good morning your honour's may it please the court my name is burke you were and i represent appellant and objector at lindsay loomis ms loomis appeals the district court's overruling of her objections to the final approval of class action settlement on the grounds that class counsels conflicts of interest defeated adequacy of representation as an initial matter i would just like to say the district court erred i'm sorry what was that i know in your brief you said it was the novo review but now i've looked tonight i don't think it is i guess i'm trying to figure out where you came up with his idea would  it's all for a untimely mess and it's not a dispute of law it's a question of fact to be determined by the judge whether when mrs whether and when was signed the objection and corrected it and when i went to hamilton brothers lumber or balkan seems to me this is an abuse of discretion decision ok it may well be i just know that and i believe you do if it's abuse of discretion i would just say that the objection let me take get the facts here objection was filed on february eleventh two thousand and fifteen direct at that point it purported to be a pro per objection direct is not signed by lois that's correct was not signed by counsel that's correct then on march twelfth counsel appeared gave the a black and white copy of the objection that had at that point been signed in blue and the blue original stamp and said it was an original document how could it have been an original document well your honor i'm not sure exactly what the original was stamped on the document for but it wasn't intended to deceive the court it wasn't intended to deceive the court as an original because it wasn't an original i don't believe it was the original because the original was actually filed with the court on february eleventh well the original that naveen the signature we have that is true but there's no requirement that it be signed number one and that rule eleven a federal civil procedure allow it to be corrected that permits that the lack of signature to be corrected that's in the rules of federal procedures point doesn't to me rule levon also require everything that is filed to be signed that rule eleven i believe it does but that's to a test to harass a t i don't think it requires an objection to be signed i don't see anything in the district rules or the northern district rules require that i'd like to if i may quickly move to the to the merits  g we get there it's as i understand your theory it is that there were two subclasses and that it was a conflict for counsel to represent myself and also to represent the named plaintiffs in both their individual i'm class capacities but that doesn't appear to me to be an actual conflict it's a potential conflict but i don't understand how in your view it ever ripened interview and he sort of actual conflict that would be a problem first of all i would just like to say that i think i believe it is an actual conflict when you have two classes competing for payment from the same and same font i believe that to be a conflict but in this court in case vs specifically under does not require an actual conflict to be proved it only requires the appearance of divided loyalties which i believe exist here in spades you have bramhall as representing two different classes each compay competing for payment i believe that plus the fact that he was representing so in your view in your view and every class action in which there are sub classes that have slightly different types of claims there has to be a multiplicity of lawyers every some class getting its own on pain of having any settlement and i know is that your view my view is anytime you have two classes competing for payment provide a adequate meal and rest periods failure to provide adequate statements and waiting time penalty is right that is i believe over century have a limited font don't we in fact and if we accept your theory need actually maybe four classes maybe even eight if we divide them between pet stylista nonexempt because the folks that are asking for their unpaid wages back may have differences and different interests than the folks asking for failure for remedies for failure to pay the adequate meal and rest periods they may have different interests in a remedy for the folks that want failure to pay out what we'd statements and waiting time so what if we accept your theory doesn't that mean there has to be at least four maybe even eight different sets of council no i don't believe so why not i believe there's a distinction because there has to be a line drawn on which classes how the class are separated if it weren't that way how would you separate even the best stylist class from the  your if you will your answer to my colleague clings to me the fact that in this this particular decision made by the district court was made again on abuse of discretion basis wasn't it  believe so you're on a clear abuse of discretion in other words it's got to be more than general abuse it's got to be clear abuse right correct your honor so i realize that you want to look at people x ray department of the disqualification and that in my book says i have got to look again is this an abuse based on the case law that's in front of me and i realize you can have an argument your way but i realize also the district court as that way today has a chance to make that decision itself so again it's a discretionary decision and i'm hard to see why given radcliff this would be an abuse of that discretion when radclyffe your honor it that it dealt with brad cliff and rodriguez versus disney or both read with but dealt with improper incentive awards with that were taken away they were moved they were remove here you don't the conflict was never removed and also this happened without an adversarial