[00:00:00] Speaker 03:
Base number 22-801, Inray Valerie R. White, individually and on behalf of all other similarly situated adult petitioners.

[00:00:10] Speaker 03:
Mr. Bruce for the petitioners, Mr. Youngwood for the respondents.

[00:00:14] Speaker 04:
Morning council, Mr. Bruce, please proceed when you're ready.

[00:00:25] Speaker 01:
Please support.

[00:00:27] Speaker 01:
I will reserve three minutes for revokes.

[00:00:32] Speaker 01:
Class actions provide a way for numerous people with relatively small claims to band together and have their common claims heard for a court that they might not otherwise be able to afford or to manage.

[00:00:48] Speaker 01:
When I went to law school, we didn't have classes about legal history.

[00:00:54] Speaker 01:
And I understood that the 1966 rules on class actions were kind of, had invented class actions.

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But in fact, they had not.

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The class action for inequity to secure an injunction dates back in the United States to the early 1800s, just a suitor

[00:01:20] Speaker 01:
went over that history in the 1999 case of Ortiz versus Biberboard.

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And the equity rules that were in effect when the 1966 rules were adopted already provided for class actions, already recognized the need for class actions to resolve common questions that would lead to injunctive relief.

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Rule 23 establishes the modern requirements for those class acts.

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But Justice Scalia in 2010 recognized that Rule 23 creates a categorical rule, entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class act.

[00:02:13] Speaker 01:
There's not an authority for district

[00:02:17] Speaker 01:
courts or courts of appeals to amend Rule 23 to adopt additional restrictions.

[00:02:26] Speaker 01:
What the district court in this case suggested was that because this court had not clarified the issue of failsafe classes of what is to be done about them, that there should be a categorical rule against

[00:02:47] Speaker 01:
fail safe class actions, prohibiting certification.

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That's a rule would without inflation.

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Before we get to that, I mean, in order for us to even treat with the merits of that, we have to decide that it's properly before us under 23.

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Yeah.

[00:03:06] Speaker 04:
Right.

[00:03:06] Speaker 04:
Right.

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And so there's some threshold questions.

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There's timeliness and there's also even apart from timeliness, there's the question of whether we exercise our discretion to take the

[00:03:17] Speaker 04:
to take the interlocutory appeal.

[00:03:20] Speaker 01:
I think that the district court's decision, that prior to the district court's decision, there were a number of district court decisions here that address the so-called failsafe issue, including the Campbell case in Ramirez and the Afghan and Iraqi allies.

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And to my view, those cases all address the issue satisfactorily.

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But the district court in this case decided that there was really a split between those district courts and that led to this being an unsettled issue in this jurisdiction.

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And once the district court said that and acted upon it, I think this definitely became an unsettled issue.

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in this jurisdiction, which I think that this court now has to address as a result that it is an unsettled and in the district court's words, it is a fundamental issue.

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So unsettled issue is one cry is one of the prongs under which we could take discretionary review of it.

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But the way we outlined that criteria on in the or as Pam case, it was unsettled, but then it also has to be likely to evade end of case review.

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we would have to proceed on an individual basis.

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And based on the record here so far, if this would take years and at the end of those years, if we prevailed, we could, I guess, appeal the denial of class certification.

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And if we succeeded on that appeal, we would then start over with the district court.

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we wouldn't even be in at the end of the case.

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We would have years to get to the point where we could take an appeal.

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We could take an appeal and then we would have to start over in the distance.

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But isn't that going to be true almost by definition in a class action situation?

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Because the discretionary criteria, it can't be something that applies to every single class action or else it would occupy the field.

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And so it has to be

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less likely or more likely to evade end of case review than would normally be the case in a class action?

[00:05:52] Speaker 01:
Well in a lot of class actions well a lot of the 23f petitions are about the defendants so they're not the denial of class certification that the defendants are appealing the grant of class certification

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But when there's a denial of class certification and people have small claims, it very likely is going to end, end of the case review because the economics don't justify the lawsuit anymore.

[00:06:30] Speaker 04:
So is that, is your view that anytime there's a denial of class certification then, and there's an unsettled issue, then the court of appeals, um,

[00:06:41] Speaker 01:
should exercise its discretion to take not that any case but in cases where it is likely to evade end of the case review and and i don't know whether that means the majority of cases where classification is denied or not but it certainly applies in this case i took this case as a class action

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And the fee agreements with people say that we're taking this as a class act.

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That was the only economical basis for taking the case.

[00:07:14] Speaker 04:
But that just doesn't, as far as I know, that doesn't seem atypical for class actions.

[00:07:20] Speaker 01:
Well, there are some class actions where individual claims are worth a huge amount of money.

