please the court you're out of this case raises a fairly straightforward question that mr scott file a timely mode to intervene in the underlying case that were on appeal can be phrased in different ways when did he first know his interests were not being represented or when was he obligated to take action in a class action although it's phrased in different ways that's the essential question well you know they go and you say that time is august eleventh twenty seventeen is that that's correct ok so what did he learn on august eleventh twenty seventeen that he didn't find out before he learned that on february twenty fourth he learned that the parties had agreed to resolve on a nationwide class basis the dispute which would include the claims in mr scott's case so until that time he didn't know the parties had negotiated or even come to a resolution of all he knew was that a complaint had been filed a motion to compel arbitration had been filed and and then on august eleventh found out that in fact that motion wasn't being heard but the parties had reached the settlement right but he knew when november twenty fifth teen that there had been a related case filing and that's what a year and nine months before correct it just seems to me that  mr scott card outmaneuvered in this case and that's really not something that the that the district court was was required to intervene on his behalf i mean what was the few as a as an intervening mr scott would have the role of a party in the case and as we've well i think that i think what would have added to the case sure he has the opportunity to and we and we the motion he represents a fairness hearing he could opt out or he could object to the terms of the sentiment could in about he can opt out for himself he cannot opt out for the class he represents no but if the people that  concerned they cannot doubt they care is this thing moving along this a train that's way off down the track and he's back at the station the members of the state class can opt out they won't have the benefit of the knowledge that they were part of a a litigation certified class that was being prepared for trial and that may change the decision whether they would want to take this settlement as opposed to pursuing their their fortunes in know that information the notice to do not go out in the case because it was removed the second time to federal court and it's still pending before judge ross what benefit would mr scott have added  litigation you're saying why it might have been good for mr scott but what benefit would he have added what would he have brought to the litigation and i haven't heard thing about what he would have done to enhance the case at the plant at the at the moment that he filed the motion intervening he could have participated in the terms would have been included in the settlement agreement and that would have changed it could have changed now we're supposed to speculate that it could have changed things that's not enough you see what i'm saying we've got to find that the district or to be used to its discretion don't we have to find that he had something the terrio to add to the plaintiff's case that was it could not have otherwise been before the court would not take discovery on how this came about and if we set out in our brief the circumstances are at least suspicious and in in all cases where you have a settlement class where the class has not been certified prior to settlement the court has a heightened duty to scrutinize how it came about what was the process without an advocate on the other side to to take that position the court is limited in  will gather information and present it to the court about how the settlement came about opposing the scientists opposing the plaintiff and defendants joint effort to bring the settlement in for cruel and certification of a class all at the same time certification and a settlement all at once the court has that duty to determine how did they come about this was there collusion is this a it goes to the fairness of the settlement i had a surprise that scott had any more of a bas intervene in august and he didn't february because he didn't know the terms of the settlement so he said he's going into this blindly not knowing the terms of the settlement but just still saying i bring a benefit how can you do that because your honor the way the case had been framed from the filing of the amended complaint and the stipulations as to what could or could not be argued the plaintiff in the bond case was was in a very disadvantageous position a very that could not revisit the prior order that that sent them to arbitration on the other claims in the case despite the fact there had been decisions that an arbitration agreement like the one in this how can he say that he could have materially added when he doesn't even know what he was adding to i believe because of the posture of the case as we've said in our brief it was that the plaintiff did not strong position to negotiate and the odds of getting a windfall out of a poor position are very unlikely i mean anything is possible you're ok but in in that situation and with that set of circumstances the odds are that the sum and agreement is going to be less than it could have been with a stronger plaintive simple is that as good as it is it could have been better and that is something that a court has to look at in particular when determines whether it's fair adequate and reasonable mr scott's enter into the case as a party or an intervention gives him an opportunity far more than just objecting it's at the fairness hearing to dig into how the process of the settlement came about and to put that before the courts of the court can make its the terminations that in fact this settlement class is appropriate and that some it's fair adequate and reasonable and without someone taking that position then then the court doesn't have everything that it could have to make the proper determination now as to the idea that mr scott should have intervened that an earlier date whether it's at the filing of the amended complaint or the original complaint i mean there are decisions from and we've cited to them in this court in the third circuit seventh circuit that because there is a class action unnamed class members do not have an obligation to make those types of efforts to intervene early stages because the supreme court has said in american pipe and in the united airlines versus macdonnell case based on an american pipe  you don't have any obligation in a b through class until you get notice that the class has been certified and do you have any case law in this circuit well your honor the case that we rely on is the hill versus western electric case and the hill versus western electric case was one in which the court that yes i mean it would just help me so much if you would just say yes it is or that this is out of circuit case yes hill versus western electric is the case we rely on from the  and in that case it was a class action and there were a series of changes in what was required of class representatives