class, the size of the proposed class, the remand back from the Ninth Circuit here was to try to determine not only the monetary

[00:07:13] Speaker 00:
requirements under CAFLA, but as well as in terms of the size of the proposed class, correct?

[00:07:18] Speaker 00:
Correct.

[00:07:19] Speaker 01:
And as I understand it, the calculation... If I could just clarify, the specific was the amount controversy.

[00:07:29] Speaker 01:
Yes.

[00:07:29] Speaker 00:
But the implication of the decision was to also... When it went down below and there was a report and recommendation from the magistrate judge, correct, to the district judge, is that correct?

[00:07:40] Speaker 00:
Recommendation I mean in terms of I guess my question is there appears to have been an assumption That every claimant to whom Geico paid money during the class period was a potential class member, right?

[00:07:52] Speaker 01:
Which is just I mean, it's just so outlandish There's a number of reasons Ridley might not even be implicated.

[00:08:00] Speaker 01:
It could be Big damages low limits.

[00:08:03] Speaker 00:
They paid the limits your poor your purported class then is essentially

[00:08:06] Speaker 00:
those with delayed payments, not everyone is entitled under Ridley, correct?

[00:08:10] Speaker 01:
A hundred percent, absolutely.

[00:08:12] Speaker 00:
So that's your class is specifically those that have suffered a delay in payment.

[00:08:17] Speaker 00:
Yes.

[00:08:18] Speaker 00:
Okay, that's the class.

[00:08:19] Speaker 03:
As opposed to those to whom the Ridley payment was just made outright because the company determined that it was a legitimate claim under Ridley.

[00:08:29] Speaker 01:
Or the unrepresented claimant has an uncle who's a personal injury lawyer and said you got to demand it.

[00:08:34] Speaker 03:
Right.

[00:08:35] Speaker 01:
You know, so that person's not a part of the class.

[00:08:38] Speaker 01:
Maybe Geico paid out the full policy limits right away.

[00:08:40] Speaker 01:
That person's not a part of the class.

[00:08:42] Speaker 01:
Maybe the person went and saw a lawyer and they demanded it right away.

[00:08:45] Speaker 01:
That person's not a part of the class.

[00:08:47] Speaker 01:
So it has nothing to do with claims, total claims paid.

[00:08:50] Speaker 04:
If I understand then, one way to figure out who those people are is to see where those form letters are sent.

[00:08:57] Speaker 01:
Yes.

[00:08:58] Speaker 01:
Okay.

[00:08:58] Speaker 01:
Yep.

[00:08:58] Speaker 01:
That's one way.

[00:08:59] Speaker 01:
But there's, there was a number of form letters that we asked for in numerosity discovery.

[00:09:04] Speaker 01:
And their discovery responses say it's unworkable.

[00:09:09] Speaker 01:
No objective way to determine.

[00:09:11] Speaker 01:
Liability isn't, we can't determine whether liability is reasonably clear.

[00:09:17] Speaker 01:
It would require an individualized inquiry.

[00:09:20] Speaker 01:
And then they say in their numerosity discovery, this is not susceptible to class treatment.

[00:09:26] Speaker 01:
Instead, they just use the total claims they've ever paid.

[00:09:29] Speaker 03:
Well, that seems to me,

[00:09:32] Speaker 03:
to not go to removal, but to go to class certification.

[00:09:36] Speaker 01:
Well, when it's a part of the numerosity discovery and a part of the amount in the controversy discovery, it's their burden approved to come forward with the evidence.

[00:09:43] Speaker 03:
Right, I understand, but what I'm saying is that, you know, you may or may not be able to certify a class given the vagaries of different claims, but in terms of the jurisdictional claim, they would at least need to document, you know,

[00:10:00] Speaker 01:
Document the number absolutely they have to come forward with that.

[00:10:04] Speaker 01:
I do want to come getting close to my reserve The district court relied pretty much solely on one word in our complaint Programmatic and the district court said the complaint uses the word programmatic so therefore it must be all claims But the complaint itself That is talking about a business practice that is

[00:10:29] Speaker 01:
honed in on and focused in on the Ridley issue so The fact that I use the word programmatic is only Programmatic as to the claims handling processes.