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Um, and there are some class actions where resolution of the individual claim might automatically mean that if the case was certified on appeal at the end of resolutions, those individual clients that, um, that, um, I'm sorry, I've lost my train there, but that it would mean that the case is really over.

[00:07:58] Speaker 01:
And in this case, that would mean that the case is starting again.

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If a class action were denied for lack of numerosity, then presumably that class action could go forward just with the plaintiffs because they aren't numerous enough to be a class action and the whole thing would be resolved and over and done with.

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So that would be an example of a denial of class certification that would not evade end of case review.

[00:08:29] Speaker 01:
I don't, I don't believe so.

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I mean, in this case, I mean, we have subclasses, some of which are, are less than 30 people.

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It's not economical to manage the multi-party case with 30 people or 50 people in this case.

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So in this case, if we added up all the subclasses, we're at over 200 people.

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It's not,

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manageable.

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I'm not talking about your case.

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I'm talking about another case.

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If it were a numerosity issue, by definition, the district court would have almost been finding that this could go forward without there being a class action that you could just go forward with everybody in it in a single litigation.

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That's all.

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I'm just saying this is very difficult.

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I'm not saying whether it's this case or not.

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That's the district court did not rely on numerosity.

[00:09:21] Speaker 02:
Council, what do we do with the timeliness issue?

[00:09:24] Speaker 02:
Your request for review does not appear to be timely.

[00:09:28] Speaker 01:
Oh, our request for review was within the 14-day period that the judge denied.

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You're not counting the earlier denials as mattering?

[00:09:38] Speaker 01:
No, the earlier denial was without prejudice.

[00:09:41] Speaker 02:
Where in the law says that makes a difference?

[00:09:46] Speaker 01:
Well, the rule is 14 days from the decision that's being appealed in the decision.

[00:09:52] Speaker 02:
Well, why should without prejudice or with prejudice matter?

[00:09:56] Speaker 01:
Because the district court in October of 2020 denied certification with instructions about what we should do, that we should deal with this fail safe issue and we should address a couple of other problems.

[00:10:14] Speaker 01:
We did those things.

[00:10:17] Speaker 01:
So we weren't gonna take an appeal at that point because it's easy to repair the class definition to eliminate what was arguably fail safe language.

[00:10:28] Speaker 01:
And we did that.

[00:10:32] Speaker 00:
Let me just give you one other thing.

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It seemed to me like, and maybe I'm wrong, but the district court was concerned about

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Was the use of the word vested retirement benefits in your class definition?

[00:10:49] Speaker 00:
You mentioned it many times.

[00:10:52] Speaker 00:
Why didn't you just take the word vested out?

[00:10:54] Speaker 00:
You don't need it.

[00:10:59] Speaker 02:
This could have been rewritten pretty straightforward.

[00:11:01] Speaker 00:
All you had to do was take out vested and I think you wouldn't have had any arguments about failsafe.

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And she pointed to that language specifically.

[00:11:08] Speaker 01:
The language that the district court objected to was that we originally said have vested rights, which have been denied.

[00:11:16] Speaker 01:
And so the district court was saying that's presuming that people have vested rights.

[00:11:22] Speaker 00:
Exactly.

[00:11:23] Speaker 01:
And so we changed.

[00:11:24] Speaker 00:
So her concern is with the word vested, not with the word have.

[00:11:28] Speaker 01:
I understood it was saying that they have vested rights, presumed success.

[00:11:36] Speaker 01:
and are presumed that we were right.

[00:11:39] Speaker 01:
Doesn't the word vested?

[00:11:41] Speaker 00:
I'm sorry, go ahead.

[00:11:43] Speaker 01:
We changed it to have been denied vested.

[00:11:46] Speaker 00:
Yeah, I saw that, but it seems to me that the essence of the failsafe concern here is that you're claiming they're vested.

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And I believe the district court said that vested is the very issue in dispute.

[00:11:58] Speaker 00:
So I'm just not clear why you didn't just take that.

[00:12:00] Speaker 00:
You don't need it.

[00:12:01] Speaker 01:
I could strike it now, but you agree you can take that out easily.

[00:12:08] Speaker 01:
Yes, but that wasn't what I understood in terms of what I would say is people have been denied vested rights.

[00:12:18] Speaker 01:
If they don't have enough years of service, if they didn't work for the employer, I would still use the language.

[00:12:24] Speaker 01:
They have been denied vested rights because of pets.

[00:12:30] Speaker 00:
So yeah, but if the district court says that use of the word vested makes us feel safe, then you'd be happy to take it out.

[00:12:35] Speaker 00:
If that's how it doesn't, I understand.

[00:12:37] Speaker 01:
But I didn't understand it that way at all.

[00:12:39] Speaker 00:
I understand.

