[00:00:03] Speaker 01: Case number 19-7058, enraged domestic airline travel antitrust litigation. [00:00:09] Speaker 01: Ms. [00:00:10] Speaker 01: St. [00:00:10] Speaker 01: John for the appellants. [00:00:11] Speaker 01: Ms. [00:00:11] Speaker 01: Edwards, amicus curiae. [00:00:13] Speaker 01: Ms. [00:00:13] Speaker 01: Kenny for the appellees. [00:00:20] Speaker 01: Ms. [00:00:20] Speaker 01: St. [00:00:20] Speaker 01: John is now. [00:00:21] Speaker 01: Good morning. [00:00:24] Speaker 00: Good morning. [00:00:25] Speaker 00: May it please the court, Anna St. [00:00:27] Speaker 00: John on behalf of appellants, Michael Frank Bednars and Theodore H. Frank. [00:00:31] Speaker 00: Frank and Ben ours are objecting class members who are seeking to protect their rights to appeal the approval of two settlements that potentially provide them and other class members with zero relief. [00:00:43] Speaker 00: The class notice here specifically leaves open the possibility that the entire settlement fund after attorneys fees and class representative awards will be paid to third parties aside prey. [00:00:54] Speaker 00: The district court failed to analyze this distribution issue and the claims process as rule 23 E2C2 requires. [00:01:02] Speaker 05: Didn't the district court say that the district court was doubtful there would be such an award but if there would, there would be another order and additional notice? [00:01:13] Speaker 00: both class council and the district court expressed the view that they were not inclined to have the settlement. [00:01:19] Speaker 05: No, no, no. [00:01:20] Speaker 05: My question was, didn't the district court say if there's going to be a sign for a word, there will be additional numbers? [00:01:26] Speaker 00: Yes, your honor. [00:01:27] Speaker 00: The court did say that. [00:01:28] Speaker 05: So doesn't that protect you? [00:01:31] Speaker 00: No, your honor, for two reasons. [00:01:33] Speaker 00: First, a right notice does not necessarily guarantee a right to opt out of the settlement or to object. [00:01:42] Speaker 05: And if- You could challenge it then when we have a real order. [00:01:46] Speaker 05: I mean, this may never happen, right? [00:01:48] Speaker 05: It's conceivable there'd never be a Cypra award. [00:01:51] Speaker 00: That's right, Your Honor. [00:01:52] Speaker 00: But if this court affirms final approval of the settlement, class members will have no recourse if in fact the settlement is all awarded to Cypra. [00:02:02] Speaker 05: And so the problem- I don't understand that. [00:02:04] Speaker 05: I don't understand that. [00:02:06] Speaker 05: Explain that to me. [00:02:08] Speaker 00: Okay. [00:02:08] Speaker 00: Yes, of course, Your Honor. [00:02:10] Speaker 00: If we don't know at this stage, whether or not any settlement funds or all settlement funds will be paid to third parties of Cypriot. [00:02:20] Speaker 00: However, if the court affirms the approval of the settlement here, then class members will not have an opportunity to opt out of the settlement. [00:02:28] Speaker 00: Their claims will have been released. [00:02:30] Speaker 00: And the settlement funds that represent their money, the value of their claims that were released, [00:02:37] Speaker 00: will go to organizations and causes that they may not wish to support. [00:02:44] Speaker 00: Some of the biggest abuses inside price settlements is that funds go to organizations that the defendant is already donating to, which is essentially just a change in accounting entries. [00:02:56] Speaker 00: It doesn't actually cost the defendant anything, or it's an organization affiliated with class counsel, maybe an alma mater or an organization where they sit on the board of directors. [00:03:05] Speaker 00: And so having the opportunity to object and opt out addresses this conflict of interest. [00:03:12] Speaker 00: And it allows class members to avoid having their monies causes they disagree with in violation of the first amendment. [00:03:21] Speaker 02: If the sun, can you try, can you try again though? [00:03:24] Speaker 02: Why can't you just object to a Cypriot order when there is a Cypriot order? [00:03:29] Speaker 00: So even if a class member could object, that doesn't mean the court's going to agree with the objection. [00:03:35] Speaker 00: they still may be stuck having their