good morning for clarification i represent the appellant's in the appeal numbers seventeen twenty three seventy eight and seventeen thirty four forty three there's actually in the appeal which is twenty three seventy eight there's forty three appellants in the second appeal the reverse the same forty three appellants plus three others but i'm really going to focus my initial arguments this morning on first appeal which is the appeal from the district court ordered the nine the motion to intervene that was filed in march of two thousand and seventeen and denied on may twenty fourth two thousand and seventeen as set forth in our briefs there's a little bit of background with respect to sort of the the procedures and the filings in the in the district court in this case in front of judge miller the clients that i represent are heart of a group of approximately two hundred forty five or eighty owners who have filed separate lawsuits against the saeco defendants that were filed prior to the classification order and then in the court low in front of judge miller and those lawsuits were filed prior to november two thousand and fifteen and  in november of two thousand and fifteen we filed in the in the district court a notice of the filing of three separate lawsuits which would have included as name plaintiffs in those three separate lawsuits each of the forty three class members and we gave notice and i think it was november fourth two thousand and fifteen to judge miller that of the filing of those three separate lawsuits which ended up fifteen notice i think the actual class or the cation no order was in april of two thousand and sixteen jets smith  so after the class was certified the plaintiffs of which included you know our group of the class we represented which was a group of two hundred forty eight of the class members we filed initial motion to intervene for the for really two purposes one of one purpose was to have the court rule that the earlier filing in november of two thousand and fifteen in which we stated that all of these persons who had filed separate litigation to have the court rule that that was sufficient notice to opt out of any class that would be certified by judge miller and we had stated that notice that we were giving notice of an intent to opt out of any class back in the class as an intervening you know what back you would get back in the case as an interview know what we wanted to intervene only for the purpose of getting an order from the district court that stated that we had validly opted out of the class and we were concerned about making sure that we protected our opt out rights in every way that we could so that's where we started in the better two thousand and fifteen we had filed these separate lawsuits we wanted those lawsuits to proceed but we were concerned that we have an order from the district court stating that we had validly opted out of the class and so we filed the november for two thousand and fifteen notice with the district court and i think we gave an explanation and gave case numbers for the other three lawsuits we've filed and asked and stated in that notice that we were giving notice of our intent to opt out of any class that might be certified by judge miller in the court a sufficient election to opt out of the class of ballot would the court do with which you request the court to night that motion intervene without prejudice saying that it was premature because the court had not yet  you know approved of the notice of class sort of creation that would be sent out to the class members we had also in that first motion intervene objected to the requirements that were being proposed by the plaintiff's counsel with respect to the opt out requirements and in that notice they had included certain requirements which included you know providing a notarized signature providing in particular with property name and well name information and we were in the alternative in the event the judge miller did not accept our november two thousand and fifteen notice is valid in the alternative we are asking that the corps consider and the court not include these onerous opt out requirements in the notice of classification that was going out to the members of the class and that those not be permitted because they were necessary for class members to be able to express their intent to opt out of class on june second two thousand and sixteen i believe it was the that the  district court judge miller denied that first motion intervene without prejudice saying it was premature as i said before so at that point there was a denial of our motion intervene without prejudice then in august of two thousand and sixteen judge miller approved the proposed form of class or of cation notice of to go out to the class members and included you know the requirements to sixteen for class members to submit their timely opt out requests so that point we began the process of assisting our clients smiting timely opt out request to the class ministry and we did we submitted a timely opt out request for each of these forty three class members and these opt out requests were mailed to the class their each of those opt out letter requests was signed by each of these forty three class members and they each stated that they were writing to give notice that their request seemed to be excluded from the for thirty three of the forty three class members that were talking about it was in conformance with the exception of the well of benefit cation requirements and for those forty three for those thirty three of the class members that were talking about it did not include the specifically the well identification requirement but it did state that the particular class member was seeking not doubt for all wells in which they had an interest so is in a class member who provides a reasonable indication of its intent to opt out that that submission that opt out requests should be considered as valid and the three cases we've cited in addition we also cited to this court's take up you know what's the standard for determining the bollettieri of a class members opt out request but it did cite with approval to that decision of council on social work education and which is the five f r b northern district of texas one thousand nine hundred five where the district court and here to the established standard that any written evidence of the desire to