[00:12:40] Speaker 01:
And we had said in our reply brief before that, we had said that if that was the problem, if the problem was that we were saying have vested rights, that we would change it to have been denied vested rights because of

[00:12:59] Speaker 01:
So it's a question site.

[00:13:02] Speaker 01:
And so we we said that before the decision saying that we needed to improve the the language and we we acted on that exactly as we had said in the reply.

[00:13:14] Speaker ?:
Okay.

[00:13:16] Speaker 04:
Make sure my colleagues don't have additional questions for you this time.

[00:13:18] Speaker 04:
We'll give you a little bit of time for rebuttal.

[00:13:21] Speaker 04:
Thank you, Mr Bruce.

[00:13:24] Speaker 04:
Mr Youngwood.

[00:13:34] Speaker 02:
Sorry, Your Honor, just a little water.

[00:13:43] Speaker 03:
Your Honors, may it please the court, Jonathan Youngwood, Simpson, Thatcher, and Bartlett for the appellee and the defendants here.

[00:13:50] Speaker 03:
I want to go straight momentarily to the questions about whether or not the petition should be heard at all.

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But I do want to pick up on the discussion about vested in case I run out of time.

[00:14:03] Speaker 03:
Several points.

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The plaintiff had three opportunities to write this class definition and put vested in it each time.

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I don't know exactly why that was done, but if you strike vested, I think you change the number of people that could be included in the class in a way that were we to be successful at the end would have rescued a lot of effect on more people than may be intended.

[00:14:27] Speaker 03:
So I don't think simply striking the word at this point at the appellate level would

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Address first, the district course problems, because I think as you go through each of the sub classes, you have your own fail safe issues.

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And I think it would drastically.

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I don't think it's as simple as not changing the class.

[00:14:43] Speaker 03:
I think it would change the class and frankly, at the district court thought otherwise, it would be fine with or without invested invested didn't do anything.

[00:14:51] Speaker 02:
then I believe this report is... Why can't it be defined to say employees who would have vested rights if defendants counted full years, recognized non-participating properties, and awarded benefits to non-participating properties?

[00:15:05] Speaker 03:
I think you still today have no idea who would be in that classroom.

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And you'd have to go through each of the three subclasses.

[00:15:12] Speaker 03:
I think you would have no idea.

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If the class were anyone who worked for Hilton in a certain time period, that would be defined.

[00:15:19] Speaker 03:
It was anyone who worked for helping for a certain number of years by a measurable, independent way of looking at it that might survive.

[00:15:29] Speaker 03:
But here you have to go through the merits of the word best is in there or not to determine who is in the class.

[00:15:36] Speaker 03:
And that falls into all the traps of failsafe that we believe this were properly recognized.

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I respect we don't think best did.

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would solve the problem.

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I don't think it would have solved it for the district court.

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And I think there are reasons that the plaintiff's counsel with three tries didn't remove that word, simply moved it from one part of the sentence.

[00:15:54] Speaker 00:
This fail safe thing seems to be

[00:15:59] Speaker 00:
rather inscrutable, because at some level, class actions have to identify the alleged injury in a common way.

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And so, you know, we don't want to get ahead, they win, tails, they lose theory.

[00:16:13] Speaker 00:
And so trying to interpret something that's not even written into the rule becomes rather hazardous.

[00:16:21] Speaker 00:
And why the district court here raised concerns about commonality and typicality, why isn't the right rule

[00:16:28] Speaker 00:
before you start applying something that's not written in the rule, to go through the elements of Rule 23A and then whichever appropriate subdivision of 23B exists and apply those at a minimum first.

[00:16:46] Speaker 00:
And if you do that, it seems to me that probably 99% of the time,

[00:16:53] Speaker 00:
you're going to cover whatever this concern about failsafe was, but you will do it actually in the terms that the rule will require instead of us trying to understand the contours of a rule that's not written.

[00:17:06] Speaker 03:
So several parts of an answer, I think, Your Honor, to that question.

[00:17:09] Speaker 03:
First of all, I think it is in the rule.

[00:17:11] Speaker 03:
I think 23C1B, which says you must define the class, is a... Well, the district court has to define the class in issuing the order.

[00:17:20] Speaker 03:
Yes.

[00:17:21] Speaker 03:
You have to end the order granting class certification.

[00:17:24] Speaker 03:
This class would not be defined if the district judge had signed the order that was twice presented to her.

[00:17:32] Speaker 03:
We would not know who is in the class.

[00:17:34] Speaker 00:
Well, that may be what you would have argued, but the requirement that the district court define, I think, is

[00:17:41] Speaker 00:
The idea is the way that rule is written is that you go through A and then you go through B, whatever relevant subdivision is, and then C tells you what happens after you have a class for the most part.

[00:17:53] Speaker 03:
So second answer to your question, Your Honor, is a failsafe class of this type.