money going to causes they don't want their money going to. [00:03:39] Speaker 00: Whereas if they can opt out of the settlement, they keep their claims. [00:03:43] Speaker 00: Their claims will not be released by the settlement, and they can do what they want to with those claims. [00:03:47] Speaker 00: They can either just let them die or bring them in a separate lawsuit. [00:03:53] Speaker 00: We have the issue here where the parties change their mind on another issue. [00:04:02] Speaker 00: we saw the party switch positions on the issue of finality before the district court. [00:04:07] Speaker 00: The court questioned both sides as to the need for, or whether it could hold off on approving the settlements until the other defendants settled or otherwise resolve their cases so that it would have full information about the distribution of the fines. [00:04:22] Speaker 00: Class counsel and defendants were adamant that the lack of finality could jeopardize the settlement and the cooperation that defendants are providing under the settlement. [00:04:33] Speaker 00: The settlement requires the parties to seek a 54B judgment and the proposed final approval order included language making 54B findings. [00:04:44] Speaker 00: The district court specifically relied on those representations about finality in its final approval order. [00:04:50] Speaker 02: Sorry to interrupt you, but am I remembering correctly that at a certain point in this appellate process, it was your position that we don't have jurisdiction [00:05:03] Speaker 02: and then now it's your position that we probably do, although if we don't, there's a certain way that you want us to say that. [00:05:11] Speaker 02: If my memory is right, what accounts for the change of position? [00:05:15] Speaker 00: Well, we think it's ambiguous. [00:05:17] Speaker 00: Under a strict reading of 1291 and 54B, we fully acknowledge that the district court did not make the findings under 54B that would allow an appeal of a partial [00:05:33] Speaker 00: a partial settlement to be appealed. [00:05:37] Speaker 00: Looking at it a little more closely and thinking about how this progresses, if we are not allowed to appeal now, I don't think it's foreclosed entirely by the case law. [00:05:47] Speaker 00: I think that 1291 can be given a functional reading, especially under Gelboin v. Bank of America. [00:05:54] Speaker 03: But are there any cases giving it that type of functional reading in the circuit or the Supreme Court? [00:06:00] Speaker 00: not this specific type of functional reading, your honor, there's no case law directly on this issue. [00:06:06] Speaker 00: And that's what makes this a bit of a hard case for us. [00:06:09] Speaker 03: And we're really... I mean, so ordinarily parties who seek to appeal, they have a burden of establishing jurisdiction, but you're telling us that jurisdiction is uncertain. [00:06:20] Speaker 03: So have you not even met your burden of moving ahead with this appeal? [00:06:28] Speaker 00: Well, we... [00:06:29] Speaker 00: have provided grounds on which there could be jurisdiction, but we want to be completely honest with the court in that there's no case law directly on point saying that there is definitively jurisdiction. [00:06:42] Speaker 00: So in our case. [00:06:44] Speaker 05: Sure. [00:06:46] Speaker 05: Yeah. [00:06:46] Speaker 05: I was just agreeing with you. [00:06:49] Speaker 00: Yes, your honor. [00:06:50] Speaker 05: I appreciate your candor. [00:06:51] Speaker 05: No, very candid. [00:06:53] Speaker 05: That's extremely helpful to us. [00:06:54] Speaker 05: But, but [00:06:56] Speaker 05: Given that Judge Rao's question is pretty important, given that doubt, how can we find jurisdiction here? [00:07:04] Speaker 00: Well, I think that there are arguments that do support jurisdiction, and I'm sure amicus will address those more fully. [00:07:12] Speaker 00: But here, there is a question of what happens to our appeal rights if the settlements with the remaining two defendants, Delta and United, don't go through in the MDL context. [00:07:24] Speaker 03: an amicus doesn't have a burden of establishing jurisdiction. [00:07:27] Speaker 03: I mean, that's what we've asked them to do. [00:07:29] Speaker 03: And they have done that. [00:07:31] Speaker 03: But it's your obligation, right? [00:07:34] Speaker 