exclude oneself should suffice and rejected the argument that a class members failure to provide requested technical information can invalidate a class members timely request opt out of a certified class and that was a case judge smith where the eighth circuit affirmed a district course of the season to permit their attorneys to sign the opt out letter request on behalf of the class members but here every single one of these forty three class members and their letter requesters no question about the fact that they sign the bass majority of them met every requirement except for the well a benefit cation requirement that was imposed by the district court but certainly in this case what you have in reality is not just a reasonable indication of these forty three class members intend to opt out of this this class action but absolutely an unequivocal request to opt out of this class action and that started in november of two thousand and fifteen when they gave notice of the fact that they filed separate royalty underpayment litigation and the so then after all of this occurred the  court and after the latter request as miss work were submitted i know my time's run a little short but after they were submitted the defendants the c co defendants they actually filed a motion asking for some of the opt out letter requests it have been submitted by various class members to be rejected but they did not object to any of these forty three class members opt out letter requests nor did the plaintiffs so we have a situation here where there were a bunch of objections to some opt out letter request from some other class members other than these forty three saeco didn't object to these plaintiffs didn't object to these in fact said that any class member who had given a reasonable indication of an  to opt out of class that they should be excluded from the class notwithstanding that inge on in january two thousand and seventeen judge miller enters an order that effectively says that any class member who  has basically not complied with the property name well name requirement that they should be excluded or that they should be included in the class and that their opt outs should be rejected w well name again if a cation information jet smith is information that the owners these class members get from the c co defendants that's your only source of getting this information they would get the information from the secretive and if they don't have any independent information other than what they get from the sea co defendants with respect to the well of it and benefit cation to judge miller expressed some concern that there were multiple four persons by multiple lawyers and that he was just concerned that that that he needed to get a handle on who actually was making which opt out requests and under what circumstances and that all of this information was really just about trying to make sure that it's the right person the right well the right property well i think i think in his january two thousand and seventeen order judge erickson i think fairly stated that he had extensive earns about some of the other opt  necessarily with these forty three because what happened he looked at this whole big mess and he said ok here are the rules are going to apply to everybody and i'm not really having any exceptions because no one will be certain of what we've got is that what happened yeah i think  what happened i think that's sort of what happened it was after that order that we filed an additional motion and of being seeking to have a at the judge entered an order we filed i think it was a march thirtieth two thousand and seventeen we f fandom the saeco defendants have that well information and the only reason that worldly owners have any information about it is based on information they get from the defendant so there was no reason to have a well of benefit cation information so what relief are you the denial of the motion intervene and an order that states with instructions to the district court that the district court should accept as valid the letter requests that were submitted and signed by each of these each of  there was an earlier smith versus saeco case and i think your honor was on the panel where they had a similar without prejudice denial of the motion intervene you may recall that it's eight sixty five fed third ten twenty one where there was a without prejudice and that portion of the intervention was considered to be a non final not not appealable or you've got same situation here because it was a denial that presidents so the argument has been advanced by the c co defendants that you know that that should be the starting to date for obligation to appeal is simply contradicted by your dad saying he should've let you intervene on the second motion to litigate whether the opt out letters were at or were valid that's correct and since he wouldn't jr being you want us to order that we should have been allowed to intervene why should we decide if we do that why should we decide in the first instance whether the letters  valid well it's a fair question just carlton but you know here we are in a case that's now been tried well and all it's been tried you know that stick with the microphone just so we so you want us to say basically that you're opted out the case has been tried you're not bound by the judgment in your forty three people can proceed on their all that's correct you want us to do that is correct and you and if we just tell the district court to rule on the letters  i suppose he might allow some remain not allow any well it's a fundamental similar question you know is this case law from the other circuits as says if you go if a class member provides a reasonable indication to opt out that should be considered as valid should the eighth circuit adopt that there is guidance that's needed here i will tell you that i believe that this issue is getting abused i think that the rule says i think we talked about the rule twenty three requirement what it says it ought to be a simple rule you know we're quire meant that the opposite that the class member has a a right to you know to opt out and that that's it's just a simple request and that you don't put these add ons add on requirements as part of the opt out request and we talked about what the i think it's called the federal judicial center is giving guidance on this there are to be a very simple non