[00:10:43] Speaker 01:
We're talking about in the complaint I'm under five minutes.

[00:10:47] Speaker 01:
I barely touched what I wanted to talk about, but I think we hit the primary points, so okay Thank you.

[00:10:53] Speaker 04:
Thank you

[00:11:01] Speaker 02:
Good morning, Your Honor.

[00:11:02] Speaker 02:
May it please the court?

[00:11:03] Speaker 02:
My name is Kelly Dove, and I represent Geico and Geico Indemnity.

[00:11:07] Speaker 02:
To start by addressing some of the court's questions, I do think there's an intertwined issue here about the class definition and the difficulty of searching for this information that fits the class as described.

[00:11:22] Speaker 02:
For example, in the reply brief,

[00:11:26] Speaker 02:
Mr.. Moe states a true calculation of Geico's compensatory damage liability can only be determined Through an analysis of the claims files, and that's because this class Where people may be entitled to Ridley payments includes people who?

[00:11:44] Speaker 02:
were paid Ridley payments as Mr.. Moe was but on an allegedly delayed basis and

[00:11:49] Speaker 02:
or may have been entitled to Ridley payments but were not paid Ridley payments or may have not requested Ridley payments and they may not have requested Ridley payments because they did not want Ridley payments because as we discussed in our brief, it's a very common practice for people not to request Ridley payments because that interferes with their ability to receive health insurance payments and then

[00:12:15] Speaker 02:
auto insurance payments on top of those health insurance payments.

[00:12:19] Speaker 02:
So this is just an unworkable, there's no search for this because this is a fact-intensive inquiry where to discover if somebody might be entitled to Ridley payments and maybe was delayed in getting them or maybe shouldn't have had to request them, but there's lots of people who don't even want to request them, that's not a metric where... Did you bring in a statistician or somebody to take a look at the documents?

[00:12:43] Speaker 02:
I don't think there was a case file by case file analysis, but we did have a declaration by Mr. Antonacci who works at GEICO who ran these searches on different metrics.

[00:12:54] Speaker 03:
But it seems to me the argument here is you have the whole banana.

[00:12:59] Speaker 03:
You basically have every bodily injury claim which falls outside of, many of which might fall outside of this class.

[00:13:11] Speaker 03:
or the claims.

[00:13:13] Speaker 03:
And then there's, so that's, you're taking the whole thing.

[00:13:17] Speaker 03:
And then you're also saying, and we can't go claim by claim because of all these complications.

[00:13:23] Speaker 03:
But there's a procedure in between there.

[00:13:26] Speaker 03:
I mean, CAFE doesn't require absolute mathematical precision.

[00:13:31] Speaker 03:
But it seems to me, and this is what I'm trying to understand, is by submitting every bodily injury claim, you've just gone too far.

[00:13:39] Speaker 03:
I mean, you've made a universe.

[00:13:41] Speaker 03:
That is not the universe that intersects.

[00:13:44] Speaker 03:
If you imagine a Venn diagram, it doesn't intersect with the complaint.

[00:13:50] Speaker 03:
So isn't there a middle ground here that just hasn't been taken, a road not yet taken?

[00:13:56] Speaker 02:
Well, I think one way to take that road is to look at the data that we have pulled and that this is limited to bodily injury claims where there are going to be medical expenses.

[00:14:09] Speaker 02:
My friend here downplays the use of the word programmatic.

[00:14:12] Speaker 02:
I mean it's used more than a dozen times in the complaint.

[00:14:15] Speaker 02:
There's a stress on the fact that this is alleged to have been a business practice.

[00:14:20] Speaker 02:
That's in the statute, so it's not an accident that it's being alleged to be a business practice.

[00:14:25] Speaker 02:
But if you take the numbers

[00:14:27] Speaker 02:
which have been scaled to more appropriately address the first versus third party claims, to address the time period.

[00:14:36] Speaker 02:
Paragraph 51 of the complaint requests disgorgement of payments and profits.

[00:14:41] Speaker 02:
And so if you take any of these numbers and even cut it down, for example, the disgorgement of payments and profits is $10.8 million.

