appeal and those are jurisdiction and the immunity for a private attorney general lease from the bench is point of view you might focus on the immunity we may or may not but unlikely to get into all the pendent issues the immunity i think is the one that's really bringing it before us you're welcome to take your time as you wish but i give you that advice i'll start with that your honor of the idea that there should be a separate distinction between private and public prosecutions is not just wrong but it's a historical the very first trials that we have in all of history are those of socrates and those were prosecuted by people who disagreed with socrates and decided to bring criminal offenses against him and that continued in roman times it continued in old english times and it continued in the united states until the late one nine hundred century and only then did prosecution become primarily something done by public prosecutors when did we get prosecutorial immunity as a doctor and the basis of that that much later than socrates and the earliest prosecutions as well because if as you said you didn't have public prosecutors you up which is in the early twentieth century as an extension of judicial immunity and they look to the scope of judicial immunity in the sense that it was an absolute immunity rather than a qualified one  but it certainly does include private prosecutors in this court has ruled so in the case gibson versus eldridge that case involved that's where you they were in fact appointed appointed as in effect a  temporary or part time public official and in cooper which you also cited in cooper the private attorney was not acting as a public official because he was never properly appointed to serve as an assistant district attorney so aren't all of those cases things where private people are serving as particular public officials not simply as warriors private lawyers who are doing something that might be good for the public but i have a two tiered response to that on the first one is my understanding of the gibson case is that the prosecutor was the private law firm and it was they weren't appointed by the government they were selected by the victim and in fact that that was the same law firm that was prosecuting the victim civil suit against the defendant and it's specifically says that prosecutor in eldridge was being paid by the victim and it was that prosecutor that this circuit said i'll just read briefly from that decision eldridge argues that the fact that special prosecutors are paid by the victim munity as the district court correctly new noted however this is not the correct inquiry under the supreme court precedent the test for determining if absolute immunity is appropriate turns on the nature of the function performed not on the identity of the actor who performed it he would also had received an official government appointment as a prosecutor had he not and that that was the distinction in cooper where he had  not and received no immunity well i have i don't believe in anywhere in the record it talks about an official quitman and it specifically does say that the person was selected by both the crime victim and paid by the crime victim in the state there are certainly other circumstances where that applies where there's a private law firm in it's a small county for instance that can't afford its own public prosecutor and it that same offer can even represent criminal defendants at the same time it's prosecuting other criminal defendants so the concept of prosecutor while most familiar with the is a primarily a public official that's certainly not the case universally and it's certainly not a historical experience within california and i i think this is actually one reason why this should be resolved on jurisdiction it's california created a statute called the private attorney general statute and the honorable the georgia king the chief judge of the central district of los angeles looked at that statute and one of the elements of that statute is did the tate of a private attorney general secure public benefit for the public beyond what he has secured for his client if it's not even enough to secure  incidental public benefit in the courts or pursuing a private interest the primary goal of the suit and it must actually be achieved is securing the benefit for the public when you say it must actually be achieved that struck me in your brief you used the word little bit odd because prosecutors real prosecutors have prosecutorial immunity whether they're successful or not so did seems an odd concept that you bring a suit and if you get fifteen cents you're successful and you have immunity but if you get zero then you don't have immunity just because the jury didn't happen to agree with you more we think you'd either have immunity or not i completely agree with the court  and i think the reason that i use the word successful is two things one is dempsey says the fact that my case was successful usually prosecutors are sued by a happy that it's after they lose a case here we won the case i'm that's when they win because then they have a better claim that something was wrong fully done to them in our cases that's what i see yes well i was just attempting to do so narrowly so i agree with the court that it should be broader than that and we take you back to eldridge for one second because you said you did know i've got it in front of me eldridge claims that the state's appointment of the private attorney defendants to serve as special prosecutors violated his rights and we do know that in eldridge they were officially appointed by the state as a special prosecutor while i likewise was designated by the honorable george king as a private attorney general and again i think we're also looking into how exactly does california enforce its false advertising laws i don't think that's something that everyone that brings a  should be a little that's a little different from saying you were officially designated you know i mean i have a commission that says you know i am a circuit judge potentially i think this case about i mean is there such a thing in california i'm just sort of interested i think they potentially  have a case that's a little bit weaker than mine but they all but they do equally have a case on that and again i don't think that that this court if they can avoid to should look into this question of california state law and how california chooses to enforce it jurisdiction in one question it says let me break in to you do you distinguish