onerous requirement that's imposed on the classroom and every circuit that's considered this issue has adopted this rule of law that if that if an opt out letter requests it's timeless method and gives a reasonable indication of the class members in to opt out of class that that should be considered as a timely opt out request notwithstanding a failure to provide you know to comply with some additional technical requirement that may have been approved by the district court with one and the are net two people yes you have the people numbers are seventeen twenty three seventy eight seventeen thirty four forty three well now on the thirty four forty three you're appealing the later but our position is if you look at the rationale of devlin versus scarlatti that that it's an appealable order obviously in effect that only affects really three of the class members but we think it's an alternative basis  some reason there was some issue about the intervention on an alternative basis we appeal timely from the final judgment if you go straight to the matter of what what was the justification for requiring the detail that was required in the opt out request specifically with regard to the well information yes  first of all the well information we didn't pull that out of thin air their prior only guess cases clearing ones i've been involved in other turnings have been involved noon or that requirement was ordered by the district court notice their carve them and their interests in certain wells out of our damaged model that was presented at trial but why did you need the well information in the opt out in order to exclude those be in order to identify all the wells that all of those particular role the owners were in so that we could carve them out oh i part damage model but didn't you have the well information you mean if you had a well owner who says i want to opt out don't you know what wells that person is associated with to a certain extent your honor but i don't think that we necessarily knew all of the that information was necessary and that's the part i want to make sure we understand well why you didn't why you couldn't sort those people out just based on the letters that were submitted well part of it was confirmatory because we had the data that we received judge call it and was like two terabytes of data and drilling down to figure out each particular well that overall team owner was in exclude themselves or not the easiest task i was going to hold on are you saying that you do not have a program that identifies royalty holders by name and address so if in fact you get something from somebody that  my name is john w smith and i reside at such and such address that you do not have a way of identifying which well interest that person has i mean is it possible that there's an oil company that there operates with that small addresses and they say they want out on every well they've got to know who they're paying more i mean you know i get where there is fractional interest in all kinds of wells and that there may be one hundred people or sometimes two hundred people in on a well because it could be a large pool the unit and i get that but at the end of the day somebody has got to have a record of who they're paying all the royalties to correct correct and it primarily was can needed to procedures but you never said that that had to be that all the information was necessary until later and well i mean we went to the jacket at the time if you thought that you had insufficient notice to know who the royalty holders really were and what their well that's correct your honor we we did take the position that judge miller we encourage the district court to exclude royalty owners who reasonably indicated a desire to opt out oh and noted the district court's discretion to disregard violations of notice procedures and finding an excuse will neck and to go to comply or find substantial compliance and hundreds of owners including many that were represented by or able to follow the district court's office out instructions and we believe that the district court acted within its discretion given those circumstances to reject the exclusion requests but  judgment i think that's a very small percentage i'm not off the top of my head i want to say there's two to three hundred that opted out so not not a significant amount twenty five percent i think it's think it's less than that just call thing once and then but we brief the technical aspects of the opt out requirements the the these interveners are complaining about and i understand that mr street will be addressing those in a little more detail in a few moments and to avoid repetition and hopefully shorten this proceeding will the further our briefing and cede any remaining time to mr story but one point i'd i do want to court me look no further than what judge miller said at the in the trial commending us in our work to our client that's not something and a judge says of class counsels inadequate we were adequate but what we have here is miss smith and her counsel it was just the beginning because the route trial they gave the jury the impression that miss smith and her counsel or her being a class that we were adequate counsel and it was only after they secured favorable judgment by telling the jury that miss mithun or council were hard in the class that they change their mind and now say the district court got it right on or adequacy if you grant intervention do it for the right reasons but not good morning may please the court air and street representing the apple e's the southwestern companies of focus my argument principally this morning of course subject to the court's questions on the arnett one appeal that's principally been discussed so far of course i'm happy to answer questions about any of the other intervention questions on the arnett one appeal that mr barton has argued i want to first emphasize the untimely nature of the our net one appeal same arguments that were raised in their earlier intervention motion that chief judge miller denied back in january twenty seventh and all you have to do is look at two things to know that this appeal is untimely number one you just have to read chief judge miller's order in may it's about three pages law he says i already rejected all these arguments back in january then you just have to look at what the our net one of palettes told this court on