[00:14:51] Speaker 02:
If you take just 10% of that,

[00:14:53] Speaker 02:
We're there with that plus the for the 4x multiplier that we get from King and where the district court started if you take just 25% of

[00:15:04] Speaker 02:
of two of the other starting point numbers, first party claims over eight years or third party claims over three years, any one of those gets to that number.

[00:15:14] Speaker 02:
So while the grand, and the briefing on appellant side really focuses on these raw data numbers that capture everything, but I think when you look at the fact that any one of them, if sliced and whittled way down, even, like I said, even 10%,

[00:15:33] Speaker 02:
the disgorgement number 25% I mean there's many ways I want to say many ways to skin this cat and I realized that I was preparing for today there has to be a better phrase but there are many ways to skin this cat because these numbers are so large that you can take a very small percentage and still get to the CAFA to the CAFA number without going claim by claim and and to that point

[00:16:01] Speaker 02:
You know, we also have the 4x multiplier, which for these damages amounts is established in King because a jury awarded a 9x, and this court remitted it to a 4x.

[00:16:15] Speaker 02:
But if the damages amounts were lower, that multiplier could change.

[00:16:19] Speaker 02:
I mean, one of the reasons the King court remitted it to a 4x multiplier was because of the size of the damages.

[00:16:26] Speaker 02:
And I don't want to avoid this court's questions on the cap for removal.

[00:16:31] Speaker 03:
To me, your answer doesn't quite get at the real problem here in terms of using this universe of all these bodily injury claims, because it doesn't match what the complaint is about.

[00:16:49] Speaker 03:
And that's where I'm having some problem making that connection, just so you understand my question.

[00:16:54] Speaker 02:
Sure.

[00:16:55] Speaker 02:
And I think, one,

[00:16:57] Speaker 02:
One response, and I'm happy to come back to CAFO, but it's also to pivot to just diversity jurisdiction here, because that allows an alternate basis to look squarely at what's at issue.

[00:17:08] Speaker 02:
And here, Mr. Moe had asserted $1.1 million just on his own behalf.

[00:17:13] Speaker 02:
That's $100,000 in compensatory and a million in punitives.

[00:17:17] Speaker 02:
And he has now spent most of his reply brief and a good chunk of the opening brief

[00:17:22] Speaker 02:
walking back that number and saying that was bold and unrealistic.

[00:17:25] Speaker 00:
Mr. Dove did not, after the remand from this court back to the district court, essentially the plaintiff disavowed those figures, correct?

[00:17:31] Speaker 00:
He disavowed... In the amended complaint, basically he's seeking less than $50,000 combined in emotional distress and punitive damages, and so specifically states.

[00:17:41] Speaker 00:
Isn't that correct?

[00:17:42] Speaker 02:
The disavowal which happened in 2024 post-remand, I think is legally ineffective under

[00:17:48] Speaker 02:
under this court and Supreme Court jurisprudence.

[00:17:51] Speaker 02:
For example, under St.

[00:17:52] Speaker 02:
Paul Mercury and its progeny, a litigant cannot just amend its complaint to avoid federal jurisdiction past the removal period.

[00:18:02] Speaker 02:
That is good law.

[00:18:03] Speaker 02:
That has been in place a long time.

[00:18:06] Speaker 02:
Under this court's decision in saying when there is a post-judgment Question about jurisdiction the court looks at the jurisdiction at the time of judgment the removal was based upon CAFA though was it not it was it was based on CAFA it also listed diversity but under saying the removal does not have to be on the basis of

[00:18:25] Speaker 02:
of what you look at at judgment.

[00:18:27] Speaker 02:
What you look at at judgment is whether this court had jurisdiction at the time of judgment.

[00:18:32] Speaker 02:
And so even if the removal was federal question, but at the time of removal, there's diversity.

[00:18:37] Speaker 02:
The court will find removal and that is both on the basis that of course subject matter jurisdiction has to exist But the court it's the end of its decision in saying made clear that it disfavors the extreme waste that would occur if Parties were allowed to just litigate all the way through the termination of a claim And then and then be able to just walk away from it now of course again there needs to be subject matter jurisdiction But it does not need to match

[00:19:05] Speaker 02:
Basis for removal so our removal papers to be technical did list diversity And it said and kappa clearly our primary intent was kappa, but there was garden variety Diversity jurisdiction at the time of judgment Council is there any requirement though that Geico say the 1.1 million dollars that Mr.. Moe was seeking was reasonable.