[00:18:01] Speaker 03:
I think of any type.

[00:18:03] Speaker 03:
would be unmanageable and would be unfair.

[00:18:07] Speaker 00:
What I'm trying to understand is why isn't the first argument for things that you call fail safe.

[00:18:11] Speaker 00:
If it genuinely is fail safe, it will never meet numerosity because it will either be a lot of people or zero.

[00:18:17] Speaker 00:
And if one outcome of the case means the class is zero, numerosity isn't met.

[00:18:23] Speaker 00:
There will be commonality problems.

[00:18:25] Speaker 03:
So on numerosity, Your Honor, we won't know that answer until the very end of the case.

[00:18:29] Speaker 00:
Well, that's exactly my point.

[00:18:30] Speaker 00:
Why wouldn't you argue that numerosity is not met?

[00:18:34] Speaker 00:
Because at the end of the case, the number will be zero if we win.

[00:18:38] Speaker 00:
And so I don't understand why I have to do made up terms here.

[00:18:41] Speaker 00:
And again, the district court flag commonality and typicality.

[00:18:44] Speaker 00:
And I just don't understand

[00:18:47] Speaker 00:
why we're supposed to instead lead with something that I'm not sure what it means in other circuits.

[00:18:54] Speaker 00:
I think, I think it was a seventh circuit.

[00:18:55] Speaker 00:
If I've got it right was all, was very worried that, you know, just the practical nature of class actions.

[00:19:00] Speaker 00:
So they have to at some level define their injury.

[00:19:02] Speaker 03:
They do, but there are most of my practices, class actions.

[00:19:09] Speaker 03:
Um, this is the first time I've appeared in front of an appellate court arguing about failsafe because every other one has

[00:19:15] Speaker 03:
It's people who purchase shares of the stock during a certain period.

[00:19:18] Speaker 03:
It's people who are employees during a certain period.

[00:19:22] Speaker 03:
What it isn't is what's in the Campbell case, District Court case in this circuit, people who were discriminated against.

[00:19:28] Speaker 03:
In terms of commonality, that argument is before the District Court or was before the District Court, because of the order in which she approached it, we think commonality and common issues dominating don't work for any of these three subclasses.

[00:19:40] Speaker 00:
I guess back to my questions.

[00:19:42] Speaker 00:
I just don't understand why that's not where we start.

[00:19:45] Speaker 00:
instead of applying something that's not written in the rules.

[00:19:48] Speaker 03:
My simple answer to you is all of that was presented to the district court.

[00:19:52] Speaker 03:
I don't want to presume this is why the district court started here.

[00:19:55] Speaker 03:
If I were to speculate, which I know my clients not to do, I would speculate that this was a way to cut through it in a straight way that applies to all three subclasses.

[00:20:09] Speaker 03:
I think that this definition rides out as they'll say.

[00:20:12] Speaker 03:
It's not

[00:20:16] Speaker 03:
within this circuit and frankly across the country and that the whole definition turns back on whether or not you win, whether or not each individual potential member of the class wins.

[00:20:29] Speaker 03:
But I cannot tell you why the district court went there first rather than our commonality and other arguments.

[00:20:34] Speaker 03:
She did consider for two of the subclasses some of those other arguments in the second denial of class cert and then readopted

[00:20:44] Speaker 03:
for the first subclass.

[00:20:48] Speaker 03:
If I, I'm happy to go on, on the fail safe.

[00:20:51] Speaker 00:
Can I ask you one more thing?

[00:20:52] Speaker 00:
As I read your brief, tell me if I'm wrong.

[00:20:55] Speaker 00:
You weren't asking for a categorical rule against fail safe classes.

[00:21:00] Speaker 00:
Am I wrong about that?

[00:21:01] Speaker 03:
Sorry, can you repeat the question?

[00:21:02] Speaker 00:
Did you ask for a categorical rule against fail safe classes in your brief?

[00:21:06] Speaker 03:
Or no?

[00:21:07] Speaker 03:
I thought you were more new at it.

[00:21:08] Speaker 03:
It may possibly fall into what you define as a fail safe class.

[00:21:12] Speaker 03:
That's the problem.

[00:21:13] Speaker 03:
And I think that there are the Ramirez case, for example, in this district court allowed a failsafe class to go for what some argued was a failsafe class to go forward because part of the definition tied potentially to a merits determination that that court found that the first two aspects of that definition were definitive enough that you could independently have a sense of who was in the class.

[00:21:41] Speaker 03:
I think

[00:21:42] Speaker 03:
I might disagree with Ramirez, but even under Ramirez, we would prevail here under that type of analysis.

[00:21:49] Speaker 03:
The Afghan case is a similar type thing where somebody said failsafe and the district court said, actually, when you look at it, it's not failsafe.