03: It's your client's obligation to establish jurisdiction. [00:07:39] Speaker 00: Well, we've presented arguments on which we believe jurisdiction could be found. [00:07:44] Speaker 05: Tell us your best argument for jurisdiction. [00:07:47] Speaker 00: Our best argument is that [00:07:50] Speaker 00: The district court's order is called expressly a final approval order. [00:07:55] Speaker 00: It finally adjudicates all of the claims of two defendants in this case. [00:08:01] Speaker 00: Southwest and American are out of the case completely. [00:08:04] Speaker 00: That's a final decision under 1291, except for the fact that we have this unique MDL context where there are two defendants still litigating claims in the district court. [00:08:19] Speaker 00: So 1291 it has been president establishes that it should be given a flexible functional reading. [00:08:25] Speaker 00: And here you can definitely take the final as a final decision from which class members heal. [00:08:35] Speaker 03: John, could you have taken another procedural approach such as filing a protective appeal. [00:08:43] Speaker 03: Or was there some other mechanism you could have used in a situation like this where the timing for appeal was uncertain? [00:08:51] Speaker 00: We would welcome the interpretation of our appeal as a protective appeal. [00:08:57] Speaker 00: We were very uncertain as to whether the parties were going to ask for a 54B judgment and whether it would foreclose our rights to appeal at any point. [00:09:08] Speaker 00: We would welcome [00:09:10] Speaker 00: that approach, we would welcome Brightline rules about when class member objectors and MDLs are required to appeal. [00:09:18] Speaker 00: The parties could change their positions later. [00:09:20] Speaker 00: And so we really were in a quandary about when to appeal and how to protect our appellate rights. [00:09:34] Speaker 00: So if the court does hold that there is no jurisdiction, we do ask that [00:09:39] Speaker 00: it expressly state that the final approval order is not a final decision under 1291 so that we don't have collateral litigation later over whether or not our subsequent appeal is timely. [00:09:53] Speaker 05: And you said, I understand your brief. [00:09:57] Speaker 05: You feel you'll be completely protected if we enter an order saying we don't have jurisdiction because there's no final order here, right? [00:10:05] Speaker 00: Partially. [00:10:06] Speaker 00: There is the issue that if the MDL falls apart, [00:10:09] Speaker 00: we don't know what would trigger the final decision from which we could subsequently appeal. [00:10:17] Speaker 05: You mean if the cases all go back to the originating court? [00:10:20] Speaker 00: Yes, Your Honor. [00:10:21] Speaker 00: Well, the cases are transferred back to the originating courts. [00:10:25] Speaker 00: You know, is it the transfer order? [00:10:26] Speaker 00: Is it the first judgment in the separate cases that go back? [00:10:34] Speaker 05: Suppose our order says, you know, [00:10:37] Speaker 05: There's no final judgment here, and we expect the district court should send the case back to the originating courts to enter a 54B order. [00:10:45] Speaker 05: Does that protect you? [00:10:48] Speaker 00: The order would state that if it were to stay. [00:10:52] Speaker 05: The order would state that our determination that it's not final is on the basis of the assumption that if it does go back to the originating courts, the district court will issue a 54B order. [00:11:03] Speaker 00: I think that would be very helpful, Your Honor. [00:11:08] Speaker 05: Okay, why don't we hear from amicus since we're talking about jurisdiction. [00:11:15] Speaker 05: Okay. [00:11:16] Speaker 05: Thank you, your honor. [00:11:18] Speaker 06: Erica Hashimoto as court appointed amicus in support of jurisdiction. [00:11:22] Speaker 06: And with the court's permission, Hallie Edwards, a third year law student at Georgetown will make the argument in support of jurisdiction. [00:11:31] Speaker 06: Thank you. [00:11:34] Speaker 04: Thank you. [00:11:35] Speaker 04: Good morning, your honors and may it please the court. [00:11:38] Speaker 04: This court faces a novel question. [00:11:40] Speaker 04: In an MDL, is an order granting final approval to two settlement agreements with two out of four defendants, and then