[00:19:28] Speaker 04:
I mean people

[00:19:29] Speaker 04:
plaintiffs often say this is a 25 million dollar case.

[00:19:33] Speaker 04:
Yes.

[00:19:34] Speaker 04:
Which is absurd sometimes.

[00:19:36] Speaker 02:
That's correct.

[00:19:37] Speaker 02:
And the law does say if there's really no basis, no reasonable basis for the number and it's true pie in the sky, then a plaintiff's assertion of its damages amount may not be able to carry the day.

[00:19:47] Speaker 02:
That's not so here.

[00:19:49] Speaker 02:
And I think for two reasons.

[00:19:50] Speaker 02:
Number one, I think the disavowal is legally ineffective because it's post-judgment.

[00:19:55] Speaker 02:
There's not one case that says you can disavow your damages amount on a post-judgment basis.

[00:20:00] Speaker 04:
So even if they don't disavow it, though, if it's unreasonable just on its face, do they also need to have disavowed it prior to anything?

[00:20:10] Speaker 04:
I mean, I see those as two separate

[00:20:13] Speaker 02:
So I don't think they could have effectively disavowed it prejudgment.

[00:20:17] Speaker 02:
And one reason is here's why.

[00:20:19] Speaker 02:
Now that we're in this posture, they're like, oh, we weren't really trying to get any money at all.

[00:20:25] Speaker 02:
We had almost nothing.

[00:20:27] Speaker 02:
Those numbers were pie in the sky.

[00:20:29] Speaker 02:
But they weren't for two reasons.

[00:20:31] Speaker 02:
One is those numbers are not pie in the sky when you look at what juries actually award incomparable verdicts.

[00:20:38] Speaker 02:
And one example is in the King case I just mentioned, because in that case, which was King v. Geico, which was a Montana case in which the district court used for its punitive damages multiplier,

[00:20:49] Speaker 02:
That case, the plaintiff was awarded for minimal economic damages, $100,000 in compensatory damages under the UTPA, $100,000 in emotional distress damages, and $66,000 in attorney's fees, and then the jury award her a 9X multiplier, which this court remitted to four, but left those damages amounts alone.

[00:21:13] Speaker 02:
So the fact that the king plaintiff, who had very similar claims,

[00:21:17] Speaker 02:
And this court found that the conduct of the defendant was not even so egregious as to warrant that multiplier.

[00:21:24] Speaker 02:
The King outcome represents that Mr. Moe's assertion of 100,000 in compensatory damages and 1 million in punitives is far from pie in the sky.

[00:21:34] Speaker 02:
It's reality.

[00:21:35] Speaker 02:
It was in King.

[00:21:38] Speaker 02:
While I think the disavowal of his damages is legally insignificant, I think it is telling that it isn't zero.

[00:21:47] Speaker 02:
And what he has here in his further excerpts of record at four on his disavowal is he claims $225 in interest in medical bills, $5,000 for harm to credit, $10,000 for mental and emotional distress, and punitive damages of $25,000.

[00:22:04] Speaker 02:
Now, of course, it's our position.

[00:22:07] Speaker 02:
not only ineffective but orchestrated but Notice he's claiming more than $15,000 just even in his disavowal even where he's saying oh, no I don't really mean 1.1 million.

[00:22:21] Speaker 02:
He's still claiming a total of 40 15 of which is Compensatory, but then if you take the 4x multiplier from King what this should really be is 60 and at this damages level

[00:22:34] Speaker 02:
the multiplier might well be higher.

[00:22:37] Speaker 02:
And then you're right there with attorney's fees.

[00:22:40] Speaker 02:
So even his disavowal should be 60 using the 4X multiplier, which he never challenged.

[00:22:47] Speaker 02:
And really, it all should be more than that, because this is all a fiction.

[00:22:51] Speaker 02:
But either way, his $100,000 plus $1 million in compensatory gets us there.

[00:22:57] Speaker 02:
It is absolutely grounded in reality.

[00:23:00] Speaker 02:
It's grounded in King.

[00:23:01] Speaker 02:
We were entitled to rely on it.