during the pendency of that case which required to come to this court twice and to the supreme court wants but the but the decision that we've cited to and that we're relying on is the one where the the the parties who there were there was a decision that the class representatives could not represent the one of the sub classes because you had to have a member of each subclass representing them that's you know hill versus western electric and so after after it was determined that party could not could not represent the subclass this court's the terminations party cannot represent the subclass there is a petition to the supreme court and after the petition was the nod nine months later three people were tempted to intervene in the district court to be representatives of that subclass that couldn't be represent right and in hill didn't we say that the most  with respect to timeliness is whether the proposed intervene or move to intervene quote as soon as it became clear that the interests of the unnamed class members would no longer be protected by the name class representative will hear it unquote lie and that quotes the mcdonald here how was it so that the interests of the class members would no longer be protected by the bond class again your honor because given the that was as soon as it became clear because until that august eleventh letter where there was the first indication there had been a settlement that would subside the claims of the classified and scott nothing that happened in the bond case would have affected scott well what would be affect what would happen as of august eleventh that would make it clear that the interests of unnamed class members would no longer be protected record they that would not be the same class were on track i don't guess maybe it's a variation on judge gene into question and i can't tell why it suddenly became clear to you that unnamed class members would no longer be perfect why would they not want to be protected by the named class records and because someone who is not their representative has bargained away their claim how do we know that it because didn't know the terms of the settlement because what they could have been exactly so you're just arguing it seems to me you're just arguing that they bargained for an unknown and therefore it must have been bad and class action and unit the force or it's already said you have to consider the prejudice to the other side this thing has receded through a year and nine months and  your best argument is there could have been something in there that wasn't good and we were the people but white knight who could have come in in an ass that if there had been a problem isn't that your best case if there had been a problem with the terms of the settlement we could've forced a closer look at it isn't that pretty much what you're saying mansur you're on yes certain that it's not exactly what i'm saying but that is a version of what i'm saying your honor but i would i would just add this there there has been no preliminary provable no notice has gone out and under under your scenario then mr scott approval if it's granted think could move to intervene then because we believe the the settlement as it's laid out now is the fiction and so then there wouldn't be a problem so in other words it was untimely because it was too early which has been argued by by the critic lawyers and it's too late all at the same time but right now when the notice goes out under virtually every case that's been cited when mr scott get would be able to move to intervene and it should be granted and he would then have all those opportunities we tried to intervene while the negotiations were taking place so that we could get ahead of it so that we might be able to participate and might be able to make it a palatable settlement but that was rejected and so now mr scott can get his notice moved to intervene and under the analysis that we've presented as to what he adds to the case and what all the other decisions say is that once a b three class member gets notice then he can take action is obligated to take action to move to intervene so we could do that and that will come sometime in the future i'd like to reserve the rest of my time for  motion to intervene and as to that i think the questions that the court raised a question duncan's question about why it is that mr scott intervening when he did go to the heart of the question he had no reason to intervene when he did he waited too long he should have been if he that the motion to intervene was not timely that with decision with was correct was certainly not use of discretion this court has said but the purpose of the time in this requirement under rule twenty four is to prevent a tardy dinner from the railing the litigation just bond litigation for almost two years since no later than november of twenty fifteen he had known at the time that cases arose out of an identical set of facts he knew that bond was brought as a national class action therefore that his interest wor that at any point in the piece in a way which would affect his interest nevertheless he chose throughout this entire period not to step forward you can't intervene evidently for his own strategic reasons because he wanted to continue to manage it on maryland state court and as the court suggested he made a tactical choice and that choice did not work out he only sought to intervene when he learned that mr bond and cricket had entered into a pulmonary settlement so that the bond litigation is alternatively argued that he was not only too late but he was too early what do you make of that i think that that's a miss on understanding what we're saying we're saying not that he was too early we're saying that the learning of the settlement he realized that there might be something amiss and therefore his it was were adversely affected and mr bond's counsel were not i could adequately representing his interests he could not have known that on the face of the record because he didn't know what was in the saddle as he said it could have been the greatest settlement date would cause disruption expense delay and that as as has been noted by the court this court has said is the most important consideration in intervention are the parties to the underlying litigation explanation offered is that a settlement was consummated that is not a reason for stepping forward is the prejudicing quit go both ways in other words you two look to the prejudice of the parties who have reached th settlement but can you also look to the prejudice if any to name the members of the class that mr scott wants to i think not run as part of the timeliness inquiry as this court has stated it in cases like i called  one looks to the prejudice of the parties to the underlying with question and that is because the question goes to should intervention be permitted why is intervention being proposed at this late date and the question is is that going to cause prejudice to the parties is it that is th stated the timeliness inquiry is sort of a balancing test the books that these three