dismissing the settling defendants with prejudice, final under section 1291, allowing objectors to those settlement agreements to appeal now. [00:12:00] Speaker 04: Under the Supreme Court's decision in Gelboim, the answer is yes. [00:12:05] Speaker 04: Bednars and Frank, the objectors, entered the litigation solely to object to the American and Southwest settlements. [00:12:12] Speaker 04: They are not parties to any of the 105 cases underlying the MDL. [00:12:18] Speaker 04: Under Section 1407, those cases will be remanded to their originating districts at the close of pretrial proceedings. [00:12:25] Speaker 04: If the objectors cannot appeal the settlement determination now, [00:12:31] Speaker 04: they face an MDL-specific quandary concerning the possibility of later appeal. [00:12:36] Speaker 04: Because they were not parties to any of those underlying cases, it is entirely unclear where or if or when they could appeal after the cases are remanded. [00:12:48] Speaker 04: In Gelboim, the Supreme Court recognized such jurisdictional quandaries can be solved with a simple solution, and that is immediate appeal. [00:12:57] Speaker 04: The order is final under 1291 because it was titled the final order and fully resolved American and Southwest role in the litigation, dismissing them with prejudice and setting the money owed on their liability. [00:13:13] Speaker 05: This case though is different from Gilboin. [00:13:17] Speaker 05: The objectors here are not, they're not plaintiffs. [00:13:23] Speaker 05: That was a case where there was a, they dismissed it [00:13:26] Speaker 05: one of the many cases. [00:13:29] Speaker 05: Here, the objectors are not parties to any case, and they're not part of any of the underlying cases. [00:13:36] Speaker 05: And unlike in Gelboin, we have a consolidated complaint here. [00:13:41] Speaker 05: The case seems completely different from Gelboin to me. [00:13:45] Speaker 05: Is that not right? [00:13:47] Speaker 04: That's exactly right, Your Honor. [00:13:48] Speaker 04: This case is much more complicated than Gullboim. [00:13:51] Speaker 04: Bednars and Frank are not plaintiffs. [00:13:53] Speaker 04: They are objectors to the litigation. [00:13:55] Speaker 04: But under the Supreme Court's decision in Dublin, objectors are parties to appeals for the limited purpose of appealing settlement determinations. [00:14:07] Speaker 04: And they're not full-fledged parties to the underlying case. [00:14:11] Speaker 04: Moreover, under this... Go ahead. [00:14:15] Speaker 04: Oh, no problem. [00:14:16] Speaker 04: Under this court's decision last year in Moloch v Whole Foods, putative class members are not parties to litigation, which is important because these would be the Delta and United litigation against which no classes have been certified. [00:14:31] Speaker 04: Bednars and Frank have no connection. [00:14:32] Speaker 04: So those two things taken together, along with American and Southwest finality, gives us finality under 1291 as to all claims and all parties relevant to Bednars and Frank's objection within the MDL. [00:14:50] Speaker 04: Under Galboim, the question of which claims and parties matter for the 1291 analysis is a practical determination building on Supreme Court case law that for decades has recognized a practical rather than a technical construction of 1291. [00:15:11] Speaker 04: In Gullboyne, the court recognized that the possibility of losing later appeal is a reason to find 1291 finality when those quandaries exist. [00:15:22] Speaker 04: Here the quandary is pronounced as Bednars and Frank, as Your Honor point out, are not plaintiffs, they are objectors. [00:15:28] Speaker 04: And under the settling parties theory of finality, if the cases are remanded to the originating courts, and cases such as hold the Henderson, there's a real problem that some circuits may not find they have jurisdiction over the interlocutory order from the district court merging with the final order in a transfer report. [00:15:52] Speaker 04: In McGeorge versus Continental Airlines, which is a 10th Circuit case discussed extensively in Hill v. Henderson, which is one of the cases the Settling Party cite for that proposition. [00:16:04] Speaker 04: The 10th Circuit found it did not have jurisdiction over claims that had been dismissed from an out of circuit district