[00:23:03] Speaker 02:
It is sufficient to establish this court's subject matter jurisdiction under Singh and at the time of judgment.

[00:23:09] Speaker 02:
And if the court has concerns as a parent about how the numbers in the CAFA analysis work out, I think we absolutely get there with diversity jurisdiction.

[00:23:19] Speaker 03:
Well, I mean, if we disagreed with you on CAFA, which then also imposes a whole series of requirements once you remove under CAFA, then your argument is, so what?

[00:23:31] Speaker 03:
We're in federal court under diversity jurisdiction.

[00:23:33] Speaker 02:
Exactly.

[00:23:34] Speaker 02:
And the court below decided to adjudicate the individual claims before moving on to all of the issues with class certification and the class definition.

[00:23:44] Speaker 02:
So right now what we have is a judgment granting a motion for summary judgment in our favor and against Mr. Moe on basically his individual, the merits of the individual claims.

[00:23:56] Speaker 02:
So we are just asking for that to be affirmed because

[00:24:00] Speaker 02:
The court never got to a class analysis, and the court did have jurisdiction at the time judgment was entered in Geico and Geico indemnities favor.

[00:24:09] Speaker 04:
I want to take you back to the CAFA analysis.

[00:24:13] Speaker 04:
What do you make of your friend on the other side talking about the form letters as a way to figure out a more accurate number for the class?

[00:24:21] Speaker 02:
I think it would still be vastly under inclusive because the form letters indicate a situation where there's been some reason for a guy who to identify somebody who maybe is entitled to advance payments and communicate with them.

[00:24:37] Speaker 02:
And this has also been a poor vehicle for some of these questions because as our brief laid out, this case had a protracted history of

[00:24:48] Speaker 02:
Geico reaching out to Mr. Moe, Mr. Moe not communicating for 10 months, Mr. Moe hiring counsel, his counsel not communicating for six months.

[00:24:56] Speaker 02:
At one point, you know, Geico asked, do you want advance payments?

[00:24:59] Speaker 02:
By then it was 2017.

[00:25:01] Speaker 02:
And on top of that, Mr. Moe ratified Geico's contact

[00:25:06] Speaker 02:
conduct here because Geico said okay we're gathering the rest of your medical documents and then we'll process your claim and he said great and that is a fact that is undisputed.

[00:25:18] Speaker 02:
So Mr. Moe actually ratified how Geico processed his claim here and only after the fact has brought this claim which for the reasons I was discussing earlier I think is untenable in terms of identifying class members and that

[00:25:35] Speaker 04:
Untenability and difficulty in itself is you know it's just something the district court had no cause to reach after granting summary judgment I want to ask you about Ridley now when in your mind under Ridley When our guy goes obligations triggered does Insured or a third-party insured have to say I want my payments pursuant to Ridley or is it just as mr. Moe did here send you some bills and

[00:26:01] Speaker 02:
Think it's it's it's not a bright line, but but we definitely are our witnesses testified And it was unrebutted that we don't require any magic words people don't have to say I want Ridley payments It's enough to send a request for payments ask for advanced payments anything that communicates I want to be paid these payments.

[00:26:21] Speaker 04:
There's no magic words There's nothing didn't mr.. Moe do exactly that by having the physical therapists and the bills to Geico I

[00:26:29] Speaker 02:
No, we don't think so because he also submitted his medical insurance information, which is often billed first for the reasons I was describing.

[00:26:38] Speaker 02:
And so just because medical bills are sent directly to GEICO does not trigger that because as I mentioned, a lot of people don't want GEICO to pay their medical bills directly because it interferes with the working of their health insurance.

[00:26:50] Speaker 04:
So then what would trigger it?

[00:26:52] Speaker 02:
Just to say I want these bills paid.

[00:26:54] Speaker 02:
anything to that effect.

[00:26:56] Speaker 02:
But just because GEICO receives bills directly from the medical provider, that doesn't trigger it because there's still too much ambiguity about what that person wants to have happen with those bills.

[00:27:07] Speaker 02:
If Mr. Moe had sent the bills and said, please pay these GEICO, that would have triggered it.

[00:27:12] Speaker 02:
We completely accept that.

