morning good morning your honor may it please the court my name is joe bowman and i'm here on behalf of the appellant's in this case the district court committed legal error by ignoring the bright line rule that when classification is denied an action is stripped of its class action character and any applicable time time bar starts either resumes running or continues running the former putative class members at that point to the extent that they have any still existing claims at that time have to file their own suits or move for leave to intervene in the pending action or take some action to protect their own rights the district court in this case denied plaintiff's first class certification motion in june of two thousand and eleven after that date the former putative class members his claims were not already extinguished had to do something to protect their rights but they didn't do anything not one of them did none of them filed an individual lawsuit none of them moved for leave to intervene none filed a claim with the kuwaiti ministry of social affairs and labor it wasn't until two and a half years later that the district court entered the classification order revisit the issue your honor he actually said denied he left the door open but the door is always open for revisiting an issue of classification because that's something that can be revisited any time up until judgement and  supposedly terminated may have two thousand and ten may of two thousand and ten it already a year had been that's correct but people were proceeding down with the putative class at that point so if i take your argument literally game over at the time of we're all right it depends on if you apply american pipe or not because the complaint was actually filed in april of two thousand and ten right before the  even if you apply american pipe i mean we're still in the same position here because even if you consider it told from the time the original complaint was filed until the denial i mean you can't be avoided that this was a denial the you've done it but after the denial until the class was granted in rough terms was about eight months is that right the first class certification motion was nine june of two thousand and eleven it was on you know we don't think we are your honor tell me why not i'm just trying to understand that because it ran i mean first of all we do believe it is backtrack two seconds i neglected to ask for a three minutes on i'll try to help look and thank you but going back we don't think we're are within the one year because we do believe this actually is a statute of repose in the first place which means it runs but in the second place i don't think i don't think that it stopped running after after the first of denial the fact that there was a subsequent classification that was then vacated which and i don't think that that means that it stops running again why not for that period if it's rendered and nobody that i don't think it has any effect your honor and if you can't we can add we counted we actually did this counting at one point you can't there's two hundred thirty one taste between june twenty fourth two thousand and eleven and there were ten two thousand and twelve which was the date of the second the date of the first time the class or it was granted that's our eight months  that's your eight months there's one hundred thirty five days between july two thousand and four when the ninth circuit reversed and december sixth two thousand and thirteen when the court entered the classification order now an appeal that actually adds up to three hundred sixty six days i know but it also depends on whether you count when the class or was granted which you don't have any control over could be still pending in the district court in some district court so isn't it when they  is you're on it because if it's already been denied once it was stripped of its class action character at that point i don't think it's appropriate to consider it a class action until or unless a court actually rules again at some point that it is  period running again and you can't read so you can't buy later on entering a classification or you can't resurrect a time barclay in that case it's really actually very close to this one is called around to from the invited the district court to reconsider the district court did reconsider and this time around granted certification but when it went up on subsequent appeal the fifth circuit said that because of that the claims of the putative class members were time art because the period of class members hadn't acted between the time of classification denial and the running of the two year period of limitation before the class or ticket before the class was certified it might but it is definitely in the distinct minority your honor i mean all of the well we're not going to are used to that yes your honor but i do think you have to follow tosti and i do think you have to follow the cases that the cases that order had included the magic words without prejudice said something along the lines of counsel you haven't given me enough here to decide this class certification motion so i'm going to reopen class discovery and i want briefing on this this and this and i'm going to have a hearing in time is past i mean if if if we take your original theory right here is that by the time the class gets denied initially there's nothing to be done it's like it's a lot that would still you know i don't see how chang anything that under he way law that they distinguish between statue repos and statute of limitations i'm not aware of anything under current law that says one way or the other all they say is you have to bring it within a year or you can't bring it of all that you to repose is is to give some protection to the defendant certain classes like in the products liability or whatever but here it is clear from kuwaiti law isn't it that this employment law is really to be construed or it's on the of the employee they're not these laws were not created to protect the employer correct well your honor i think you could say it both ways at the time bar that protects the employer as well as the employee but the intent of the law  least what's been given to us we have to do for the research is that it was to protect the employee who are well the intent of labor laws i think is to to govern the relationship between employers and employees so you're saying no that wasn't the intent that's not what's in the record i don't believe that is your honor i believe the rule is simply what it is that an employee has one year to bring a claim by a claim with the ministry to start your action there are there are good reasons for that bright line rule your honor first of all the usual rule is that litigation is brought up by on behalf of individuals or shouldn't be any reason for people to get a better shot simply because there was a class action the second is that once a classification is denied the class the putative class representatives no longer have any fiduciary obligation to the class peter to class members they don't have any objective reasonable basis to believe that anything further is going to happen that's what the second circuit sat and the eleventh circuit sat and the third reason is that as this court has recognized that american pipe and crown court represent a balancing of the interests between plaintiffs and defendants and if you can reserve your remaining time i do your honor thank you may please the court counsel i'm dan williams on behalf of plaintiffs and the certified class excuse me i guess is tempting sometimes to talk about bright line rules that we can just apply inflexib and make our lives simpler but i think as is already clear from the discussion this morning there is denials then there's denials but if there is isn't there case law that basically said in the case of class rulings that there's not denials and there's denials there's denials or grants but there's no provision no sort of denial that there is case law to to that effect but i don't think