court. [00:16:12] Speaker 04: and acknowledged that those claims were in quote hiatus. [00:16:18] Speaker 04: And this court in Hill v Henderson acknowledged that those claims had been orphaned under that reading. [00:16:23] Speaker 04: And that's a problem here, not only because one of the airlines cases originates in Oklahoma, but because it underscores the fact that in the event the cases are remanded, there's a real question as to whether every circuit would even find it has jurisdiction over the objectors appeal. [00:16:39] Speaker 04: So because of that specific quandary that exists under Gullboy, we urge this court to find the district court's order as final under 1291 and exercise jurisdiction over the objectors appeal. [00:16:51] Speaker 05: Thank you. [00:16:55] Speaker 05: Unless my colleagues have any questions. [00:16:57] Speaker 05: Thank you, Ms. [00:16:58] Speaker 05: Edwards. [00:16:59] Speaker 05: We will hear from Ms. [00:17:06] Speaker 05: Kinney. [00:17:07] Speaker 07: Good morning, Janine Kenney for Appellees and Respondents, and may it please the court. [00:17:14] Speaker 07: Gail Boym did not establish a new practical construction for finality under Section 1291. [00:17:20] Speaker 07: What Gelboim was explaining was why the rule of finality should not be suspended just because it's an MDL. [00:17:28] Speaker 07: It didn't deem the order that the district court issued in that case to be final. [00:17:35] Speaker 07: It found it was final. [00:17:36] Speaker 07: And then the question was, was there any reason to consider it non-final in that case? [00:17:43] Speaker 07: That's because there were three separate class actions pending in that case. [00:17:49] Speaker 07: The cases cited by Amiki are not to the contrary, they all involve exactly the same circumstance. [00:17:55] Speaker 07: And that is where separate cases are proceeding before an MDL court. [00:17:59] Speaker 07: Any final order disposing of all parties and all claims in those cases are final. [00:18:05] Speaker 07: So there's nothing remarkable about Gelboim. [00:18:08] Speaker 07: And footnote five of that case makes pretty clear that the court is not looking at a new practical construction. [00:18:14] Speaker 07: And of course, Mohawk Industries v. Carpenter makes very clear that courts should exercise significant caution in any new practical construction of Section 1291. [00:18:30] Speaker 07: There's also no authority, as I think appellants admit, that termination of a party or non-party's distinct role in a case has any application under Section 1291. [00:18:44] Speaker 07: 1291, as the courts have interpreted it, applies when [00:18:51] Speaker 07: the court disposes of all claims against all parties. [00:18:55] Speaker 07: And there's nothing left to do but execute the judgment or where the court completely disassociates itself from the case. [00:19:01] Speaker 07: The factors that the courts look at to evaluate finality, the intent of the court, for example, really applies only where there is an order that does apparently end all claims as against all parties, but there's some ambiguity to that order. [00:19:18] Speaker 07: And that's where the court looks to intent, where it's very clear that an order is interlocutory, as is very clear in this case. [00:19:26] Speaker 07: And I think everybody admits does not dispose of all claims at all parties. [00:19:30] Speaker 07: you don't look too intent and you don't look at at how the court characterized the order and that's expressed in rule 50 feet before but let's suppose that even if the gilboyne did establish this rule that a non-final order could be deemed final if there were no opportunity to appeal i want to address some of the practical concerns that have been raised and maybe uh in the court's mind [00:19:55] Speaker 07: There's no question that the objectors will have an opportunity to appeal in this court. [00:20:02] Speaker 07: And that's because of the nature of this action. [00:20:05] Speaker 07: The court made very clear the reason it was denying finality under or denying entry of a rule 54B judgment when we asked for it. [00:20:14] Speaker 07: And again, when appellants asked for it was because it believed that the objections raised were entirely premature and may [00:20:23] Speaker 07: could be resolved later if they remain or may be entirely