[00:27:13] Speaker 02:
No magic words, nothing special.

[00:27:16] Speaker 02:
But that didn't happen here.

[00:27:17] Speaker 02:
And when he did ask, finally, through counsel in 2017,

[00:27:22] Speaker 02:
Geico did almost immediately pay them.

[00:27:24] Speaker 02:
It was very quick at that point.

[00:27:26] Speaker 02:
Until then, they had been playing a lot of phone tag and sending letters.

[00:27:31] Speaker 04:
So if they're sent by the medical providers directly, that doesn't trigger it?

[00:27:36] Speaker 02:
That's right.

[00:27:36] Speaker 02:
And that is one reason they sent a letter to say, what would you like us to do here?

[00:27:43] Speaker 02:
We need more.

[00:27:43] Speaker 02:
So I know my time is up, and thank you very much.

[00:27:45] Speaker 02:
Thank you, counsel.

[00:28:00] Speaker 01:
So I would like to address first the individual jurisdiction.

[00:28:06] Speaker 01:
As the court recognized, the initial preliminary statement of damages early on in the case, it was a bold, optimistic, puffery, if you will.

[00:28:19] Speaker 01:
And I don't like standing here before the Ninth Circuit and saying that, but that's what it was.

[00:28:25] Speaker 00:
I once had a- Would not be the only lawyer to commit that sin, Mr. Berkeley.

[00:28:29] Speaker 00:
Right?

[00:28:29] Speaker 01:
Yeah.

[00:28:30] Speaker 01:
So I think what's important is we then go through a couple years of litigation, including two depositions of Mr. Moe, extensive written discovery.

[00:28:41] Speaker 01:
And by the time GEICO moves for summary judgment on the underlying case, they take the position in their summary judgment brief after discovery, after depositions,

[00:28:54] Speaker 01:
that Mr. Moe had suffered no actual damages.

[00:28:59] Speaker 01:
They relied on that to get themselves out of the UTPA case, which requires, quote, actual damages.

[00:29:06] Speaker 03:
You know, the difficulty is that jurisdiction is established at the beginning of a case.

[00:29:12] Speaker 03:
And so we have this odd situation where you make

[00:29:19] Speaker 03:
a pie in the sky request for damages.

[00:29:24] Speaker 03:
But it seems to me that you can't then like after the facts say, well, now there's jurisdiction or not jurisdiction because really our damages are less.

[00:29:38] Speaker 03:
So the cases don't let you establish jurisdiction on a rolling basis.

[00:29:44] Speaker 03:
What's your response to that?

[00:29:46] Speaker 01:
I appreciate the court's comment.

[00:29:49] Speaker 01:
There are cases out there that say, you know, sometimes you bring a defendant in, a defendant goes out, a third party comes in, so cases do, you know, see flux as time goes on.

[00:30:00] Speaker 01:
And there are cases that say, well, we lost jurisdiction, but then we had jurisdiction at the time of final judgment.

[00:30:07] Speaker 01:
So you can look at the time of final judgment.

[00:30:10] Speaker 03:
You can, but those are very different cases, the circumstances.

[00:30:13] Speaker 03:
So what's your best case for saying,

[00:30:16] Speaker 03:
After the fact, I can now submit a new declaration as to an amount less than $75,000 or jurisdiction.

[00:30:25] Speaker 01:
There's strong case law on that, including the Cohen decision right from this court a number of years ago.

[00:30:32] Speaker 01:
The cases that GEICO relies on is amendment to pleadings.

[00:30:36] Speaker 01:
So the plaintiff, some states require you to put in your statement of damages in your complaint.

[00:30:42] Speaker 01:
Montana doesn't require that.

[00:30:44] Speaker 01:
And then it gets bumped, and then the plaintiff says, oh, wait a second, I'm going to amend my pleading.

[00:30:50] Speaker 01:
That's not the case here.

[00:30:51] Speaker 01:
We have this bold, optimistic, puffery sort of preliminary statement of damages.

[00:30:58] Speaker 01:
Then we have Geico in the interim saying he has suffered no actual damages, relied on that statement of fact.

[00:31:06] Speaker 01:
to secure a summary judgment.

[00:31:07] Speaker 01:
Now the district court didn't reach that because they said Ridley didn't apply under our theory.

