may please the court said frank for appellant frank bednarz this case is a simple application of supreme court and th circuit precedent and whether it's decided under a four or b three or two what you simply cannot have is a single settlement class where there are substantial material differences in state law between the recut that  dramatically affect the recovery's of class members yet all class members are treated the same in a single settlement class a litigation class certification a sudden classification and the case and there's no other opportunity to correct any problems with the certification in a litigation if the court notices that there are issues it can modify the class ification but at the settlement stage it's important to get it right because there's only that one opportunity and the court to not apply that undiluted or heightened scrutiny it if anything did the exact opposite because it had already decided the class certification issues and had already decided that it could not certify a fifty state class precisely because of the differences in between re states and not regular states under illinois brick that presents a fundamental problem under b three under this court's precedents in monza under mexico money and litigation  it presents a fundamental problem under a four because it means there's this irreconcilable conflict between the interest between the class members from pillar states and non repeal or states and it's not just a hypothetical  conflict but one that diluted the recovery of millions of class members by fifteen dollars to twenty million dollars and that is a problem brief below before she decided it just seems like a very just seems very odd to more or less the same case that was different defendants is that right it's exactly the same case just with different defendants plaintiffs give a timeline but we've also have a timeline and just four in five of our reply brief showing that the illinois break issue was firmly in front of the district court  the district court here didn't exactly reach the choice of law if you but signaled her views on it would that be fair to say that might be the best way to phrase it followed sullivan and trans pacific despite because we already had this appeal pending and we decided we'd rather take the low hanging fruit and we were nonprofit with limited resources and we just we have to pick and choose our cases and we signal to the court that we thought it was objectionable but we we weren't going to object but it's demonstrate the problem with the earlier settlement approval so if hypothetically if the court were to come parties would have to negotiate and works out how to negotiate it but it would get subject to court approval that's correct but if they're not for the questions i'd like to reserve the rest of my time for reb thank you very much good morning your honour's may please the court elizabeth curb raiser for the plaintiff class at bally's and cam and all of this court's precedent including the most recent hyundai and bonk fully support and of the challenge to settlements all of our cases all of this court's cases class plaintiffs churchill bluetooth hand one hyundai  already cite the same factors for review of the fairness adequacy and reasonable list of class settlements and embedded in those factors is that the court consider the stage of the proceedings antitrust cases typically proceed in phases most of them involve multiple defendants defendants settle at different stages of the proceedings over time and the litigation landscape changes accordingly settlement amounts in differing percentages of recovery can all be fair adequate and reasonable and different applications of those amounts among the class members can all be fair adequate and reasonable if they are assessed against the litigation landscape at the time because the very purpose of settlement and the reason this court has repeated a strong judicial policy in favor of settlements is that it reduces risk to certainty and the class was entitle to reduce its risks to certainty at the time these deals were struck and at the time these deals were struck all of the class members were at a high watermark there was no conflict there was no divergence between repeal or and non repeal or states because the class certification motion which had been briefed but not decided when these settlements were signed and when they were granted problem unary approval sought nationwide certification for march th april th was your denial classification that's that is correct but this also seems to be just a little bit different i realize that you're that you're trying to reduce risk this also seems like an obvious error but you've got that you've got a full settlement for people who live in states that haven't revealed the illinois brick rule i just seems like just a plain legal error your honor it is not a plain legal error in fact it was the district court's initial view after the settlements were reached an approved which would it which it was able to revisit on final approval this the district court knew what it had decided it knew why it had decided it and it knew what impact in its view it had on the future course of the claims but instead of doing what might well have been the wrong thing and reducing the pro rata distribution to some other the court looked at the settlement as of the stage of the proceedings at which it was reached when they all had a claim under the cart right act it had not yet been certified it had not been denied and in fact as the court knew there was never a dismissal of the repeal or state's claims ever in this litigation there was never summary judgment granted for those claims ever in this lit individuals from nine repeal are states really didn't have a claim then you have final approval briefing and various objections and then i look at court's order which is about conclusory as i've seen in a class action of this nature the court acknowledges the objection about the state law issue and then says in one sentence the court finds a settlement and the adequate despite these differences with no analysis so that that actually is something that would give us pause even if we didn't have the illinois bridge issues why should we uphold that given the conclusory nature without analysis your honor with respect to this court and with respect to the district court judge gonzales rogers as hanlon holds brevity  error the record here is plain the the final the preliminary and the final approval hearing transcripts demonstrate complete engagement by the court arguments by objector