our second case for this morning is fulton gentle against  represented it was not mentioned in the complaint but in our response to the will six sixty seven motion to deposit funds we did mention the incentive payment in our intention to seek one as one of the reasons is in this case and to go to that about the incentive i work that goes to our interest in that class action even if fulton dental individual claim were moot which reasons i'll discuss it is not but regardless of whether it was mentioned in the complaint we have an interest in seeking an incentive award if class classification is granted and that gives both and dental an economic stake classification that even if the individual claim were moved would be sufficient to maintain article three jurisdiction over classwork occasion decision and this court has already held that an incentive award is sufficient to pleadings so i think that suggests the pleadings are not dispositive i think if you have two fundamental points and you can tell me if this is wrong one of your fundamental points as i understand your briefs is that a rule sixty seven deposit is not the equivalent of what the court refers to in campbell wall as a deposit of the full amount of the plaintiff's individual claim in an account payable to the plaintiff so that those are the critical words so that's point one point two is i understand you to be asking this court to change what has been our rule that you need to file a motion for complaint ask for class certification so and some courts say you don't have to and we've had you know other cases in between but i may you could address both of those what exactly do you see the rule sixty seven deposited as being and why doesn't it comply with what the court talks about and campbell you walt and then also what should we make of are you really just asking as you change your law on the timing of the closer for cation motion those arguments there are alternative arguments so under either one the case proceeds to class certification in terms of the role sixty seven deposit will sixty seven is a way of safeguarding funds sixty seven unless the court actually orders that the money be released and on its own account that might after the amendment to rule sixty seven just wind up getting returned to the pay your exactly  goes specifically stated that it might seek return of the funds of some of the funds at the end of the case making clear that even if it did not think that the deposit of the funds intitled  fulton to claim full to dental to claim all of the funds and just taking a step back from even that language and campbell it well that was something that the court was not deciding that issue and campbell it walt and what it you know i'm just looking at the dissenter dissents and i'll talk about that with your opponent but the majority opinion at page six seventy two has carved out you know we're not deciding right now what the result would be if the money goes into an account payable to the plaintiff and so the quote one of the questions before us is whether this case falls within the carve out or whether this case doesn't even get there i think this case doesn't even get there because the rule sixty seven deposit is not an account payable to the plane dep it's just a way of holding those funds while in the case proceeds and even if the court so you could go to a bank downtown and open up an escrow account and it would be the same thing in the escrow agent doesn't pay anything out until an instruction comes right here the instruction has to come from the court the court has to order relief which on its own demonstrates that the court is still able to grant a factual re which is the standard for whether or not a case is moot and here the court did go on to grant relief it entered orders granting relief in entered a judgment thereby conclusively demonstrating that the deposit did not move the case  individual claims until that plaintiff has had you know a reasonable opportunity to see class certification how should we decide what is a reasonable opportunity but i think at the very least there would have to be the time to go to engage in discovery on rule twenty three as requirements and then a reasonable time after that she would prepare a motion for  discovery and for filing a class or petition motions here at the time when when this go filed its motion the court hadn't even got into entering a schedule filed this motion only two weeks after filing its complaint and there was a status hearing already set for the next day in the parties had been required to file a status report where they addressed other things on the discovery plan so the status hearing was presumably in part going to address a discovery plan and set forth their schedule for discovery and motions but instead at the status hearing the day after disco filed its motion the court stated all discovery intil it ruled on discos motion and then that ruling was to both dismiss the case as moot and then also enter judgment on the claim that it had just dismissed as i presume a plan the next day but instead they stay discovery at that status hearing and that's how class litigation tends to function is that there is a schedule for these things going on and it does tend to take you know at least some number of months to do as the district court recognized below plaintiffs generally can't file their class or for cation motions as soon as they file their complaint because there does need to be discovery on the requirements of roll twenty three so the two things have spoken to th the amendments to rule twenty three some years back and also the supreme court's walmart decision once upon a time rule twenty three used to call for class certification at the earliest practicable time and  drafters of the rules decided