motion for certification this this issue of conflict was never really dealt with by the by the lower conflict was removed in radcliff the conflict was removed in rodriguez that i guess was my worry is that i can't really look forward to what's going to happen whether removed or and removed what i've got to look at i given my case law on the books at the time the court makes that decision is an abuse of discretion i mean is it totally out of it can it never work and i couldn't find it i can't even if i disagreed and i have made it differently i can't say what the district court did with that and i all deference they're not general abuse this is got to be clear abuse which to me says it's probably illegal i can't find that well i believe it i believe that this case falls in zack exactly in line with walker versus apple inc case versus pacific lumber i think the facts are they are almost identical especially and also lou versus my last i think those fact patterns  identical to the situation and did we in those cases say the court abused its discretion i'm not sure that the court it says i mean i resent i read the decisions i'm not sure the court isn't saying the same thing in those cases i'm saying the district court was the best one to make that decision well i believe that i'm not sure i can't say offhand whether they they found an abuse of discretion i only can say that the courts agreed with the disqualification your client ms  think that she was being treated appropriately from this limited fund she had a right to opt out didn't she and why wouldn't that have solved the problem that is true they can opt out but you can say that with every class action who's watching who's watching the absent class members and he looked at the entire scope of the settlement terms including who would get what and under what formulas the district judge concluded that this was fair for filling the district judges responsibility and if an object or doesn't like it the objector had the opportunity to opt out that that is true but i think like i said i think you could you could argue that with with any class action i think the issue is was there a conflict and was it appropriately handled i don't think it was dealt with in this case thank you counselor you've exceeded your time that will give you have met for about on the time good morning graham hollis move least court i'm here appearing for all three subclasses as well as my four individual clients to to go and start with the unishe of thing because i think that  probably in and of itself here is this would resolve the case there is no evidence or explanation has been presented even to date not even before this panel as to when this objection  actually filed and whether it was actually signed by the proper objector at the time in few of the fact that the district court went on to consider the merits why shouldn't aside i think that i'd be happy for the court to resolve this thing on the merits i think that either way the decision should stand in the same way that the district coop caught up with the in terms of  that even on or even on the motion for reconsideration judge doublers said the object was unable to explain why a photocopy of the objections contained in the original signature and was unable to stay when the documents  were signed so there was no evidence but i think the district judge wanted to be sure to address the merits to make well that's called own merits so i'm interested at least in in hearing your view on whether it's permissible to sympathetic to the plight of the district court to have to handle these types of cases jane in day out in approving settlements and dealing with situations where there are our objectives and judge area it was not clear to me as to whether the pad stylist class in fact did have separate counsel because there were fees awarded also to capstone which i  you're looking out for the interests of that subclass yes that in fact there was a separate lawyer the capstone did intervene into the action for purposes of representing the pet stylist cla discussions during the settlement discussions during the there was an amended settlement so it was while the settlement discussions were going on there was a settlement agreement they intervened and then there was an amended settlement agreement that came along and in fact counsel from capstone is here present in court ryan who they we were still lead counsel for that but they were also there in the case representing the interests of the pets and  only that's up to us that's correct john so back to what your comment about that tiger and radcliffe in my day job as you know i do sit on the district court so give me a bright line test how do i know when it is appropriate to facts of each particular case i can give you an example i deal with these cases all the time so for example in a meal break case where you have say in a retail facility and you have a manager there and the manager may also be anally paid employee  maybe a nonexempt employee in the rank and file workers may be nonexpert going to be not exempt employees as well oftentimes the systems are set up the prep practices and procedures that the manager might determine when the the rank and file people should take the breaks so if you had a class that consisted of a meal break violations and you worked contending that both the supervisors and the super supervised work were missing mail breaks it probably would be a difficult conflict of interest to resolve for an attorney to represent both the supervisors and the rank and file employees in that circumstance would you generalize that want to because if the best we can do is say it's a case by case basis so be it but i think it would be more helpful if we understood what is the criteria under which it just records should decide whether