arguments by proponents discussion of the illinois brick discussion of the case and discussion of all the court approval factors the district court knew because the record reflected that the illinois brick issue wasn't dead it was preserved for appeal it still would be preserved but for all of these settlements and it could well have gone the other way there was over five hundred dollars pages of briefing before the district court on all the issues relating to illinois that's why it's a little bit of a mystery i don't i think she was incredibly gauge i think the parties had the issues there but in light of her earlier rulings with respect  and no explanation we're kind of less left at a loss as the basis for the fairness that's all and i agree brevity brevity can be great when it's also explanatory your honor i don't think it's a mystery i think if the very lengthy record in this case were to be examined and i mean the entire record twenty two hearings i think at least ten hearings by that point in time extensive discovery extensive fact development about the extent of the conduct of the defendants several of them were headquartered in california this was not a clear cut issue it could well have been reversed on appeal it still can particularly after the on bank in one day if we were going to keep reevaluating settlements as the litigation landscape changed you'd see something like the stock market where the stock rises and falls for say the non repeal workers but we stop the clock when we settle the case and we reduce risk to certainty and we do that on what the litigation landscape looked like for all the clas members at the time and what it looked like for all the class members when the deals were reached were that everyone had a shot at class certification there was going to be a nationwide class the defendants were very concerned about that they needed a nationwide release they had to pay for that release they had to give consideration to everyone in the class and prorated distribution was presumptively fair under that holistic view and we review settlements holistic fighting i disagree your honor and i disagree for this reason st of all this wasn't about entitlement to relief the class certification decision as judge rogers herself corrected i'm allow appellants counsel law in the class of people to receive compensation for an injury the supreme court has told us doesn't exist this was not a matter of constitutional standing your honor it wasn't a matter of entitlement to relief it was a matter of statutory dispute under illinois barack and i without getting into the weeds on illinois brick i would simply remind the court that while the choice seems a binary or you would repeal or state or non repeal or state those boundaries shift and during the course of this litigation the status of particular states as repeal or or  non repeal or did shift oregon became repeal or state everyone always argues about puerto rico everyone always argues about montana illinois where appellant bought the but the devices has been accused of being a non repeal or state so different judges different courts at different times group these cases differently so you would have a strong wind at late two d there's a very interesting analogous th circuit case called sin corps arista litigation it's cited in hyundai and bonk the site i believe it is  and sixteen f rd one thousand and ninety five it's from two thousand and eight and in that case what happened was the parties reached a deal they asked the court not to enter summary judgment not class or something on the merits dispositive summary judgment the court apparently had already written the summary judgment order and so the court entered the order and the defendant said sorry no settlement the th circuit side of the very strong policy in favor of settlements incent core it cited all the factors i resized today including looking at the case at the time of the settlement and said no we're going ahead with the settlement you can't get out of it because something changed neither could the defendants get out of this this group of settlements on appeal because they thought things had changed with class certification that wouldn't have been allowed at the point the geo was reached and at the point of pr approval the non repeal or people and again those injury shift just like the repeal or people had reduced their risk to certainty they had a pro rated distribution of those settlements which they're entitled keep i would also say this this is not within any corners of am kim because here there isn't a futures class everyone was affected by the same conduct when they bought the same products at the same time frame no futures class no different claims no different injuries but for the accident that some court after the fact might decide whether or not council like to go back to something that uses these as the boundaries were changing that is that the states that the definition of or the list that they didn't share are yes your honor appears to move but it doesn't look like we really had problems in the most recent settlement figuring out those boundaries are the are the boundaries different between the two so we look at the boundaries for that's for the same the the same principle that i indicated we look at the boundaries as they exist at the time of the nd batch of settlements or the last batch of settlements i think is the question i want to ask time of the most recent s in court this settlement at the time it was settled in two thousand and seventeen have been different yes i believe it may have been different with respect to montana puerto rico and it would have been for oregon i believe except that there is a case that has decided that oregon's status is retroactive it would be easy enough to figure out montana puerto rico and oregon right and of course as i forgot to mention florida which is a very large and populous state also has its repeal or status disputed what i'm what i'm suggesting your honour's is that it had this case going to trial the defendants were always free to challenge the repeal or state status of any any any point if but because we settle he equal settlement seems to not take any of that into account your honor the equal settlement takes these factors into account in accord with th circuit precedent the risks of maintaining class certification throughout the case that risk was equal for everyone at the time the status of the litigation that status was equal for everyone at the time it was a coin flip and the coin had not yet been flipped there but this is