this from the various types of civil rights civil liberties suits where you can get fees over the equal access to justice act i mean there are a wide variety of acts in which attorneys can receive fees because by statute they've decided that they're doing something that is sufficiently good that we should encourage them by giving them fees are and a lot of times in a general way those are referred to as private attorneys general do you distinguish those from your situation or would they should those be included as well i would say at least someone to sue the other side's litigant when that other side successful especially in a foreign jurisdiction i hope that will continue to be rare and that's just another policy reason that this court should not do so but i f i could get to the jurisdiction issue very quickly it's not necessarily question of pending jurisdiction according to the seventh circuit whether or not personal jurisdiction it says this court is entitled to  to entertain a threshold none merits questions such as personal jurisdiction at the outset and the district court personal jurisdiction proper because real action knew that tactical was in indiana company in court in could foresee that it's misleading r choice well i just want to say again i do think that the only jurisdiction claim here is that i supposedly knew by saying things about smoker in our class action website and that's a class action website that is similar to the want to set up in every case and has been indorse the notice plans by judges i haven't another site called quaker lawsuits similar to some other lawsuit and judge sheberghan the northern district of california ordered that i disseminate notice on that website so there is no purpose of defamation here the purpose of this is to inform my clients of it and it should be the district judge in the class action that supervises that that's what the u s supreme court said  barnard the district judge supervising a class action has limited discretion but should be the judge deciding what an attorney can say about the case to potential class members you run down however much extra time on your rebuttal but you have the remaining republican thank you good morning my name is tim for a look and i have the privilege of representing the james marker company connection with this matter with your permission i intend to focus primarily on the issue that the judge boggs indicated he wanted to entertain today which is the primary issue on appeal the appellant's claim of absolute prosecutorial immunity from suit although i'm happy to answer your questions with respect to the many many other issues that have been briefed in connection with this matter initially i'd like to address some of the statements that were contained in the reply brief which for obvious reasons we haven't had a chance to address at this point the first is the implication that the litigation that smoker filed against the appellant was done in retaliation because mr weston's words he had been a successful private attorney general in a lawsuit in the central district california before judge king the action below was filed on march fifth two thousand and thirteen and the order in which judge king awarded fees was out on february twenty eighth tw almost a year later so as a matter of temporal physics it's impossible for this action to have been filed in retaliation for something that occurred a year later but this whole idea of the time and its passage is absolutely crucial for purposes of understanding the issues in this appeal and that is because throughout the principle police briefing reply brief and today mr weston touts again and again his status as a successful private attorney general and he bases that on the fact that judge king awarded fees in connection with the website and in his mind judge king bless the website and they must be fine and smoker can have a complaint about it but some think that it's important for you to recognize is the website that exists in  current form bears no relationship whatsoever to the website upon which this case is premised you can make the argument with a straight face that the current website is the sort of website the plaintiffs normally provide to provide information in class members you can't make that argument about the original website the original smucker dot com smucker lawsuit dot com website never mention the western firm or any law firm the current website mentions a western firm and has a clickable page with includes its address it telephone number the original website never indicated that his purpose was to communicate with potential class members of the current websites this if we mentioned this the original website never mentioned that the creator the website was representing or the current website now specifically states this to be so and the original website made the following factual misstatements about smucker and its products products are dangerous to public health smoker deliberately lies to the public about his products smoker makes false and dangerous advertising claims to his customers smoker isn't a moral compass at that doesn't go to the whether prosecutors or not i mean it is sort of good jury stuff but you could focus on their theory that  either because of the california statute or because of their general status there entitle to the kind of prosecutorial immunity that we deal with in the that's that's the guts of why they're here on an  prefer you're trying to put it in context but that's not getting us to the legal point the point i was trying to make iran and i'm starting to get there fast enough is that judge king looked at completely different website in awarding fees and so you can't premise a private attorney general status on something that judge king never saw which is the original website when we get to the it to the heart of the matter which is the novelty of this appeal and requesting oral argument mr weston reason that this case is novel because quote no other court of appeals is considered whether private attorneys general and jury prosecutorial muti he's absolutely right about that but i will go farther than that as far as we can tell no district court or state court has ever considered the issue of whether a private law firm should be afforded should minute we scour the relevant california statute we looked at his legislative history we can find no indication that the california legislature ever intended to for prosecut orial mutiny under the private attorney general statute we couldn't find a large you