separate classes do were do not need separate counsel well i think the district court does need to care for the exam in these cases and make that determination and i think judge what criteria well you need to be able to determine whether or not the interests of the class are going to be so suffering if the some irreconcilable conflict here each of the four plaintiffs were members of both classes and in fact mrs loomis is a is a is a member of both class and so usually when you deal with conflicts of interest it's more that with the issues of dealing with attorney client confidentiality but here you have the same clients that are imposed classes or in your example the the supervisor might actually be responsible for creating liability for the other folks actually and so by that the fact that what's the significance of the person being in both some classes it is that they can't be really separated out and it's just a question of you know creating a before they became pets stylists they make more money as pets it's a natural progression for them even as a trainee they would not be compensated as in the same fashion as the pet stylists were and in fact it was the creation of the subclasses that made the settlement even more fair because it allowed those people to be compensated at a higher level that was commensurate with the types of damages that they were suffering because they were compensated higher in a different fashion on a commission only basis so why is your case different from m g m from which one can learn the supreme court's decision and come well that's the one where they had a future class needed separate separate council people who hadn't yet been injured well here this is there's no future for us here in this case because everything is going to be cut off and in fact there's even injunctive relief included representing pet smart and i actually would like to start with your question doesn't because i think it's an important one and unfortunately i can't give you a clear answer because it's a well beyond the scope of this case what i can tell you is that there's a clear delineation on one side given the case law and on the other where our case falls one thing we do know from the controlling cases here is that when you have a situation we have multiple conflicting ongoing class actions or you have agreements with the class members that  constitute some interference or agreement with respect to the representation we know that those are cases that fall in the bucket of you need separate counsel we know that from right cliff in the other cases and then you have this case which falls on the other end of the spectrum and that is a case where you have a sum of money being claimed in the settlement it by this point it's always going to be a fixed sum right because we know what settlement amount is whatever that amount is and there are multiple groups of employees who have overlapping but not that is not a case where you necessarily need separate counsel that much we also know what happens in the gray area that's beyond the scope of this case i think it's beyond what's currently before the panel but i would say that granting the object objectors position here what that would do to your day to day job it is make it much more complicated for and encourage objectors to come in at multiple points in the settlement so so just quickly with another thirty seconds or so i'll approval and agreement with the objector in this case would encourage objectors to try to find them all to multi variant subclasses that judge simon was talking about if the district judge says wait a second this is a case where we need subclasses it encourages an object or to come forward and contest that determination if those subclasses have separate counsel which as you point out just were they did in this case it encourages an object or to challenge that the term nation as well all of these issues were for before judge cavalia he issued a twenty five page well reasoned decision with respect to the approval of the settlement and there's simply no evidence of a clear abuse of his discretion in this case what relevance if any do we give to the fact that the objector could have opted out and pursued a separate claim when we heard mr huber argue that that should have no relevance at all because that would be true in any situation with an objection do you agree with that and or if not what you disagree well what i would say about the objections iteration it is true that the individual objector could opt out that's somewhat irrelevant to judge davalos job which he performed so well in this particular case of reviewing any issues that he independently sees in the settlement agreement or that are raised before him in the case of an objector and he did that here so the fact that she has a potential exit strategy to preserve her claims allows her to pursue them separately but the objection process running its course the way it did in this case allows judge dabbler to do his job of considering whatever infirmities there may be with the settlement and addressing them before final approval is given thank you thank you just very quickly your honor i would just like to say that even if the document had to be signed it was still filed on the last day within the time frame and it was corrected which is allowed by the rules i think not only not again except in the what's the difference in abuse of discretion and clear abuse of discretion i don't i don't know i think it's probably like pornography you know when you see ok fair enough bad to say one more thing about  in capstone didn't could not have resolved this one because class council still ambleside even though he that council is there and the greek came out on the winning side they got there on the two thirds side i have nothing further than