mooted. [00:20:28] Speaker 07: And that's entirely within its discretion. [00:20:31] Speaker 07: And when those concerns, when it will be clear where those concerns remain or are mooted is when the final amount for settlement distribution will be known. [00:20:42] Speaker 07: And that's what the court is waiting for to determine whether there are additional settlements or there is a judgment in this case, at which point it will be appropriate, that will be the appropriate time to distribute the settlement funds. [00:20:53] Speaker 07: There's nothing to suggest that when that opportunity arises, the court is going to deny a entry of Rule 54b judgment. [00:21:03] Speaker 07: The amount for distribution in this case is going to be known under four circumstances. [00:21:08] Speaker 07: One, United and Delta settle and the case is over. [00:21:12] Speaker 07: No need for a 54B judgment. [00:21:14] Speaker 07: Second circumstance is we're in the middle of briefing summary judgment right now that will close shortly. [00:21:20] Speaker 07: We may lose on summary judgment. [00:21:22] Speaker 07: I don't think we will, but we may lose. [00:21:25] Speaker 07: And that will be final judgment as to this consolidated amended complaint. [00:21:30] Speaker 07: and it will be clear that there will be no additional settlements and we will proceed with distribution then. [00:21:36] Speaker 07: Propose a plan, notice a plan, the court appellants can object to the plan and the court can accept or reject it. [00:21:45] Speaker 07: The third circumstance is that the class is certified and when the class is certified, [00:21:51] Speaker 07: The case will proceed to trial and it will proceed to trial in this court. [00:21:55] Speaker 07: There's no opportunity for those individual cases to be remanded because they will be subsumed in the single nationwide class that the court certifies. [00:22:04] Speaker 07: So there's no issue with remand. [00:22:06] Speaker 07: And why will the class trial proceed here? [00:22:09] Speaker 07: Because plaintiffs filed a consolidated amended complaint that superseded their prior complaints. [00:22:14] Speaker 07: It pleaded proper venue here, venue was not objected to. [00:22:17] Speaker 07: We've consented to trial before this court. [00:22:20] Speaker 07: Even if that were not the case, the parties can always consent to trial before the MDL court. [00:22:27] Speaker 07: And in class action cases, that is what happens because the court has been presiding over the matter for a number of years. [00:22:33] Speaker 07: So that class case will proceed to trial here. [00:22:38] Speaker 07: And when that trial is over, there'll be final judgment, one way or the other, and we can proceed to distribute the funds, including any funds from judgment. [00:22:49] Speaker 07: The concern that appellants raise and amicus raise really can only occur if the class is not certified. [00:22:57] Speaker 07: And if the class is not certified, it will also be clear that there is no opportunity for further class-wide settlements. [00:23:04] Speaker 07: Why? [00:23:05] Speaker 07: Because defendants don't settle on a class basis when a class certification has been declined. [00:23:11] Speaker 07: And at that point, the court would issue a Rule 54B judgment. [00:23:17] Speaker 07: Going back to the certification of the class, [00:23:21] Speaker 07: As I, as I mentioned, the individual cases get subsumed. [00:23:25] Speaker 07: They get subsumed. [00:23:27] Speaker 02: Going back to your, your fourth hypothetical or your fourth possibility rather. [00:23:33] Speaker 02: What if, what if the district court does an issue of 34 B. [00:23:39] Speaker 07: If the court doesn't issue a 54B judgment, there are several options. [00:23:44] Speaker 07: One, the parties could seek appeal of that decision. [00:23:49] Speaker 07: We could seek appeal by seeking a writ of mandamus. [00:23:53] Speaker 07: At that point, we'll want to distribute the funds. [00:23:57] Speaker 07: We want to get the settlement funds out to the class. [00:24:00] Speaker 07: And certainly, objectors will want to appeal that decision. [00:24:04] Speaker 07: But it doesn't even need to come to that because there were cases filed directly in this court. [00:24:10] Speaker 07: They're not going anywhere. [00:24:12] Speaker 07: The consolidated amended