counsel before we here are day calendar we have a number of motions so calendared for today but only one of which is scheduled for argument scott's miracle gro versus our glory if we could hear from counsel on that but will allow you to take one minute thank you judge your honour's the court should grant interlocutory review here because the issue presented is important to numerous cases it satisfies the elements of twelve ninety two b and is very likely to continue to evade traditional post judgment review the district court held below the statutory damages aren't available remedy in a federal court class action brought under section three forty nine three fifty of the g however the court erred in three important ways the court heard and phrasing the threshold question as whether those statutes on their face prohibit recovery of statutory damages in a class action the court erred in finding that it was constrained by shady grove to conclude that such damages are available in federal court and the court heard in applying the second step of the theory shady grove analysis insofar as it found damages available because the state legislature as the court said relied on c p l are nine on one b to make them unavailable the district court properly found this issue satisfies the elements of twelve ninety two b the court should take this appeal now for several reasons it presents the court with a fully ripe and pure question of law as the district court found with respect to this particular case resolution will substantially affect the methods of proof and the amount of damages but beyond this case this issue has significant presidential value it's an issue that is recurring not just with respect to three forty nine and three fifty with respect to general the application of shady grove if it continues to evade review the reason for that is the hydraulic pressure that are implicated by the availability of statutory damages in a class action there's no benefit to waiting for a more traditional post judgment review and there  considerable downside parties will continue to deal with those kind of pressures and the result is of course recognized has been to lead to parties entering into settlements that are unmoored to potential actual liability and risk courts within the circuit lack clarity and have struggled candidly with the scope and application of shady gro or right after class certification and as it's become known as we've said there are and as as not as we have said but other data and research have shown the federal courts have become a magnet for these kind of cases and so this issue hasn't had a chance to rise up it's in that sense this is mean that the fact that the issue is generally resolved in by other means in the court doesn't mean that we should be looking for  recent take it well what's your other argument for why we should you this says a matter that needs to be addressed interlocutor early well the issues the generally the circuit has not as number of other court observed judged or office most recently in the delgado case a case that just came out about sixty days less than sixty days ago fewer than sixty days ago the circuit has not had an opportunity to opine on the proper application of shady and shady grove really has been dramatically misconstrued shaded and that is not enough of a recent i mean there are a whole host of legal issues we've never had an up opportunity to address we don't go looking for it what what is it about your case that warr c hearing this now i think it is as the court has taken other cases have to see is another example of these these kind of hydraulic pressure is related to settlement the importance of the issue the pervasiveness of the issue and the fact that those circumstances have led demonstrably to parties entering into settlements that are completely unmoored to any reasonable risk or any actual properly morning your honor may please accord i'm scott bursar for the respondent michael r curie i'd like to began by answering judge livingston's question is is there a split in the district courts on this question the answer of course is there is not  we cited in our opposition five cases five district court cases from the southern district of new york and other district courts within the second circuit and all five have have answered this exact question in exactly the same way which is all five have found that post shady grove statutory damages are and available ram ity and class actions under new york's three forty nine and three fifty and the reason of course is because as the supreme court explained in shady grove federal rule of civil procedure twenty three pre amps section nine zero one of the c which which would otherwise restrictive ale ability of that remedy the other reason i think which is was clear even before shady grove is that under rule twenty three classification can  either and large nor a bridge the substantive rights of the litigants and so if a remedy is available to an individual litigant in an individual lawsuit that same remedy under rule twenty three and under the rules rules enabling act must be available in a class action that is why the district courts have not struggled with this question the district courts have uniformly answered this question correctly and the same way and i'll point out that that does realities this kind of  harris in two thousand and fifteen and in gold versus new york life in two thousand and thirteen and we cite both of those cases in our papers now to be fair this court wasn't squarely presented with the  you know the issue the way that the scotts company was trying to teach up on this appeal but in both of those cases this court and