it's in the context like we face today where we have a denial that's not really denial based on the invalidity of a class the judge clearly wanted more information from us to say ok you guys got to tell me what to play here and whether common issues really do predominate and where the class mechanism is superior and then by the way i'm sorry to interrupt but as i recall there was no hearing before the original order w is without prejudice we could have based on our reading it was very very clear the judge was saying i need for their information from you i need for their briefing which is exactly what we did but that is correct we did not have an opportunity to have the thinking that the benefit of the thinking of the district court as he was considering our original motion as a as a former district judge i have to ask you this i hate to use your time but so to what extent in your practice are the six month the six month reports at play here i mean was there i know this district judge is a fantastic judge of course we all know that but to what extent a judge is driven to close out motions by either denying or granting them so that because you file in march he rolls in june the six month times he's in between the two and he isn't even at six months right that's right but it's always in play well i'll be careful judges want motions off their dock absolutely and and  especially those with the calendars and and so it's completely understandable but the but that's part of our problem with defendants argument here is that the rule twenty three and whether to aggregate these claims it's a rule twenty three analysis and as an american court with american workers working for an american company rule twenty three simply allows me to aggregate these claims and not require everybody to file separate claims and clog up the docket even further and so whether he used the magic words without prejudice or or whether he didn't i just can't imagine a sensible legal system that says that's determined so that the few circuits have seemed to say exactly that   asked the arizona supreme court to help it out on arizona law did an excellent job talking about the tenth circuit case of joseph vs wil and it just simply makes more sense to us at least obviously it's self serving but it still makes more sense to us that whether it's a statue of limitation or a statue or repose the class action mechanism simply allows cases to be aggregated and the tolling applies and it doesn't defeat be alleged benefit of a statute of repose simply by  the class action mechanism to function well the counsel for i t t says even if your argument is accepted that far that it's like a statute limitations therefore you have tolling that hoo you missed it has that ever been the case was never determined in that manner by the district court correct so if we agreed to you up to a point do you think we would need to remand it so that it actually could be a determination as to what was or wasn't told i don't believe so because because i think the facts are clear there's nothing that the district court needs to decide further i think it's just the legal analysis we bring  to the the posture of procedure in the case that doesn't make any sense to me what you just said ok translate that well i can't forgive and maybe i'm missing something but that i can't think of anything the district court would determine that it is capable of determining better than this court that would help in that analysis but this question of repose versus limitations in your research did you come across any american jurisdiction that had a statute of repose as brief as one year i have not and usually what we see is we saw in at least  american situations we see a statute of limitations that some period than a longer statute your pows were defendants you have to say ok i don't have to worry about things anymore but i have to be surprised and maybe counsel for  can and like that's what i'd be very surprised if there's any such animal anywhere in america a one year statute of repose and that's your honor that's one reason why we say in the briefing it's a dangerous thing sometimes to import foreign laws and then apply american thinking to them because it's a different animal and there's no suggestion anywhere in the record that  recognizes a distinction between repose and limitations i think and i teach he's briefing to the ninth circuit the reasonableness factor of the one year was pegged to the statute of limitations and there wasn't any argument that the one year would be reasonable as to a statute of those is there is or anywhere else in the briefing that we're going to find the type of time limits that are generally seen in u s statutes of repose i don't believe so there are but the i guess the the main point is that  again the under rule twenty three it seems that what we're talking about is whether we insist that everybody file their own separate actions or whether for a period where class or cation is being reviewed as to whether it is valid during that time period shouldn't there be towing while that's all under consideration and i think it's important to go back to the are the beginning of our discussion that no time to judge when our say something like no your or your motion is deficient because there's something wrong with your class representative for instance although we've pointed out in the briefing cases where even then towing continues when they substitute alternative class representative we don't even have that situation here we simply had the situation where the judge asked us for more legal analysis more law and nothing changed in the make up of the class the class representative or the other criteria under rule twenty three and so to us we believe there was tolling and maybe this goes back that just makes a whole lot worse sense to us in class action practice on the question of waiver i just want to touch on one point i don't think it's sufficient when you're relying on a statue of repose to say in your answer well you have a failure to state a claim otherwise  defense you have and so it it's really a question of notice i don't see how we were put on notice that i teach he was going to rely on an alleged statue  repose simply when they say as an affirmative defense that you failed strategically so i do think judge who now ours on to something and that we in the class had no notice until the first appeal to this court i think i just have three very quick points your honour's first of all it's armstrong versus martin marianna where the court basically said it annihilates a denial whether it's later reversed whether it's later reinstated it's it's a denial and it's really unworkable to have it say a denial is not a really a denial you have to sort of parse it and figure out whether it really is a denial to a denial is always without prejudice in effect in classification cases because the court can always revisit it so there's no magic words here whether the judge said without prejudice or not that that in effect was was without prejudice but that doesn't mean that there wasn't the effect the starting the clock running again with the denial that's the critical point and the third point is plaintiffs chose kuwaiti law they put in the in this the whole labor code when they filed their first classification motion we filed that kuwaiti a declaration from a quite a lawyer pointing out the one year time bar in response to the first class certification motion and they've been on notice we pointed out statue limitations in our answer we pointed out but what is your response to the notion that brief but they have been on notice from the very beginning that we were relying on the quit when your time bar however it is characterized by a court it doesn't say on its face whether it is statute limitations or statute of repose i believe it's a legal determination is what it is a quick  or that what we counted was the time we gave them the benefit of the time between the first class or vacation order until the ninth circuit reversed it so we