about allocation within a class not whether there's that little point the coin flip your honor was whether or not all of the class members regardless of state purchase or residence would proceed under california's current right after on the choice of law as it turned out with the class certification decision ruled as a threshold matter and the district court corrected appellant on this was not the choice of law issue but issue that also affected everyone equally in the class regardless of repeal or or non repeal or state and that was the failure at the outset to prove antitrust impact fact of injury that's why the class certification denial was without prejudice so we really have your argument in mind and we've given you quite a bit more additional time here representatives were from repeal or states they always had the interests of repeal or states plaintiffs as well as non repeal years in mind they did what was best for everyone to maximize both the overall value of the case and the leverage of all play tips both repeal were and non repeal are by striking the settlements at the high watermark of all class members uniform claims and interests before those diverge the last batch of settlement settlements occurred after divergence these settlements occurred before divergence the risk of in adequacy would have been had these repeal or class representatives thrown the non repeal or state class members under the bus by assuming to predict what the court would do on class certification and prior rulings by the end of the day in this case during the nd batch of thank you your honor if we're going to talk about when the positions does verged we can look at the very st rule twenty three g hearing and that's docket one hundred and forty eight at page eighty one where ms gray's are seeking class counsel lead class counsel status as we have twenty seven repeal are states who represent here everybody knew at the time from the beginning of the case because virtually every single indirect purchaser case is settled this way that there are repeal or states in their non repeal or states in the non repeal or states don't have a cause of action and have no recovery and when you're talking about coin flips in the risks that the parties are facing yes repeal or states are facing a coin flip risk of whether they will recover or they won't recover but non repeal or states are facing two point flips a coin flip whether they will recover or not recover under the facts of the case but they're also facing the hail mary of whether they can get a ruling that california gets to dictate national interest law and that's a substantially greater risk than the plaintiffs in repeal or states are facing and so if you're going to look at the strength of the  know i think it's thirty in the most recent settlements so there has been some shift in the west we were to send this back and presumably the just the court would be free to make some adjustments there to account for change circumstances between twenty million seventy two thousand nineteen i mean there would have to be a new settlement in the new settlement would take in account those changed circumstances i would have to you know that a lot of what amount attorney says well i mean the classification was improper and the settlement approval was improper and this settlement can't stand because it it always treats them as a single class with equal recovery when when the if we were to take the end of two that's correct and just to clarify the record bednarz isn't just from illinois he also made a purchase in massachusetts where there isn't a dispute that's a regular state the district court's finding it isn't just a finding of it's a non sequitur error of law the court says i find predominance here even though there are differences in individual law that would preclude recovery for some class members and that's like saying i find the defendant is guilty of murder even though he didn't have the requisite intent that's required if you have individual differences in state law that preclude recovery under mazza that precludes predominan and that's there precisely to protect absent class members like the repeal or states and mr brazier talks about the problem of throwing class members under the bus and that's exactly why we have a four requirements of separate representation that's recognized in am can in or t s and am can is not just about future and present but it's against all of these sorts of intractable conflicts and which is why the arista presiden mentioned doesn't apply here because if there were separate representation and the repeal of classed as subclass had had a settlement in the non repeal or class had a settlement and whatever those numbers were and then there was a ruling on the classification or on the illinois brick issue yes then the defendants couldn't get out of it but the problem is is that there wasn't that separate presentation that a four requires and that's why we have this conglomerated single settlement class that adversely affects the rights and means that somebody is getting thrown under the bus here it's the repeal or state class members hyundai is not inconsistent with what we're asking for here a you recall in huns i did not overrule mazza it just simply found that the objectors did not meet their burden of proving that there were material differences in state law but there no dispute here that bednarz raised those material differences and the court acknowledged that bednarz raised those material differences he cited them in his objection he raised in fact the court's own ruling it to seventy four to seventy eight that there were material differences that precluded a finding a predominan and the court certified the class anyway i'm happy to answer any other questions the court has but i'm on my feeling i'm still curious as to why if we thought this had to go back why that would have to be renegotiated other than just the allocation of a settlement already negotiated well the settlements cannot be approved so it has to be a different settlement to the settlement approval has to be vacated and it ceases to exist now the parties can and can just say ok here's the same settlements and ask the judge to do it i mean i guess you could remain on for a new hearing on whether it is but there is under there no circumstances where the settlement could be approved under the law all right thank you thank you like to thank both council for your argument today as well as the very helpful briefing and twenty a j letters case of indirect purchasers versus panasonic and bender as submit