considerations and so no one of them is spot of prejudice is a significant one i think here mr scott fails all three because the case has progressed almost to completion the there is prejudiced of parties as the district court has found and he has offered no plausible explanation for why you waited as late as he did or why step forward when he hill but that was to a somewhat different point well i think sure there are two different sets of cases here or there the case from other circuits which have well that the point about its final hour there is a presumption if the intervention is prior to the close of the opt out period and i don't believe there's a four circuit case on that point now that's that correct that is exactly right and even if there and as we've said mr scott fails all all three of those  or as as you can they cannot trust to opt out of a class of that use if there is reason to think that there is something wrong with it he can raise all the objections that he's raising now that could they bring in other class action though i think that was mr wolf's four times four minutes for argument i don't have much to add from mr all fields presentation i just want to direct the court to the supreme court case of and doubly c p versus new york which i cited in my brief for thirteen us three forty five and i really think that case answers the question that's before the court today and that is when when the count for timeliness and in that case the supreme court found that there were two dates that it looked to it determining whether an intervention motion was timely the first one was how long had it been since the applicable complaint was filed and how long was it from the time that the person knew that they weren't being adequately represented if those dates are different and in that case the complaint had only been fought for months prior to the intervention motion and in that case it had only been two weeks since the person the third party who attempted to intervene we knew for had actual knowledge that there potentially wasn't adequate representation and in that case it's very similar to this case in piquet's the issue at the intervenor had a problem with for inadequate representation was the failure of the united states to oppose a motion for summary judgment and that's when they came forward and said two weeks later and said we need to intervene that's not the proper way to to pursue this case here that date would have been in february where mr scott had actual knowledge that either certain arguments were being waived or that the identical claim was being raised in the federal court so with that  was an appropriate case and i've already described that that the first appeal came to the court it was determined that the class representatives could not represent one of the sub classes and went back to the district court and then there was a petition to the supreme court and that petition was denied nine months later and at that point three parties attempted to intervene to represent that subclass and the argument was raised once the supreme what's this court said you can't represent the subclass because you you don't fall into their circumstances the interveners knew that they had to intervene and they waited nine months and this court said in hill that we agree that they had no obligation to take any action whatsoever until the time for the disposition of their titian for cert had concluded so even though they knew and even though nine months pass the court said there are periods of time that you are given and one of those is for the supreme court to determine your petition for cert in the class action context there are cases and we've cited to them one now the third circuit and and they say that in a class action in a b three class action a name class members are not obligated to take action to protect their interest until they get notice that the class has been certified because filing a class action complaint does not create a class so right now in the negotiations for the settlement that is in the bond case no one is representing the certified class  scott represents because the attorney for mr bond doesn't represent him and doesn't represent those class members their rights are being negotiated away they have a representative and none of their representatives are taking part in the basis my question i wasn't challenging hill as inapplicable i was just stating my understanding that the presumption of which you speak that the class action is presumed timely if stopped prior to the acts this is exploration of the classic opt out period has at least as far as i know only been adopted by the third circuit well in those terms that's correct your honor but what hill did in the section that i read to you from the opinion before in my original argument and i quoted from the the supreme court case and united airlines versus mcdonald that part of the mcdonald decision where the say that they're with me where they say in a class action the critical question is when does it become clear you're not being represented and then they say to the american  case in a footnote and they say because if we were to require people to intervene before the time for their intervention actually has an effect like in that case it was before the case finishes and there's a final judgment and the person wants to appeal so they intervene if we were to make people do this or early stages when complaints are filed we would violate the principle of american pilot tool for all these unnecessary filings that early stages in a class action we only do that until the class has been certified and so that is why i believe hill and i did not say hill adopted a presumption that i was in accord with i'm sorry no no i think it was just a bit of a miscommunication it was in accord with that presumption because it reaches that same conclusion i believe under the principles of hill that american pipe says in a class action class members are not required to take any action to protect themselves until it becomes clear their interest is not protected by the parties representing the clients and i think that that's what we have here just doesn't say when that is just what the third circuit has done in  drawing a bright line it didn't that's right two cases before class or vacation after class or for case and that's what it did is draw that line but two things i want to add your honor about what does mr scott bring to the table number one he's not bound by the stipulation that mr bond and and cricket entered into that he would not raise all those arguments that could have been raised that were raised prior in the litigation so if he were a party he could challenge for instance the original petition to compel arbitration he could challenge that this was an adequate settlement he had all those and he could take discovery in order to do that and of course the my time is up you're on a you may finish a sentence he those arguments have already been waived in the underlying litigation and and given the given the circumstance of the case was just got probably and i believe