the litigants acknowledged what is self evident under shady gro e and under the very text of the of the g p l which is that the g p l provides for a statutory remedy and post shady grove that remedy is available in a class action suit so i do not think that it is an issue that has evaded appellate review and i also don't think it's an issue likely to evade appellate review i think the reality is that very few class actions are litigated to judgment period whether they involve statutory damages or not and so there are very few posts there are very few class action judgments that come to this quarter to any court of appeal  well i don't think that's true your honor because in many of the cases class sort of cation is denied and that's why your honour's never see it or in many of the cases the plaintiffs lose so hydraulic pressure or not  think these cases just ordinarily don't get litigated to judgment because they're so they are so difficult courts have crystal clear guidance on what the rule is here and that's why every district court to address the issue has gone the same way and so when you look at that under under the factors of twelve ninety two one thing that the court would have to find to take this is that there is a substantial ground for a difference of opinion on on how the issue should be resolved and that finding cannot be made here when five times out of five the district courts have gone the same way and two times out of two this court has has acknowledged and ruled that that those rulings are correct one other element under twelve ninety two that's missing here is that the the issue is not a controlling one in this case because it will not resolve the case it will not narrow the case it will not materially advance the ability to resolve the case on a shorter timeframe this case was was set for a final pretrial conference in september interlocked her appeal no matter what ruling this court made the case would still have to proceed to trial on the same evidence so there's it's not a controlling question it will not materially advance the case and there is no substantial ground for difference of opinion and for it will continue to escape and evade review sikes as the district court found sykes and cold did not address this issue this circuit has not had an opportunity to grapple with this issue with this issue of the application of shady grove with respect to statutory damages this isn't just a very isolated issue we're talking about the general business law of new york a statute that has become very attractive and has led to a number of has become a statute that plainest firms are continuing to invest and you wonder candidly in this court plaintiffs themselves have brought fourteen cases that we've cited to with respect to this issue every judge who's dealt with it judge wein he knows it's wrong they're vexed by this issue they know it's the wrong result the reasons for that are set forth in this petition this is an opportunity to address this issue for continues to go on and continues to  as quickly as we will turn to the date calendar the first case being argued is garner versus lee if i may good morning your honors my name is michael j miller i appear on behalf of the opponent in this matter the respondent in the court below that's really just a fancy way of saying we lost and we're appealing i would like to start out by focusing on the issue of whether or not the district court erred in as now assess of petitioners ineffective assistance of counsel cla m the structure of the district court's decision shows that it used twenty two fifty four day as a gatekeeper similar to a claim of say actual innocence and i'll get to this again opinion and then went on to determine whether or not after its own hearing the constitution had been violated and this is all of course on strickland ineffective assistance of counsel there's no question here about what the is that we're talking about so after it went through this analysis first of women adding the use of twenty to fifty four d and then going to twenty two fifty four a and using in the federalism issue not the effectiveness of mr lemke we believe he was in fact an effective attorney for his client but the other issues are more important to other cases other than this particular one first the district court decision is wrong because it conflated one reasonableness under strickland with one reason was application under twenty two fifty four d one analysis one is whether or not twenty two fifty four d was correctly applied and whether it gave correct deference to the state court decision and we believe that the court got that wrong for two reasons one is it conflated the holding of the strickland standard with the twenty four to fifty four twenty two fifty four d one standard in other words unreasonable under or ineffectiveness under strickland doesn't per know there are very many different reasons for that among them being that we didn't meaning the prosecution didn't have those records either and it's not the time the cross examine your client right but at that point we did not have any opportunity to do and in two thousand and three or four or whatever forensic analysis we could have done with those records but we need the question you're being asked is how is it objective reasonable for a lawyer to put his client on the stand without procuring those records particularly in a case where the client asked that the lawyer procure the record take that out of it if you want but we're still trying to understand you to to satisfy strict you have to show that the court was wrong in assessing both object of reasonable and prejudice how do you justify the action yet not