complaint is filed in this court and that action isn't going anywhere. [00:24:18] Speaker 07: And one of the named plaintiffs in that action, Mr. Yandinas, filed his original complaint, which he amended with the consolidated amended complaint in this court. [00:24:27] Speaker 07: So that consolidated amended complaint, even if it proceeds on a non-class basis, [00:24:32] Speaker 07: to trial or is voluntarily dismissed if classification is denied, that will be decided in this court. [00:24:39] Speaker 07: And even if none of that was an option, [00:24:43] Speaker 07: There is an argument that the court's decision under, this court's precedent under Ruber v United States, that's 773 F 1367, may vest this court with appellate jurisdiction if all of the cases are transferred out, they all scatter to the wind, the court completely disassociates itself because the MDL is over. [00:25:05] Speaker 07: In Ruber, the court had held where there was a partial dismissal of parties, [00:25:10] Speaker 07: and the case is transferred out of circuit for further proceedings, that the court has appellate jurisdiction then. [00:25:17] Speaker 07: That case addressed transfer under 1404A, but the court could decide at that time that the rule applies to transfer out under section 1407 as well. [00:25:32] Speaker 07: But I think the larger point is because it is unlikely [00:25:38] Speaker 07: In fact, improbable that appellants won't have the opportunity to appeal a final judgment to this court from this district court, deciding whether there's jurisdiction on these facts is entirely premature. [00:25:51] Speaker 07: The court could decide at a later point whether or not there needs to be a new practical construction, despite Mohawk's admonitions of section 1291, whether to extend Ruber to a section 1407 transfer [00:26:08] Speaker 07: and whether to issue a mandamus if the court for whatever reason declines to enter rule 54B judgment. [00:26:17] Speaker 07: We have no reason to believe that Judge Kohler-Katelli would not do so because she explained her rationale for not granting a rule 54B judgment very clearly in her opinion on the motion to show cause. [00:26:30] Speaker 07: So for all of these reasons, this court does not have jurisdiction now. [00:26:35] Speaker 07: We don't have a final order. [00:26:36] Speaker 07: It's clearly interlocutory. [00:26:39] Speaker 07: There's no exception under Gelboim that could possibly provide jurisdiction here. [00:26:44] Speaker 07: And even if there is a concern about appellants' opportunity to appeal, that concern is likely premature because none of the circumstances that they are concerned about have yet arisen. [00:26:59] Speaker 05: Thank you. [00:27:01] Speaker 07: If you have questions, I'd just like to address the merits very quickly. [00:27:06] Speaker 05: You're way over time, I think. [00:27:09] Speaker 05: So you can take one minute. [00:27:11] Speaker 05: Go ahead, quickly. [00:27:12] Speaker 07: Okay, certainly. [00:27:17] Speaker 07: If the court reaches the merits, we think that this court should affirm. [00:27:21] Speaker 07: We think the papers make very clear and the record in this case makes very clear that the court clearly considered the method of distributing the relief to the class. [00:27:31] Speaker 07: Appellants just don't like the outcome. [00:27:33] Speaker 07: They disagree with the outcome and that does not establish abuse of discretion. [00:27:37] Speaker 07: Appellants also contend that the lack of specific notice regarding [00:27:44] Speaker 07: The means of distribution in the notice was abusive discretion to approve that notice. [00:27:50] Speaker 07: They've established no case law that requires that, and they don't dispute that the notice satisfied all of the criteria under Rule 23C2. [00:28:01] Speaker 05: And on your CyPRAE complaint, your CyPRAE concern, what's your answer to that? [00:28:05] Speaker 07: The side prey concern is entirely premature. [00:28:08] Speaker 07: We've made very clear to the court that we don't expect a side prey distribution here, but we can't with 100% certainty rule it out. [00:28:17] Speaker 07: And if we had tried to rule it out, and so we told the class that, and we had to tell the class that, so that they could exercise their option to opt out at that point in time. [00:28:28] Speaker 07: But, and had we