[00:21:57] Speaker 03:
So it's possible to adopt a rule that says no failsafe classes, but then find some definitions that some defense counsel might say are failsafe and conclude they're not.

[00:22:07] Speaker 03:
I don't think that applies here.

[00:22:10] Speaker 03:
liberal, conservative, whichever way, narrow, tight rule of fail-safe, this class fails.

[00:22:17] Speaker 04:
And then, so we only get to any of these issues if we get past the threshold.

[00:22:20] Speaker 04:
So let me... If I could send an error, Your Honor.

[00:22:23] Speaker 04:
Yeah, can I just ask you a couple of questions about timeliness?

[00:22:25] Speaker 04:
Yes.

[00:22:26] Speaker 04:
You have a timeliness argument.

[00:22:27] Speaker 04:
I know, and then there's also the question about whether the discretionary criteria are satisfied.

[00:22:32] Speaker 04:
On timeliness, everybody agrees, I think, well, tell me if you don't,

[00:22:39] Speaker 04:
that the district court could have essentially done the same thing that at least the district court seemed to be intending to do here, which is to give the plaintiffs a chance to come forward with new class definitions that would potentially satisfy the concerns that the district court had.

[00:22:57] Speaker 04:
And the district court could have done that in a way that would have allowed an appeal of the final decision that's before us now.

[00:23:06] Speaker 04:
If the district court, for example, had just done

[00:23:08] Speaker 04:
had said, look, I've got some real concerns about the way you frame this.

[00:23:13] Speaker 04:
Why don't we take another tack at it?

[00:23:14] Speaker 04:
I'm not going to rule on the motion that you have before me now.

[00:23:17] Speaker 04:
You can withdraw it.

[00:23:19] Speaker 04:
That could have happened.

[00:23:21] Speaker 04:
And the exact same sequence of events essentially would have occurred, except you wouldn't have had what could be seen as technicality of a decision that says denied without prejudice.

[00:23:32] Speaker 04:
Instead of denying without prejudice, it's just

[00:23:35] Speaker 04:
let's just take that back and let's go forward and try another iteration.

[00:23:40] Speaker 04:
So if everybody agrees that could have happened and we'd be in exactly the same place, and what's the point of saying that in this situation there's a time in this problem?

[00:23:49] Speaker 04:
Because let's suppose it is an issue that's completely unsettled, and let's suppose it is an issue that won't get end of case review.

[00:23:58] Speaker 04:
I know you dispute that, and there may be some arguments there, but let's just suppose it is.

[00:24:02] Speaker 04:
Why wouldn't we just allow it to come?

[00:24:04] Speaker 04:
Because all of that could have happened anyway.

[00:24:08] Speaker 03:
So, Your Honor, I think much of the interpretation in the application of 23F is within your discretion.

[00:24:14] Speaker 03:
I think the timeliness is not within your discretion.

[00:24:16] Speaker 03:
Obviously, you will determine whether it's timeliness, but it's not a discretionary aspect of the rule.

[00:24:22] Speaker 03:
And I think 23F is quite clear as to when the clock starts to run, when you combine it with

[00:24:29] Speaker 03:
law that does exist in the circuit, such as the DC Water case, which I recognize was in a clarification posture, not this exact posture, but you read that case, the cases that case sites, the basic rule is that there's a cutoff here.

[00:24:46] Speaker 03:
And that if the prior decision isn't changed, that prior decision was the one you should have appealed from.

[00:24:52] Speaker 03:
The seventh circuit looked at this.

[00:24:54] Speaker 04:
I mean, I get that.

[00:24:55] Speaker 04:
I guess my question is it just seems awfully form over substance if we all agree that essentially the exact same thing could have happened.

[00:25:03] Speaker 04:
If just instead of saying denied without prejudice, it would have been, you know, I'm inclined to deny this.

[00:25:09] Speaker 04:
I'll probably deny this.

[00:25:10] Speaker 04:
So why don't you just take another try?

[00:25:13] Speaker 03:
And so two parts to the answer on the first jurisdiction is about form.

[00:25:18] Speaker 03:
and the rules are the rules and the courts need to interpret them, but there's not discretion in interpreting and they're there for a purpose and for finality.

[00:25:26] Speaker 03:
The district court could have gone some version of the course you picked, but she chose not to do so.

[00:25:32] Speaker 03:
She chose to give a definitive, this is denied without prejudice.

[00:25:37] Speaker 03:
That presented in the actual court in the second circuit goes through all of this discussion in more articulating, more detailed than I possibly can.

[00:25:44] Speaker 03:
It gave the plaintiff several options.

[00:25:46] Speaker 03:
It did not take away options.

[00:25:48] Speaker 03:
Plaintiff could proceed to go through the district court and try to convince the court that there was a good class here.