that i think you have no answers they put if i understood it again we may be from the hearing yes the mother to get them in we have a whole lot of facts here but what is your answer it was objectively we didn't have time to go through those records and assess them get cell tower information if we could where when that phone might have been we also know from hearing since it was brought up that he was told that he had three different phones that he was carrying burner phones because he was a drug dealer he had a nextel that worked as a walkie talkie and he was originally told according to the hearing of course that his wife had a phone be that as it may he also knew when he had those records there was a lot of korans on and the argument he ultimately made with him although it was his client was a little bit flummoxed about the times was that the last outgoing call home was at ten thirty one and the shooting occurred approximately at ten forty so his argument in some asian was he was home who probably called his wife this was the argument he made before the jury that i'm running a little late i'm on my way home but we know that he made no home in coming close to his home after ten thirty one so his argument to the jury was he didn't do that there were many outgoing calls because he was in fact home so those records show a lot of things what it doesn't show is who had the foam where they were they had the  phone and it does not actually establish how and why because we don't know who had the phone it would have possibly done him great harm if we had time to take those records and go through it and see if we could obtain any of the cell site information obviously sixteen years after the event we don't think that that would happen at all although of course now mr olympia has testified and at this point here is there is no attorney client privilege left and in he had burner phones presumably because he was a drug dealer so everybody is fixated on these records but it really would not have helped them he presented a cogent argument that his client was home right but that but the fact all the nine one one call comes in at ten forty one do that based upon the record that we had yes but what we didn't have a deputy a killer time with any reason to go out and find the person who made nine one one call and ask them specifically they went outside they walked down the street did they discuss it with their wife did they have to put out pants before they want to outside so we don't know precisely what activity you know as a matter of making strategic decisions both on the prosecutor's side and on the defense side doesn't have to be informed by by facts so don't you need to see the cell phone records before making that we want to pend upon the discussions that mr garner had with his attorney all right thank you cancel i know you want to research time  addressing the question that george look here said there was on that tape there was also a reference to a second it was a second nine eleven call and mr lemke had that it wasn't played for the jury the tape indicated it came on the tape itself it indicated that it came in at ten forty six that caller said that the shooting had occurred five or ten minutes before it was clear that to everybody that that shooting had occurred at ten forty one or some time shortly before that what mr lemke concern about that as i understand it piques act times are not in the record the exact time being off even q were three minutes what the face of the tape and i read it to you and if anybody wants to see the photo copy the back of this is exhibit two but i didn't make a copy of that at the at the hearing that judge that the judge hill a through the records and that was through the mother wasn't that why wasn't that objectively reasonable i mean it was fat it would have been faster if they acted in a subpoena so how can we say that it was objectively an reasonable for your client for something that's within his means  subpoena power perhaps initially it would be object for his mother's phone records and i'm asking you why that wasn't why that wasn't at least objectively reasonable for counsel to say have your mother get her phone records initially it could have been objective reasonable but procure it by one means which could have been reasonable you are constitutionally obliged to use other means of just asking whether any court has dealt with that scenario i don't know your honor the decision that's cited  s supreme court cases that say that a mistaken belief that records are unavailable does not excuse a failure to obtain them when those records are in fact available and in this case it's i would analogize to those cases because when the records don't show up he's got to pursue it further those records are important as your honor said particularly when the defendant asked for particularly when they show they have the potential for showing what was happening at the time of the crime so they'll ask with respect to prejudice can we assume that if the records have been obtained the defendant wouldn't have taken the stand to testify that he was i don't know if well he would have been impeached and i'm just asking is because to the extent there's prejudice here there's prejudice but the fact that he was cross examined in a way that showed that he was not telling the truth if he had not taken the stand however what the jury would have been left with was the victim id the victim money in your client's car and the phone links between the defendant in the victim it's hardly seems to me likely that your client would have been acquitted without his story which then turned out not to be true you are these one more thing that