[00:31:13] Speaker 01:
And so when we went back down to remand,

[00:31:18] Speaker 01:
You know, I looked at the Cohen case.

[00:31:21] Speaker 01:
I looked at the other cases that including district court cases that we have cited that says a plaintiff may disavow and should disavow if the initial statement of damages is not valid.

[00:31:36] Speaker 01:
It's not reasonable and it was it's not reasonable and and Geico's admitted that.

[00:31:40] Speaker 00:
Does that analysis include

[00:31:43] Speaker 00:
Essentially, the determination of the size of the proposed class, once you've had some discovery, meaning that you really are focusing upon delay damages and readily damages in terms of those matters in which the liability was reasonably clear, which clearly doesn't include the people who ultimately did receive payment, but the liability was not initially reasonably clear, it seems to me.

[00:32:04] Speaker 01:
Right, right.

[00:32:04] Speaker 01:
I mean, you could have that situation.

[00:32:06] Speaker 01:
Liability is not reasonably clear.

[00:32:07] Speaker 01:
Causation, maybe there's pre-existing conditions.

[00:32:10] Speaker 01:
and maybe causation isn't clear and so really wouldn't apply.

[00:32:13] Speaker 01:
It is, as Moe once said, of narrowly defined class with limited damages.

[00:32:19] Speaker 01:
And so we modified our statement of damages and disavowed our preliminary.

[00:32:25] Speaker 01:
And we did this before Judge Morris ordered mediation, before he issued his decision on subject matter jurisdiction.

[00:32:33] Speaker 01:
And we filed our disavowalment before mediation with magistrate Judge John Johnston.

[00:32:40] Speaker 01:
and it still didn't settle.

[00:32:43] Speaker 01:
Our individual damages are under $75,000.

[00:32:49] Speaker 00:
My point is, follow up on Judge McEwen's question, is that analysis necessarily will have to ensue with respect to trying to define what the proposed class is in terms of exactly through discovery.

[00:32:59] Speaker 00:
What is the proposed class?

[00:33:00] Speaker 00:
How many actually are claiming damages for delayed payment under Ridley and some that's just not feasible, that there were clearly liability issues in question as it plays out?

[00:33:10] Speaker 01:
Right.

[00:33:11] Speaker 01:
And we don't know because we asked and discovered and they're not giving us the answers.

[00:33:16] Speaker 04:
I'd like you to address your friend on the other side's discussion on the King case and why your what, you know, your pie in the sky puffery is actually based in reality where she mentioned that 1.1 million is not that far out of reach.

[00:33:35] Speaker 01:
Well, we have 200 and some odd dollars in interest.

[00:33:39] Speaker 01:
That he lost because his medical bills were turned over we have Some lost wages of two hundred and some dollars we have emotional distress damages that I think we claimed like ten thousand dollars in our disavowment and restatement of the damages I you know There's there's cases out there on both sides that would say a jury might award.

[00:34:04] Speaker 01:
Mr. Moe a thousand bucks or two thousand bucks and

[00:34:08] Speaker 01:
You know, but we have affirmatively stated as we're allowed to and as directed actually by the Ninth Circuit and other district court cases to amend those damages, especially after discovery and depositions.

[00:34:24] Speaker 01:
I mean, we just realized we're not going to get $1.1 million.

[00:34:28] Speaker 01:
That's just not going to happen.

[00:34:29] Speaker 01:
Okay.

[00:34:30] Speaker 04:
Counsel, you are well over your time.

[00:34:33] Speaker 01:
Could I make one comment?

[00:34:36] Speaker 04:
I'll give you 10 seconds.

[00:34:37] Speaker 01:
Okay, they're citing paragraph 51 of our complaint to say we're saying asking for discouragement of premiums That is absolutely incorrect.

[00:34:45] Speaker 01:
It's discouragement of unpaid release for those claims that have not yet settled for the punitive Potential punitive class members.

[00:34:54] Speaker 04:
Okay.

[00:34:54] Speaker 04:
Thank you counsel.

[00:34:55] Speaker 04:
Thank you All right.

[00:34:57] Speaker 04:
Thank you both.

[00:34:58] Speaker 04:
This matter is now submitted