[00:25:54] Speaker 03:
That's what he chose to do.

[00:25:56] Speaker 03:
That didn't end the appellate review or even the interlocutory appellate review options.

[00:26:01] Speaker 03:
The plaintiff could have followed this actual decision.

[00:26:08] Speaker 03:
for 1292 interlocutory review.

[00:26:10] Speaker 04:
Right, that's always available.

[00:26:12] Speaker 04:
23F is supposed to give you something more in the class cert context because 1292B has been there forever.

[00:26:18] Speaker 03:
It's been there forever and it was still there and it's the seventh circuit recognized.

[00:26:22] Speaker 04:
And then your honor assumes the way.

[00:26:26] Speaker 04:
I don't mean to resist your point that jurisdiction can be formal.

[00:26:31] Speaker 04:
I understand that.

[00:26:32] Speaker 04:
I'm just trying to understand whether there's something else going on here.

[00:26:35] Speaker 04:
sounds like there may not be and I take your point that sometimes formality governs in the jurisdictional context.

[00:26:40] Speaker 04:
I understand that.

[00:26:41] Speaker 03:
Your honor, again to the prior question, I'm not going to presume to get into the district court's head, but the district court issued a decision that if not challenged and renewed would have been final.

[00:26:52] Speaker 03:
She did not know if there would be a second or now third motion.

[00:26:56] Speaker 03:
I think she was quite

[00:27:02] Speaker 04:
I don't think change the avenue for appellate review.

[00:27:05] Speaker 04:
So let's suppose that's the, um, in the subsequent case, in the subsequent motion, the district court grant certification, then everybody agrees that that could be appealed.

[00:27:16] Speaker 03:
I think that would under his sports authority in DC water have changed the decision.

[00:27:24] Speaker 03:
Right.

[00:27:25] Speaker 04:
That is not what happened here.

[00:27:27] Speaker 04:
And in fact, and then I guess my question is,

[00:27:30] Speaker 04:
Why?

[00:27:30] Speaker 04:
Why does it matter?

[00:27:32] Speaker 04:
Why should it matter if the district court grants or denies?

[00:27:36] Speaker 04:
Given that the purpose of a 23F review, let's suppose again that it's an unsettled issue and it needs to be resolved by the court of appeals because it's something that is coming up a great deal and there has to be an answer.

[00:27:48] Speaker 04:
The district court would have either gotten it wrong or right by granting or denying.

[00:27:51] Speaker 04:
We don't know until it comes up on appeal.

[00:27:53] Speaker 04:
Why does everything turn on whether it happens to be a grant as opposed to happens to be a denial?

[00:27:58] Speaker 04:
When at the end of the day, the purpose is to get it.

[00:28:00] Speaker 04:
The purpose of 23F is to get it up.

[00:28:03] Speaker 04:
If it's an unsettled issues so that there could be a definitive answer, it seems kind of happenstance.

[00:28:08] Speaker 03:
I think the facts of this case or the facts in the law of this case actually provided a key example as to.

[00:28:15] Speaker 03:
Why the first chance and maybe here you could argue the second because there's really no difference between the second denial and the third denial.

[00:28:23] Speaker 03:
I argued you off of the first, but I think there's a difference because the class definition change.

[00:28:27] Speaker 04:
Sorry, there's a difference between the second and third because they were looking at a different class definition.

[00:28:32] Speaker 03:
But but I think any real reading of that definition is was moving words and it didn't change the definition.

[00:28:37] Speaker 03:
That's your view.

[00:28:38] Speaker 03:
But issue upon which.

[00:28:41] Speaker 03:
My friend lost below is the exact issue.

[00:28:44] Speaker 03:
The second time is the exact issue.

[00:28:46] Speaker 03:
He's appealing after the third time, which is they'll say class in this circuit.

[00:28:52] Speaker 03:
What's the scope?

[00:28:52] Speaker 03:
How do you interpret it?

[00:28:54] Speaker 03:
And nothing changed.

[00:28:55] Speaker 03:
And I will say that

[00:28:56] Speaker 03:
Even if something had changed, if you follow the Seventh Circuit in Asher, you would reach the same result because in Asher, remarkably, things did change.

[00:29:05] Speaker 03:
In Asher, there were new class plaintiffs inserted, and even there the Seventh Circuit found.

[00:29:09] Speaker 04:
Right, so we have to decide if we address the time in this issue whether we would follow that.

[00:29:14] Speaker 04:
Of course, no.

[00:29:14] Speaker 04:
I'm just trying to understand the implications.

[00:29:16] Speaker 04:
Of course.

[00:29:17] Speaker 04:
Right.

[00:29:18] Speaker 04:
So suppose in the second, the class, suppose there were an appeal taken after the second order.