would have been there which is the phone records themselves which showed what the defendant was doing continuously on the phone from ten forty one on up until so i'm not familiar with this understand that i think your honor did your honor and i also i mean that would put multiple bullets that would put multiple guns at the scene which in fact would would would raise another question as to who may have shot the question of how strong the evidence was and assessing prejudice the victim testified that your your client was the shooter the victim's testimony matches with the cousins account of how they ended up in this place together according to the victim's story your client story is diametrically opposed to the victim and the cousin in your client's caryn's up with the money in the glove compartment if i'm remembering correctly that's a pretty that's a pretty strong case i agree that it's a strong case but it's refuted because the nine one one calls judge reggie has indicated that there could be some potential difference of two or three minutes here the  one one calls make it quite clear you have a guy who just came out and cause a ten forty one he some of these he said heard just heard a loud bang and he comes out that's at ten forty one you have the other color which could have been brought to the jury saying at ten forty six it occurred five or ten minutes before it's ready and i'm just trying to make sure i understand the trial record accurately on that that evidence was not before the jury that tape that you  caller spoke within minutes after i made the call within minutes after the shooting which is the only indication from that the shooting must have occurred just certainly it would not be reasonable to assume that was more than ten minutes before ten forty one and that was the basis of what judge chen read found that you made a finding which was not challenge on this appeal that it occurred during that time period and and from that f whether he should have been making such fact findings well that is part of the challenge to how she approached the challenge to whether she applied richter and holster correctly but in terms of that particular finding the factual theory was that it occurred between ten o'clock and ten twenty five that's that is what me what the prosecutor are in that if the cell phone records in the nine one one call had been move you and so on by counsel it would have at least provided some reasonable probability that the jury would have been convinced that in fact the shooting had occurred sometime between ten thirty one in ten forty one zechariah yes and even closer than that tending towards closer to ten four and during that period between ten thirty one and ten forty one you're the client was continuously making calls a least three calls is also correct that's correct your honor and you know there was that theory was not made available to the jury because counsel did not review the cell phone records did not think about these did not do anything in rock and were still your honor the counsel argued of his own false alibi to the jury by saying that the crime occurred at ten fifty to around ten fifty two and that was demon made to look like he was given a deliberately false alibi and then mr lemke came and made a trip came up with his own clearly false alibi he just changed the time to an impossible one and argue that mr mr  detracted from some of the other what might be some of the other strength of it i mean it sounds like he doesn't want going to an officer speaking to each other perhaps going to could establish that he was with somebody and had been through for some period of time i mean  considered together with the nine one one evidence that wasn't before the state court so we can't look to that in assessing whether the the double deferential standard has that here right no it was before the state court it was raised in the four forty motion the state court didn't address it pretended that it didn't exist that same chart that appears in in in judge opinion was presented to the state court in the state court had access to the recordings it ignored them the recordings were said the recordings were at stake and the state k b s record yes absolutely they were in the state and that same argument as to the prejudicial the fact that there was  she says a minute now half into the first call the operator told the caller that the police were already on the way and gov received information to respond at ten forty four pm from that she could not have occurred prior to ten forty one pm of course that assumes that when the nine one one operator said that that the call had in fact been placed to other officers and that the officer who got the first call was governor not someone else this is my point about how even a minute or two off starts to change these things because the judge then goes on to say on the second nine one one call the caller indicated that the shooting happened five to ten minutes prior to her call credit rating that estimate and assuming the call occurred ten minutes before then the shooting could not have occurred any earlier than ten thirty one but if that caller was off by even a few minutes it would have been a difference because your client's first call is ten twenty eight pm as i understand it so three minutes earlier and it wouldn't have been unreasonable once he shot someone for him to be so stunned by that that he's on the one says one call to nine one one that's a second cool twenty to forty six hours so that's pretty exact and may be the judge chen that's part of the record and he's there and that's what the that's what the was on the tape itself it is true that there was no