that that was too too soon basically so it now reads at an early practicable time the court most determine and so on and wal mart case specifically recognizes that there's a duty on somebody seeking to certify a class to present facts in support of that and thus that some discovery is necessary so it puts t me puts all of us in a difficult position for sure to say how long is the right amount of time that there's clearly some play in the joints so there is some time it should be early in the case but there is as you say some play in the joints there should be some time back plaintiffs to gather the information necessary to make the showing necessary under under wal mart and so that require will time to conduct discovery and then also time to prepare a motion based on discovery and sometimes you'll need your d'albert witnesses both located in and qualified under those procedures as well right i don't know if it's this case but the that often comes up and district courts handle these sorts of situations on a regular basis and just set schedules for filing motions and adjusts and schedules as the time is you know as becomes necessary in that case so i think you know in particular cases that i think will often be clear when district court had an interesting discussion of this in recognizing that it was required to follow our rule that said the safest way to protect yourself is to file the class certification motion along with the complaint with the just report says you know what a variety of other circuits don't require that in it's unfortunate that it requires the filing of essentially an unsupported motion but i still think we might need to consider whether we need to modify our rule in light of in light  these developments at the supreme court and wal mart and the general front loading of discovery that's happened in class actions i agree and that rule has been set forth that in cases that were judgment does not render a class action suit so they made clear that the concepts of article three jurisdiction on which those cases such as the masculine holstein were basic they were based on an overly narrow concept of article three jurisdiction that in fact there can be jurisdiction over a broader range of cases than those court then those decisions recognized i'm unless you have further questions i'd like reserve the rest of my time for a bottom that would be fine thank you courts account under rule sixty seven they don't automatically there's no automatic a vision for what happens to that money however in this case the court actually entered an order and said the court shall pay this money to fulton dental well see here's here's my action of a bunch of issues that are bound up in that for you first of all paying it into the account itself is not the same as paying into account payable to the plate is because you're grieving there needs to be a further court order if paying it into the account under rule sixty seven moots the case then the court has no authority to issue any further orders not an order saying pay it to fulton general or give it biscoe and it certainly would not have any authority to enter an injunction so i think you're off on the wrong track to be thinking about this as a lutenist issue any more than if you get a jury verdict saying the plaintiff shall receive one hundred thousand dollars it doesn't mean the plaintiff's claim is moot it means that the plaintiff won and so a hundred thousand dollars will exchanged hands so i think you need to think of it more in a in a payment in satisfaction mode then than a moo mode secondly your brief relies very heavily on the dissenting opinions and campbell you wald and i have a problem with that because our court is not empowered to adopt a supreme court dissent as the rule of law i think you either fit within the carve out in the majority opinion and it wasn't you know a plurality of full majority opinion of the court or you don't and if you do then we need to see what this rule sixty seven deposit actually was whether that's actually an end run around the majority rule adopted by campbell one of my concerns is if your gambit works then the supreme court might as well erase campbell it will be from the books there won't be any campbell left and i'm a little queasy about doing that but yes you honor with regard to the campbell you will decision you're right that the majority opinion did leave this question unanswered for a case in which it's not a hypothetical and they very specifically say deposits the full amount of the plaintiff's individual claim in an account payable to the plaintive and i have trouble seeing the sixty seven process being that they're on he needs to be a later that question and with all due respect i believe that you know once that the funds are deposited into the court and then the court orders that money to the point of then the point of has made a hole and that's well but that but you're going down a number of steps years you're set it's as if you're saying the court can force the plaintiffs to accept the offer of settlement like the payment into the account is the offer in the court's order is the forced acceptance and i see that is fundamentally inconsistent with the holding of campbell he wald i respectfully disagree i believe the camel he will left that question open rights that's been in the rules enabling act since the beginning of time correct and it's not the just the deposit though it's the fact that the judge actually entered a judgment awarding the money over to the point of here and the basis of the judge was that was the judge authorized to do that the plaintiffs didn't want that order the plaintiffs said we don't accept this it's missing for example the incentive payment the judge rosemary referred to maybe you should have given them their