[00:29:25] Speaker 04:
And then, as I understand 23F, the district court proceedings can continue, not withstanding an interlocutory appeal.

[00:29:33] Speaker 04:
They may continue or they may not.

[00:29:34] Speaker 03:
We actually agreed to stay the case in this case.

[00:29:37] Speaker 03:
But the district court could continue them if the district court wanted to.

[00:29:40] Speaker 03:
We did not oppose the motion for the stay and she and her discretion.

[00:29:44] Speaker 03:
Right, right, right.

[00:29:44] Speaker 04:
I'm not talking about what happened here.

[00:29:45] Speaker 03:
I'm just saying it's a general matter.

[00:29:47] Speaker 04:
Could proceed.

[00:29:48] Speaker 04:
Could proceed.

[00:29:48] Speaker 04:
Right.

[00:29:49] Speaker 04:
Could the district court then proceed?

[00:29:50] Speaker 04:
Suppose an appeal is taken.

[00:29:52] Speaker 04:
And then put the district court and then while the appeals pending, the plaintiff comes forward and says, you know, actually on reflection, I'd like to, with your permission, adjust the class definition, move for a new class definition.

[00:30:05] Speaker 04:
You can continue things while a 23f is appealing.

[00:30:08] Speaker 04:
I'll even withdraw my appeal if necessary, but I'd like to modify the class definition.

[00:30:12] Speaker 04:
Could that happen?

[00:30:17] Speaker 03:
Your Honor, I want to be careful not to overly answer a question I haven't thought about before.

[00:30:21] Speaker 03:
Sure, I understand.

[00:30:22] Speaker 03:
I suspect I as a defendant might come and say, at least on the issue of class certification, district court, you've been divested of jurisdiction while the appeal is pending.

[00:30:32] Speaker 03:
I suppose if the plaintiff withdrew his appeal, he could then proceed.

[00:30:36] Speaker 03:
But I would then be before you arguing that was just one chance to get it right.

[00:30:40] Speaker 03:
That's the question.

[00:30:41] Speaker 04:
And then what's the point of that?

[00:30:43] Speaker 04:
Because in that situation, if the plaintiff withdraws,

[00:30:47] Speaker 04:
and then there's a new class definition.

[00:30:50] Speaker 04:
And that also presents an unsettled issue.

[00:30:53] Speaker 04:
But then we would have some doctrine that says, well, there was one shot.

[00:30:57] Speaker 04:
No, you withdrew it.

[00:30:59] Speaker 04:
And then the point would be, well, I didn't want to continue that appeal because I wanted to change the class definition.

[00:31:03] Speaker 04:
The real issue is going to be something that happens later.

[00:31:06] Speaker 04:
And then 23 F availability would have been gone forever.

[00:31:08] Speaker 03:
I think your honor, in addition to saying to the plaintiff in the court that no, they don't

[00:31:14] Speaker 03:
You don't have jurisdiction anymore because the Telecourt planet draws the appeal.

[00:31:18] Speaker 03:
And then also say that the District Court, this case has been going on X years.

[00:31:22] Speaker 03:
It is too late to seek an amendment, the class certification.

[00:31:25] Speaker 03:
If you get to a policy- Yeah, you might win on that, but if the District Court allowed it- And if you get to a policy purpose, Your Honor, of the sentence from 23F we're debating, it's this case.

[00:31:37] Speaker 03:
This case will be seven years old in May.

[00:31:40] Speaker 03:
We don't even know if there's a class or not.

[00:31:43] Speaker 03:
We don't think there is.

[00:31:44] Speaker 03:
Had this happened in 2018, we would have known by 2019 if there was a class.

[00:31:50] Speaker 03:
And that, I think, whether you're persuaded or not by the Seventh Circuit decision, that is the policy behind the Seventh Circuit.

[00:31:57] Speaker 03:
Right.

[00:31:57] Speaker 04:
And I think a lot of that, I don't deny the force of some of that.

[00:32:02] Speaker 04:
Definitely abstract.

[00:32:03] Speaker 04:
And in this case, you've put forward some arguments that we have to take seriously.

[00:32:07] Speaker 04:
And that all can be taken into account in the discretionary decision whether to grant a 23f appeal.

[00:32:13] Speaker 04:
But the question, there's the non-discretionary question of whether it's untimely.

[00:32:19] Speaker 04:
That's the one that I'm focusing on.

[00:32:20] Speaker 04:
And as to that one, it does seem a little bit of an odd dynamic to say in a situation in which the class certification proceedings could continue,

[00:32:29] Speaker 04:
and the plaintiff decides to withdraw the appeal, then the answer would be, well, too bad.

[00:32:35] Speaker 04:
You had one shot under 23-F.

[00:32:36] Speaker 04:
That's it.

