administrator claims administrator years of self funded plans class members in this class action the case turns on a simple issue and this is the what makes it unusual the court here approved  approved and what while approving the settlement found that the claims administrators had the authority to opt out on behalf of the self funded plans but then refused to find that they had this that same authority i'm sorry to file a claim in the sel bar i mean where's the abuse of discretion that the district court said i'm not satisfied unless you provide something more what me what would have been the palm with having something signed by a customer but here we submit that the new original problem is that the court was willing to find that they had the authority to go one way but not the other that is to say they had the authority to hear it if when it came when disputed your authority to opt out form we didn't know this we really we didn't want to you would have an eye on a holy mess on his hands and more importantly the folks who were paying the fifty four million dollars or whatever it would not be getting close so i'm where's he busey discretion the abuse of discretion is is is st and in that i still have to return to the fact that there's it's essentially a one way settlement less that he  would suggest that it amounts to the same thing is a much more solemn change of rights for a party to up to file a claim than it is to opt out when a party files a claim their culture that that the claims administrator prepare an opt out forms sent them to the customers all they would have to do is sign their names and mail them in or e mail them an hour it was being done well in fact if you don't and they want to do or have been unassailable that indeed these gave clear and year to your clients directly gave clear notice of this requirement to establish authority well if in fact the notice didn't go out until after the hearing for grappled with all these issues and passed upon them and therefore they were properly before this court the nd of all it was entirely proper for the self funded plans through their claims administrator to opt out and then litigate the propriety of their opt out earlier on in the in the process in which that they represented that they represent that they stated that they represented humana and a large number of other rd party payers and we would suggest that that preserved the objection there i courts are the ultimate arbiter of the balance of sovereignty between the states and the federal government so yes the problem is refusal to pay me you can pay obviously reserving your rights and then if you prevail you get the money back but if the fact that you won't will pay the sanction if imposed i believe so your honor i think we would take the right we would take the appeal and we would mean would probably take the appeal but as i said ultimately the federal court system is ultimate hope it all stems from the single observation our position is that there is no jurisdiction over the state of california and so we've made that special appearance for that purpose there are things that stem from it but it's a it's not an unusual position to take it happens for you know personal jurisdiction in an individual context quite a bit in the case of a sovereign that was the if it's it's part of you for you coming in here to try to even admitted on by the other side that the california case is alive and well and going the there is only us an overlap between the claims presented in the california case and the claims presented here just overlap at the overlap is with respect to otherwise private individuals their restitution claims only whereas california is all the people the state of california governmental and private al system is not a model of the ministry of efficiency it is known acknowledged even indorsed by the united states supreme court that there are difficulties posed by this door sovereignty sisters you know that's what people harm california due to various this court of jurisdiction over our very large number of people yes and would upset the settlement but we have kno n your position we have no authority to to address that legal issue our would you have the authority to recognise that the district court did not have jurisdiction have to approve the settlement that would bar your claims that are being separately pursued and filed earlier and that's and was a big timing issue in all these briefs where the toddler who filed st now when you file a class action you are it a punitive class action whereas when the orange county district attorney filed suit it has preexisting statutory authority and the unfair competition laws that section seven two hundred and immediately there in is the lawyer for the people the state of california when that right is exercised prior to even a motion for class certification at the federal level that time is what matters and so we have acknowledged that you can't we can't come behind after the fact for these private citizens if there has been a settlement but if there's no certified class and there's no settlement the district attorney of orange county can file and his authority is superior in rank to represent those individuals suppose hypothetically every single class member was we filed suit prior to the motion for classification and also because that wasn't done until the context of settlement your question is if it happens between classification and settlement i wouldn't want to be there and i think we would we would have some serious trouble but i don't know how that would turn out i think we would have a problem and we'd have to litigate that particular issue but that's not what's presently before the court it's i understand that classification gets moved later and later but that's one of the problems with moving class or a case in later in these cases is that you really don't have power you have all these absolute class members and when you have a preexisting statutory authority that the da can invoke he becomes your lawyer me and that's what the people of california we in this case we've lost the appellate level but these taste cases have been happening that way the whole time and now this is a new development a law where the appellate court in san diego struck that those part of our allegations it is but i think we'll have some real clarity of the it's properly briefed and we will have an answer you're well over your time on here from the  brought up a number of legal issues both in his briefing and here for use morning and i just want to briefly a set back to why we're here today after four years of vigorous litigation including litigating california state da wants you to get to this court would have to jump through so many hoops and every single leap carries a mountain of precedent to the contrary there are a number of issues that he addressed smarting i think we have been through them in our briefs but to point to just a secondly the d a puts a lot of emphasis on the timing of operations here the fact that the class action was filed but the classroom percent of students the cation before he filed the state court action is there a case that says that the timing of this matters he was unable to provide any authority and there isn't any authority that we're aware of either the only thing you can point to is the intel gender case which simply does a practical problem this was not the st rodeo dating all the way back to two