witness who at the trial said the nine one one call came in at twenty two forty one or twenty two or that there was another one twenty two forty six well judge chin from her other means says ten forty one but then there's the question of when does the shooting happen and callers is the only basis for that that it's five to ten minutes before her call but if it's any more than that  is that something which would indicate to you that you know that it's that it's more than ten minutes you know the point is there is what is important here is whether there's a reasonable probability not a certainty it doesn't have to be more likely t it certainly would have raised at least reasonable doubt in the jury's mind certainly it's an unusual case we have a witness who's who's testifying that i know this person and he shot me and he's saying that and saying that to a police officer shortly afterwards but you've got something which is inconsistent totally inconsistent with it and tends to show tends to show otherwise that he was on the phone at the time of the sky said he had never been on the phone for twenty five minutes before the opportunity to try mr garner they'll take a different tack but his cross examination the entire evidence against him was predicated on him having that phone before anybody and it's only a single foam a landline at home and there's a single phone which is  is and i think i think the language is used in this case meets the richter standard just like rivest did which cites richter which was a form surrounded by case just like henry v pool which i think preceded richter  but also needs it when you've got a false alibi according to henry v poole just the effect on that would be would be sufficient of that with somebody knowing that a lawyer knowingly presents a false alibi prejudice results just from that and in this case yes the prosecution's case absent of the effect of the phone records was a strong one but what you've got with those phone records is something which in my experience i think we all have our own experience obviously certainly one would it is fair to infer that there is a reasonable probability that the verdict would have been different because you've got something which is impossible based upon with client's argument at trial as to motive for the testimony offered by the victim against him to confusion resulting from the shooting itself yes with that to point to the phone records and say yeah he must have had a vision because the phone records show that my client was doing something completely different than he said just understanding how this trial took place but that that that  was there were some things about the cousin's testimony a couple of things about the cousin there were some inconsistency between the cousin and mr keith in terms of which parking lots they've gone to and how many i've actually made something of that in the state in the state court proceeding but i mean that is not at the heart of this claim they were impeachable and there was also further impeachment done about the fact that there was a third person there a guy by the your theory today my theory today just in all i think judge livingston was asking me about respects in which things were impeached and i wasn't entirely sure where judge lewis and was going with but i want to point out that there were things that tended to  and the other thing about mr merkel saying is that it is peculiar that the phone started ringing is to keys phone started ringing ringing ringing in the first nine one one caller said it and mr keith himself testified that he remembered it and it was mr garner was making those calls because mr garner was making other calls at the same time as his phone records show he was not so it was somebody else suddenly got when the something got wrong which suggests to me that maybe mr merkel some was around the markets and was around the corner was t you your honor few quick points defense counsel had asked through his client for the mother to get the records went there to court there was a discussion at the start of the proceedings at the trial level about the people up painting those records and what they were going to do with them his assessment of that point whether or not he was going to ask from in germany of course brings into play all his interactions with the court the judge in the that and at the trial level the prior conferences they had and of course partially based upon his assessment of what that judge was going to do at that point so it's very difficult to say that he could have simply gotten more time to then subpoena the records he may have been looking at a situation where he knew he was going to trial that day and trying to make the best of it as well as he could that's the first point second point is the question came up of what would have happened with those records if the defendant had not testified and there was an answer or what we put into evidence i don't know that that is correct in any way shape or form we used them to cross examine the defendant whether or not they would independently going to have an ins there would have to be even if trying to get here as close as i could to the state court trial record without gassing or impudently says you don't challenge that i don't challenge it because there was nothing in th state court record to challenge it in any event those records know what that means does that mean that therefore you accept chains characterization of the murderous happen happened between ten thirty  state court record at the trial level yes but the point of the matter in a court trial record supports that conclusion i think it supports the conclusion to the extent those