a petition for writ of manda and seventeen so right after judge miller denied the initial intervention request arnett comes to this court and says we need a writ of mandamus because judge miller committed clear legal error in quote rejecting the opt out requests so they're coming into court this morning and saying judge miller did not reject the opt out request back in january he didn't do that until may that's not what they were telling this court in if you look at it as an appeal from the may twenty seventeen order we say that in substance the arnette one appeal is really an appeal from the january twenty seventh order because if you look at that order it actually addresses in great detail all of the same challenges to the opt out procedures that they're raising now and indeed they came in the court to get that came in to this court again just one month after that january twenty seventh in order and characterized the january twenty seventeen order as having committed clear legal error because it rejected our op the rejected their opt out requests no it wasn't that the denial without prejudice that they were still on it was formally noted as a denial without prejudice a judge miller went on to address in great detail all of the same opt out arguments that counsel is raising this morning and he did that in such a way that are not one immediately came into this court and said that january twenty seventh you know order rejected our opt out requests we need immediate relief but that was and that petition was denied and we had the other case that was pointed out earlier where we said there was no jurisdiction to appeal from now without prejudice and so why isn't january an appeal well i don't think it's not appealable well i guess a couple  reasons first of all arnett too is trying to appeal that order now and we say it's untimely but i think their own actions show they think they can appeal the january order that it wasn't some sort of notice well that they really didn't i mean a petition for mandamus is not an appeal a said they appeal they are now seeking to appeal the january order i was referring to the separate arnette appeal arnette to appeal the only order they claim to be appealing is the january twenty seventeen order so they're saying two things they're saying on are that while we could appeal that order that was just without prejudice i understand the inconsistency but there's still a question of which is correct i mean if there is not appealable maybe arnot to cannot appeal because either it's not a final order or is clearly untimely it's our position that it was a final order i don't believe the court's earlier opinion said the mere fact that something is denoted as being without prejudice i mean that was i believe was actually a denial as moot as what he called it and that's not a that's a final judgment on the intervention request he says sure you can try to intervene again but he denied intervention at that time but then again he went on to finally resolve the legal issues that they're arguing here this morning  again i i i i don't think i need to repeat all of the reasons i think that that's a final order that could have been appealed but i will i will there are no other questions your point is that order could have been appealed and they're for the leader of the sun timely correct and i think that's the teaching of this court's opinion in the green forest case that we cite in our brief their argument their principal argument as i understood it was that the circumstances had materially changed between the time of the january order and the may order and our position on that as there is no material change in the circumstances just read judge miller's may order he says i've already dealt with all of this a three page order you know he and again they're appealing that order and they correctly represented on their mandamus that that issue was finally resolved i thirty no other questions on timeliness as to are not one i would briefly turn to the opt out procedures and we agree with mr kramer that those were with and judge miller's discretion and i would i would add an additional reason to what was discussed by mr kramer and that is what judge erickson referenced earlier that judge miller observed what he called quote unique circumstances in this case that there were lawyers there were multiple lawyers trying to opt out the same client and that happened time and again and so i believe one thing he was trying to do with the well numbers was to make sure that this was actually the individual opting out the individual who has access to the well information and not some lawyer who might swoop in and attempt to opt out a multiple individuals who the lawyers may or may not have access to that information i would also mention that is it a problem here we are is that initially these forty three the owners themselves were the signatories to the  that's right and i think in in this particular instance you did have signatories but they knew the requirement back in january and this is and this is in the chief judge miller's order he says these individual s in the arnett group they knew my opt out procedures they had counsel same counsel they have now and yet they declined for whatever reason to comply with the well name and number request so it was more of a i think a concern broader about was there ever really an old fight or discussion before the court about including that particular requirement in the opt out procedures was it simple noncompliance i think it was a simple noncompliance with that question was briefed in respect to the motion to intervene that was denied on january twenty seventeen whether that was a reasonable that mr cramer mentioned and i think it bears was your use in the first time it was raised to the district court that that requirement was unreasonable was after they were excluded or after they were not allowed to intervene they were not allowed to intervene and then they submitted then they again i'm sorry the request where the proceed yours let me back up the procedures were so that they were clear submitted and they moved to intervene and that was denied and the judge says they knew what my procedures were they had counsel i've got these unique circumstances that require me to put the notarized signature requirement and the well name and number requirement and he goes on to say these are not onerous requirements