are in what some enterprising loss to postulated that it would be appropriate to award such immunity but we do have the controlling precedent of the president of this court and we have the press the united states supreme court so for example this court itself held in duncan the pact that quote private parties are not eligible for immunity from suit and the supreme court precedent is what vs white the supreme court held that there is no such thing as absolute judicial immunity why versus coal it was improper to extend the doctrine of immunity to private parties but the verses fitzsimmons which is an important case for purposes of this issue today the court held  defamatory statements made to the press by real life prosecutors as opposed to posed to self appointed ones could not be immune from suit and then richardson versus mcknight which the court held that prison guards working for a private company c most recently in philosophy versus the lie of the court did hold that immunity could be afforded to attorneys that work part time for the government but it also specifically noted that immunity should not extend that note that to parties that had no connection to any government so perhaps the reason this issue was so novel on appeal is that no other litigant his had to marry in the face of this some broken line of control and precedent to contend that a private law firm should be afforded absolute what can you tell us about the california statute which your adversary does put in capital which i suppose is correct calling to the private attorney general statute as to other than simply being a way of getting attorney's fees is are there any procedures under it to have one designated as a private attorney general or is it simply attorneys fees for certain kinds of lawsuits after you succeed it's specifically an expressly statute designated only towards obtaining attorney's fees and the only way or the primary way in which you become a private attorney general is to declare yourself one there's no appointment the judge doesn't have a ceremony which awards you that status you basically proceed under the statute notwithstanding the name of the statute the sole purpose of the statute is to permit the award of attorney's fees in certain circumstances you know there's a pretty good argument to be made that if mr weston had been a bona fide real genuine attorney general that he would still be liable under the statute and the reason for that is the original website went so far beyond what is normally prosecution and then sets up a private website in which he defames the defendant or the defense lawyer in connection or a witness even then that wouldn't give prosecutorial immunity under our general law that's correct and that's clearly implicated by the supreme court's decision in buckley versus that since that's essentially what happened is the prosecutors as prosecutor sometimes do held a press conference and made statements that were defamatory about the plaintiff and it was later found that they would be liable were told they would be liable for their statements and could not claim prosecutorial unity then the appellant claims we don't have jurisdiction and in your brief agree your grief agrees that there is no jurisdiction that's that's what you write in the beginning this court has no jurisdiction to consider this matter where where the appellant ineligible for orally which is where we are right that is if we if we for whatever reason get rid of this appeal you've still got a lawsuit going on where you have all your charges and he has all his defenses that's correct we've bought judge cooke was right that you you did have a kind of start out by saying we don't have jurisdiction because this isn't a proper interlocutory appeal that is correct and indicate that we believe that there's a if we agree that there's no jurisdiction then he can still pursue that claim there's no interlocutory appeal jurisdiction he can still pursue that claim in the suit and he can still appeal it on the merits if he loses right that's correct and because this court has shown an interest in this case by accepting oral arguments no good deed goes unpunished it would be our preference to have a decision in this matter so we could have some finale going for  anything else that that your question that's all i have right thank you thank you to weston you have your remaining time for it came out is those enforcing the nation's laws and our state's laws would have to fear interference with their judgment in pursuing the public interest if they were subject to suit and that is the exact situation here california created this statute because it didn't believe it had the resources to enforce its false advertising laws entirely with public prosecutors so it created this category provision and then the private attorney general statute says if you're successful in this type of suit and you satisfy all among other things the element that you have advanced an important public interest and the that was the primary purpose of your case not not you serve one incidental to your private interests but you advance to important public interest only then do you qualify for that so i disagree that it's just there are hearings i take it that there are hearings held to determine that the answer to that question whether the suit that was pursued actually benefited the public yes and i take  steps in that yes we filed a motion in soccer oppose it and judge king over smucker's opposition said you qualify is a private attorney general and that's the only reason we are able to get our fees in that case though this is though  is after the fact in the sense that you could have a universe of lawyers who are trying to do something and it's only because the judge ends up giving them fees that you now would say there are a private attorney general again i would only argue for the most modest expansion of the law sufficient to cover the circumstance certainly a larger one could apply at least it's potentially a little law that a a civil can affect civil court judge unity while judge king was sitting in diversity and i would again say that the court should be very cautious in making a novel decision under california law under what individuals are considered prosecutors under california state statutes and it should look at the jurisdiction questions here which are something that it's looked at quite a bit often and in very similar context the cable decision any sort of state federal or intrastate problem here in the sense of let's suppose