thousand and five this group of claims administrators with a lot of the same lawyers have taken the position that the claims administrator  had authority to opt out on behalf of these plants were they administer of the plans claims and the district court and the central state's case ultimately affirmed by this court there had the same qualms one corporation unrelated to another corporation comes in the court and says oh trust me i have authority to opt out on behalf of that unrelated corporation and the district judge there said i want you to provide me some written evidence that you have that authority rather than face that evidentiary hearing that the judge claims and then the straightest back down and said no that's ok these plans will remain in the class the judge and skelaxin in two thousand and fifteen now with central states and ramrod on the books says i'm going to have an evidentiary hearing as to whether or not you claims administrator is have the authority that you claim to have and again the claims of ministry just back down and said oh no we don't want it and evidentiary hearing those plans will remain in the class two thousand and seventeen judge oric in the light of durham case out in california says i'm holding it evidentiary hearing as to whether or not you have authority the authority that you claim and people out this is a standard we're live plate language that you will administer people's claims i find as a fact that you don't have that authority that's the background against which judge underhill was acting here and it clearly was in his discretion to say given that history with these same zip administrators with the same counsel i want one of the things he was trying to avoid was having the hearing that he ultimately had to have avoided having me and you have to be here talking about this today he wants to avoid having it evidentiary hearing he says have the people send in a postcard if they if they have granted in fact granted you authority to opt out not a single one of any of the plants they submitted their requested post what is your feeling as to whether or not the appellants have the ability to appeal and challenge that the final judgment entered i don't think they do under devlin on two grounds number one they are not class members they say they were devlin says you have an exception to you have to be a party in order to appeal the exception is if you are a class member who timely objected these appellants don't meet either one of those standards when they made their objection and they had they themselves had opted out of the class so they are no longer class what the lowy deanna burg says is we represent humana in this litigation ok and then goes on to say and we also represent other claims of ministry not in this litigation and that letter was not in fact submitted on behalf of these appellants and when you look at the e c you have a form where you have to fill in on whose behalf you're fired wing it court to address the merits alternatively because this problem needs to stop thank you your honor just wanted to make two break points with respect to the insurer's appeal st on this issue of preservation and i agree with mr shadow wins that characterization of the record just wanted to add one point on that the defendants moved to strike the the humana letter on the ground that they were not a member of the class and did not have the ability to object to the class opt out procedures of the class settlement in response that humana dropped this issue and focused on other issues that are no longer at issue in the appeal precisely because they did not have any basis to to object to that issue and as mr shadow indicated they were not at that point identifying that they were representing any other particular clients that are now the appellant's in this appeal the only other point i wanted to to draw on in sort of illustrating the difficulty of the other side's position and the chaos it would cause and why judge and underhill acted well within his discretion to require clear notices of authority the other side acknowledged in the hearing below that there's a lot of variability within the industry and the customers changed within the scope of the class period so it's also the case if you can't do a partial opt out there is no ability to opt out for only part of the class period so as a result of their approach there is there would be complete chaos variability all they want to judge entered hill to accept their mere say so that we have the authority to act on behalf of these hundreds and hundreds of rd parties and we think it is simply cannot be an abuse of discretion for judge underhill to say you have to come forward with more than that and they did  thank you rogers st i just like to say i think it's remarkable that it was noted that this is not our st rodeo on this i think that the history of these cases and is in fact history of consistently ratcheting it up the difficulty in the face of it this case takes it yet one other level where is the rd party administrators committed to him to file a claim excuse which is code but not to opt out that's what's particularly troubling about this case yes it's not the st rodeo this was set up by settling parties to advantage them as to the abuse of discretion and very little time but to judge parker's objection it's bound to discretion and the boundaries of that are the due process right and the effect on the substantive rights that claims administrators are fired and get new clients and it's a shifting field constantly so aren't you in response to argument made here aren't you asking us to do claims administrators when confronted with claims that apparently conflicted couldn't by a simple process forgot which claims were in and which were and that's been taken out of context we submit  and you know thrown in our face that this creates an insuperable problem to address your actual the actual point that you're raising is when this would create chaos it seems to me that is something that could be easily dealt with with a few must either opt out or opt in for a particular claim these are series of claims i don't know why they couldn't be parsed out more clearly it's not difficult as we've shown because we've managed to produce all this purchase information for claims administrators that there is a due process that that the right to opt out is driven and informed by due process here where it's been conceded that there is authority on the part of the clayson illustrators to file a claim a far more solemn and intrusive act on the part of the rd party administrators rd party administrators with respect to their clients it is an abuse of discretion to make this disproportionate  additional burden to opt out it should be easier not harder to be opposite direction is because the due process right belongs to the individual  now the n d l court in this case in ordering remand which is part of this case said that the orange county's case seeking injunctive relief civil penalties on behalf of all the people state of california was a sovereign exercise of police power so that i think we put it puts into the remit of phone is that this area of the conflict between rule twenty three and the th amendment is real and it's being developed now the district court said look it's an interesting issue i appreciate you coming out here and raising it but i just obviously disagree you also said i'm hopeful frankly of awarding