told them that it would absolutely be pro rata, which is our intent that would have misled them because if in the unlikely chance that there does need to be an all or partial side prey settlement, they may have stayed in the class when they would have otherwise chosen to opt out. [00:28:44] Speaker 07: And so we told the class everything we could tell them. [00:28:47] Speaker 07: based on the information we had at the time, the class will receive additional notice at the appropriate time. [00:28:54] Speaker 07: They will have the opportunity to object, and any objections appellants have will be right for appeal then. [00:28:59] Speaker 05: All right. [00:29:00] Speaker 05: Thank you. [00:29:00] Speaker 07: Thank you. [00:29:02] Speaker 05: Let's see. [00:29:04] Speaker 05: Ms. [00:29:04] Speaker 05: St. [00:29:04] Speaker 05: John and Ms. [00:29:06] Speaker 05: Edwards, you are both out of time, but you can each take one minute. [00:29:10] Speaker 00: Thank you, Your Honor. [00:29:11] Speaker 00: I want to go back to Judge Rall's question about why we didn't file a protective appeal. [00:29:16] Speaker 00: That's what we thought we were doing. [00:29:18] Speaker 00: We asked the court to hold the appeal in advance. [00:29:21] Speaker 00: And then we asked for the same order that we're asking for now, which is that if the court dismisses due to jurisdiction, it can do so. [00:29:28] Speaker 00: But please make clear that the final approval order is not a final decision that would foreclose our appeal rights. [00:29:34] Speaker 00: The court ordered full briefing and appointed amicus on the jurisdiction issue. [00:29:38] Speaker 00: And we had to pursue the appeal to avoid a later finding that we appealed too late, which has happened in other cases. [00:29:46] Speaker 00: We believe we did file the protective appeal that was needed and that's simply what we're doing here is trying to protect our appeal rights. [00:29:53] Speaker 00: It's important that the court doesn't simply affirm because once the settlement is approved, certain rule 23 issues cannot be unwound or protected even simply through the objection right. [00:30:06] Speaker 00: If the settlement is all side prey, it raises issues with certification. [00:30:10] Speaker 00: It raises the adequacy of representation issue. [00:30:13] Speaker 00: with a class council or representatives who agreed to a settlement that's all side prey. [00:30:17] Speaker 00: And so there are rule 23 problems that infect the entire settlement. [00:30:20] Speaker 00: And so that needs to be able to be unwound without denying class members the right to object and opt out. [00:30:28] Speaker 00: Thank you, your honor. [00:30:29] Speaker 05: Ms. [00:30:29] Speaker 05: Edwards. [00:30:32] Speaker 04: Thank you, your honor. [00:30:32] Speaker 04: Two quick points on rebuttal. [00:30:34] Speaker 04: First, we agree with council for Appleleys that Gelboehm did not announce a new finality rule under 1291. [00:30:41] Speaker 04: What Gelboeme had to determine was whether in a consolidated MDL case, which parties matter when asking the question of all claims and all parties within the MDL. [00:30:52] Speaker 04: The same defendants the Gelboeme plaintiffs were litigating against continued to litigate in the MDL after their claims were dismissed. [00:31:00] Speaker 04: But the court looked at finality as to just the Gelboeme plaintiffs because of those practical concerns. [00:31:05] Speaker 04: Second, counsel for Apple is in tells a story about how exactly appeal would arise in this court, but it's necessarily speculative and at every stage presented, including a 54 be certification. [00:31:21] Speaker 04: or the possibility of trial in the MDL court, there's a reason why that might not happen. [00:31:28] Speaker 04: 54B certification is discretionary. [00:31:31] Speaker 04: Under lexicon, plaintiffs can insist on remand to their originating courts. [00:31:36] Speaker 04: So for those reasons, we urge the court to recognize the uncertainties at play here and find that this is final under 1291 and assert jurisdiction over the objectors appeal. [00:31:47] Speaker 05: Thank you. [00:31:49] Speaker 05: Miss Edwards, you and your colleagues at Georgetown were appointed to serve as amicus and we're grateful to you for your assistance. [00:31:55] Speaker 05: The case is submitted.