the substantial majority of individuals who sought to opt out were granted a request opt out this is information this is not just a matter of folks throwing away their royalty check stubs this information was easily available on the website and i would say the chief judge miller went out of his way to accept requests that were in substantial compliance with the opt out procedures he didn't he didn't you know slavish lead here to the letter of what he would what he ordered he accepted requests where the royalty statement was stapled to it didn't have to go through and name all of the particular wells so long as they stapled do it then i believe judge miller knew that was coming from the individual and not from a lawyer what was unique circumstances again that requirement the well numbers well it was the the fact that multiple lawyers were opting out particular individuals and you can see that on page fifteen of his january order and in fact he does mention that there was one motion intervene listing a person called o'neill represented by barton and then there was another attorney claiming that she represented mr miss o'neill so even in this particular fly you would want the notarized signature from  you want to use belt and suspenders so that's often used the gates of it's not really us i think it was something that judge miller who was familiar with the players in the case of the on the ground action i felt that was necessary so i'm certainly not using that in  that was the first time they could litigate whether deviations from the procedure were permissible and so there's a change in what they're trying to litigate between the procedure people who submitted notarized request but they willfully failed to comply with my well number requirement and i'm not going to allow them to opt out so he rejected those questions in the january and we think that an argument dress yes and that was similarly situated to the arnette to appeal in the sense that both of those notices of appeal are untimely on their face it more than thirty days after the orders that they purport to appeal so both of them are asking this court to dramatically scarlatti in a way that this court has questioned as appropriate in previous cases and in a way that would cause the devil a narrow exception to completely swallow the general rule that you have to appeal denials of motion to intervene with in thirty days so we don't think the court will even have to reach the counsel adequacy question or the merits of the particular opt out procedures in this case because all of the appeals that present those questions are untimely amenable to giving you a minute if there is something you heard that you feel would it be helpful to us to respond to i do on the two things one we filed the first motion intervene and have proposed all these requirements but he had decided what what they were going to be so he denied it without prejudice and said that was premature that's what he said this or that when the motion intervened which they're saying was the same as is as as what we asked for later that's not accurate we didn't file another motion intervene until the one that we filed in march of two thousand and seventeen that was after we had then gone ahead and because the court of decided i'm going to i'm go put in all these requirements we didn't file any other motions to intervene until march thirtieth two thousand and seventeen at that point we'd already smith many of the opt out requests what we said is we we asked in that motion they intervened for the court to determin that the opt out letter a question we made although they didn't provide the well information that they were still valid because they recently indicated the class members desire to opt out of the sort of fight class we cited the case law context was completely different than the earlier motion tanner vein which had been denied without prejudice in any bat castle case talking about the january two thousand and seventeen or we didn't you know file any other motions to intervene other than the two that are here we time lee appealed from the second motion the inner being which was a completely different context than the first let's just call it and was inquiring about and did so on a timely basis because that order came out and on may twenty fourth two thousand and seventeen we filed a notice of appeal within thirty days of that so that the the motion that the appeal from the denial of the motion intervening is was timely and the appeal is timely in this case and that any when you say coun order is not an order on your motion no it wasn't an order on our original motion intervene they originally motion intervene was denied before the court the court ever issued that the original motion was denied before the the motion to intervene on behalf of two hundred forty eight individuals is so there must have been some motion intervene and being well perhaps at that point there the district court presented it that way but there was a motion they intervene that was denied without prejudice prior to that and in any event we saw it and we hadn't really thought we had renewed the motion after being i mean it was denied without prizes and as i recall we hadn't renewed it but in any event later on we asked the district court to consider whether or not they hit the opt out letter request which we had submitted which would submitted late did not satisfy the well  dedication requirements for the reasons i mentioned whether or not bat those letter requests should never less be conserved valid based upon the case law from the second at the tenth circuit that any ok perhaps perhaps it was but i just wanted to clear up that our clients were parties to the apparently yes sound but at that point i mean the court was making or a decisions at that at that point about you know what was a valid and not a valid opt out request and we were trying to seek relief from that so we filed the later motion intervene for the purpose of getting the court to to look at the issue of whether or not even though we didn't comply with every single one of these requirements that those opt out requests were never will be less valid because they expressed a reasonable intent to opt out for your presence this morning the arguments you provided to the court in the briefing that submitted will take that case under advisement and move on to the next related matter