[00:32:37] Speaker 04:
Even though everybody now wants to look at a different class definition, that class definition is not even in the case anymore.

[00:32:42] Speaker 04:
But you lost.

[00:32:44] Speaker 04:
You can't take a 23-F appeal from the second one, even though that's the only one that's even in the case anymore.

[00:32:48] Speaker 03:
Well, again, Your Honor, to take your hypothetical, if I'm part of it, not everyone is agreeing we should take another look at class certification.

[00:32:56] Speaker 03:
The defendant is saying so many times, please.

[00:33:00] Speaker 03:
And again, this case and the case that's been referenced, the Fathi case combined is a very good argument for finality in cases.

[00:33:09] Speaker 03:
But to take the import of the 14 days, I think it probably has two imports.

[00:33:15] Speaker 03:
One, I submit to you, it's a categorical rule and when you combine it with the DC water case, that the ruling of this circuit should be the 14 days is 14 days or it's 10 before, 14 today, and that you had the one chance.

[00:33:30] Speaker 03:
I think it may also play a role in your discretionary analysis of it in terms of, uh, you can incorporate a latches type argument in terms of taking time to appeal.

[00:33:38] Speaker 03:
Why did we wait from 2018 to 2022?

[00:33:41] Speaker 04:
Yeah, I think the discretionary part of it, I get, I was looking at the non-discretionary part of it.

[00:33:47] Speaker 04:
I understand.

[00:33:49] Speaker 04:
Let's make sure my colleagues don't have.

[00:33:50] Speaker 04:
Thank you.

[00:33:50] Speaker 04:
Thank you.

[00:33:51] Speaker 04:
Thank you.

[00:33:55] Speaker 04:
So Bruce, we'll give you two minutes for rebuttal.

[00:33:59] Speaker 04:
Oops.

[00:34:00] Speaker 01:
Yes.

[00:34:05] Speaker 01:
On the prior decision in 23F, I think that the key thing here is this was a different motion in response to the court's October 2020 decision.

[00:34:19] Speaker 01:
It was a different motion.

[00:34:21] Speaker 01:
It was a different decision.

[00:34:23] Speaker 01:
And the decision did change.

[00:34:25] Speaker 01:
The court, in the first time, said that we should have an

[00:34:32] Speaker 01:
and that that was the best resolution.

[00:34:35] Speaker 01:
The second time the court urged a categorical rule against fail safe class actions, which the main decision that relied on the medicine or taste in the seventh circuit did not say to have any categorical rule.

[00:34:52] Speaker 01:
It recognized that there was a tension between the over inclusive class and fail safe language.

[00:34:59] Speaker 01:
And that

[00:35:00] Speaker 01:
It was trying to balance that tension and not urging a categorical rule.

[00:35:05] Speaker 01:
I think the question that also got overlooked in the Campbell case was that Campbell case did find failsafe language, but it did not deny class certification on that basis.

[00:35:20] Speaker 01:
It denied class certification on the basis that there was not a common issue described.

[00:35:27] Speaker 01:
That was the problem.

[00:35:28] Speaker 01:
That was the problem in the base Yakov case in the first circuit as well, that very often the and the Campbell District Court also said this was repairable.

[00:35:41] Speaker 01:
All you had to do was strike out the offending language and you have a class that might be over inclusive, but you have a class.

[00:35:50] Speaker 01:
But the real problem in Campbell was that a common issue was not described with a common

[00:35:57] Speaker 01:
We have described a common issue with a common answer.

[00:36:01] Speaker 01:
We've described the common issue of the fractional years of service and how that can be resolved by applying Arista's hours of service rule.

[00:36:11] Speaker 01:
This was not a new issue below, too.

[00:36:15] Speaker 01:
We had done this.

[00:36:16] Speaker 01:
We had gone over the same thing in the Kafafi case.

[00:36:19] Speaker 01:
We had gotten hundreds of people paid on these grounds.

[00:36:23] Speaker 01:
These people, you know that the second thing point I'll make is the will not be bound that they argued that somehow they will not be bound if they prevail.

[00:36:34] Speaker 01:
In this case, there is no way in that language that if if Milton somehow prevailed that people in the class would not be bound.

[00:36:45] Speaker 01:
Obviously they'll be bound.

[00:36:46] Speaker 01:
and that's required by Rule 23C3.

[00:36:50] Speaker 04:
I think we have that part of your argument.

[00:36:55] Speaker 04:
Let me make sure my colleagues don't have questions for you at this point.

[00:36:58] Speaker 04:
We appreciate your argument.

[00:36:59] Speaker 04:
Thank you, Council.

[00:37:00] Speaker 04:
Thank you to both Council.

[00:37:02] Speaker 04:
We'll take this case under submission.