with the arguments that were made essential and some action the prosecutor or argue that the shooting occurred at some time after actually after ten twenty eight the question was a block of twenty minutes were no calls made on that phone which coincided with the testimony of the victim that while they drove there were no phone calls it takes about twenty minutes to get to the location so it would have to have been sometime after ten twenty eight pm defense counsels argued well defendant last call home was at ten thirty one and if he he tried to move the time back a little for the ten fifty but the fact matter is the argument was essentially after that he was home so they both use those records but it was inconclusive precisely what the show the point i was trying to make is if the defendant did not testify those records probably would not have gone into evidence contrary to what councils and the third thing is for things mr tribalist testified who his cousin drove off with there were two meetings they met he met the defendant the defendant left presumably one home to change his clothes a different car than met him at the second parking lot and my cousin took a right he knew not where it's not at all surprising when he didn't return his daughter to call and see where he was it's also not at all surprising that she wasn't immediately wanting to police because the last thing he knew he was making a drug deal thank you judge livingston and i will hear the argument in this case to do i will soon not point guys on the street corner but by all people the log agrees so this is this is a serious matter it's not only a serious matter because i lost basis for the judge's ruling in dismissing your case were principles that as a lawyer i know you're familiar with of race card or collateral stoppel and the statute of limitations you want to take the minute you have please the court michelle mellow on behalf of the pelly merrill lynch pierce founder and smith incorporated the district court properly granted merrill lynch's motion to dismiss appellants first amended complaint based on race to kata collateral estoppel lack of subject matter jurisdiction statute of limitations and if the claims were not time barred they would be subject to dismissal for failure to state a claim upon which relief can be granted the district court also acted within its discretion and finding that appellant is a v litigant and by enjoining her from filing any new actions and the southern district of new york without attaching a copy of the district court's order to any future case initiating papers appellant filed this lawsuit in two thousand and fifteen following th a substantially similar lawsuit in two thousand and fourteen by the district court for the northern district of california in both lawsuits appellant allege that merrill lynch acted with a third party to steal and convert certain stock certificate and doing so appellant ignores that the disposition of those very same stock certificates was adjudicated in a related bankruptcy proceeding in which the bankruptcy court authorized their sale that was in two thousand and one appellant attempted to challenge first in california and when that case was dismissed here in new york the district court's order should be affirmed on four grounds first the district court properly dismissed appellants claims against merrill lynch is barred by the doctrine of race judicata based on the connection with the same alleged injuries in the same alleged wrongs all relating to merrill lynch's role in the disposition of the stock certificates those claims were dismissed for failure to state a claim appellants addition of fraud conversion and conspiracy claims in this action does not change the focal focal point of her complaint in california and all of those claims could have been brought the second the district court properly dismissed appellants claims based on collateral estoppel and lack of subject matter jurisdiction to the extent that they seek to challenge and reopen the bankruptcy proceeding all factual and legal issues relating to the disposition of the stock certificates  at issue here were adjudicated on the merits and not proceeding and affirmed on appeal such that another attack on the sale of the stock certificates cannot be pursued in a further proceeding third the district court properly dismissed a barred this lawsuit was not filed until two thousand and fifteen well beyond the apply couple two to four year limitations periods for the claims that issue which arose from events that transpired almost fifteen years prior and there's no basis for any tolling of those limitations periods for the district court properly ordered that appellant's claims were they not time barred they would be subject to dismissal for failure to state a claim upon which relief can be granted based on the allegations in the first amended complaint and the many judicial records from the prior proceedings there are simply no potential for a reasonable inference that merrill lynch is responsible for any of the misconduct alleged moreover the first amended complaint does not state facts sufficient to constitute any cause of action against merrill lynch for all of the foregoing reasons the district court's order should be affirmed i would be happy to answer any questions that the panel may have but otherwise will submit thank you thank you you have a minute to respon corruption is a very strong word and does not equate to error mean judges can make mistakes without being corrupt you know when you are well it's just you've used the word twice i have used it twice  decision quickly the other two cases on our calendar are submitted so we stand