filing payment maybe you'd rather have a system in which four thousand cases get filed against you on the same day and you have to buy them all off at the maximum amount where your honor we actually did i give them their costs so the costs were built on the filing that the case so that was part of the award that the judge  claims generally require development through discovery what i'm having trouble with is how place holder motions can have any utility at all  require that we're placing it seems to me the plaintiffs in an impossible position of one i think are risking moving up the class claim by four going the motion or five in the motion despite no develop a sense either in fact turn law as is required by rule laughing so that's i mean that that's my bottom line problem here yeah your honor i think that there are a couple responses one is that it has always been the rule in the circuit and the circuit has expressly rejected real prior attempts to abandon the rule that the plaintiff must file a motion for class certification to avoid having his claims mooted that's a pretty recent line of cases though i mean you say always the was moot so that was not an issue but then it went on to find that the respondent who haven't moved for conditional certification lost her individual claims as a result of the moving of of her individual points all has a whole section where they're talking about genesis if an intervening circumstance deprives the plaintiff of a personal stake but that's what the what the holding of campbell is that that intervening circumstance can't be the defendant trying to pick them off if they don't want to be picked off they don't want that payment you get to say no to a tender think of all the discussion of tenders that occurs in these opinions we're out or i respectfully disagree with that found in that case a lol that that who did the claim the supreme court said no that's not true you need to actually couple that offer with actual payment and in this case we have that we made the offer but then we deposited the funds with the know i think you're way over reading campbell the world because what the court says among other things is you know none of these decisions the ones that campbell was citing suggested in an accepted settlement offer  dissent in genesis health care to the extent that it holds that on accepted offer of settlement is insufficient to make the claim and that is exactly what we have here the folks in dental couldn't have been more clear that they were not accepting the only it's one thing to accept something i suppose we can all agree with this i hope and it's another thing to have a judge force it on you that's not acceptance that's a judge ruling it's the dip it's different but the point  they came to this court to ask for a specific sum of money we've given and then ask to be certified as a class representative you can't make this not a class action by wishing right but that they didn't file a motion for class certification which under the circuits precedents are requires them to file an appeal or they could file at those long as their case wasn't rendered moot and so i say this i think requires more than simply  it could get rid of the case by ordering them some money may have made a mistake i respectfully disagree or no course i did also want to know that there are wendell off case were do you think that time sequences find all sixty seven deposit then a motion for class certification well that with with lots of what say back case house and see if you think it's ok to file the class certification motion after the rule sixty seven deposit possibly yes ok but that didn't happen in this case right one and twenty forty two and twenty forty two then it says that any no withdrawal of money shall be except by order of the court so it makes clear that money can only be withdrawn if the court orders it and that an order of the court is necessary for floor to to show that classification is warranted really does answer this case and show that fulton dental needed to have that fair opportunity with regard to whether fulton dental had a live claim i think it's important to look at each specific point in this case so at the time so biscoe made its deposit and that deposit did not entitle coltan dental to any relief and most importantly can i just nail one thing down the costs that it offered as i recall or five hundred ninety five dollars and i take it there is no dispute at least as to the question whether that was a full measure of costs there has not been a dispute but i did not offer incentive award i think most then proceeded to grant relief the claim was live so at that point when its claim was unquestionably live the court should not have done anything to resolve or move or end the case without first providing fulton dental with that  opportunity to show that a class should be certified which would require at the time to engage in discovery and prepare a classification of motion that that shows that that meets the requirements of showing that class i think would be a meaningless act and that just a quick below pointed out that it's you know in other circumstances filing an ad like that could be conserved frivolous and open one up to rule eleven sanctions that we don't generally require meaningless individual claims and in the class claims and also the class members before or after the filing of a motion for class certification have the same interests in the case and while their claims are preserved for limitations purposes under american pipe anyway ye motion to deposit funds on january twenty fifth ok i'm and before the status conference the parties had submitted a joint status report setting forth each of their respective ideas of what the discovery schedule should be going forward so the judge was