please the court my name is will lead to more void gatherings and i represent over three hundred individuals who objected to the class action settlement below who have collectively been referred to as the  throughout this litigation the structural protections of rule twenty three are not there just to be a hassle or or a nuisance or an impediment to settlements or  disturbance in the functions of the court with the lawyers try class actions they're there for a reason they have utility they've got a purpose it's to protect the interests of absent class members from intentional and unintentional abuses of the class action system the supreme court held in ortiz that in the application of these structural protections district courts need to have heightened vigilance they need to be more vigilant in the settlement context then they are in the motion for class certification context because in the settlement context there is no adversarial component to the certification and absent class members are more easily susceptible to abuses of the system in this case at least fifty nine thousand individuals were bound to a rule twenty three b two settlement one they have no power to opt out and they were represented by class council that was saddled with a conflict of interest in violation of twenty three a four and the class council release too much they released claims for individualized monetary damage in a b two settlement running afoul of the supreme court's holding that wal mart a lawyer represents one client and you've got a settlement with one defendant that lawyer can make decisions about well i'm going to to release these claims and collect on these claims and the settlement for my one client with wind up one defendant where we've got to be careful is where the lawyer has more than one client for example class and this these lawyers also represent a water authority and you are releasing one client's claims in order to advance the interests of your other klein and that that's the situation we've because we have a determination that's made by the district court that the settlement was fair and reasonable and adequate and we were review that determination for an abuse of discretion he says the negotiations were ar or were made at arm's length and your clients are now getting clean water they're getting some monetary damages the district court says this isn't an a length negotiation and the settlement was a reasonable compromise if we look and see that those determinations are supported in the record if the record reflects these findings how do we find that the district has has warned against and in am can decision justice ginsburg warned against exactly that where the where the violation occurs is that there was no the the structural protections of rule twenty three were violated it's not enough just to say it's a fair damages that the only ones objectors is that the part of the settlement that they're really concerned about here because there are there's a new filtration system for getting clean water they're getting compensated for the time that they were told not to drink the water and so that's right as the monetary damages claim your honor the one that they're concerned about that's right the water authority doesn't have any interest in the class members monetary damage the water authority has an interest in being compensated for its water filtration system monetary damages for what now for the purity of time that they didn't that they were able to drink the water no monetary damages for mental anguish those mental anguish claims are critical to this appeal and those mental anguish damages are not preserved in separate litigation they're not as though you are out of that they preserve damages for personal injury and they preserved well and that's bad and they preserve damages related to property damage arising out of water that gets on the property via other means in other words via other means than the drinking water the mental anguish damages from this were released in the settlement against i and that is the concern now in alabama those monetary metalanguage  significant that the plaintiffs the class members filed claims for negligence nuisance and battery and unwanted touching and in alabama when the wrong when the conduct of the defendant places the plaintiff at risk of physical harm you claims for their physical injuries are preserved but as to all these other people who heard this news they were placed at risk of physical harm by the defense conduct they got claims from mental anguish that are significant and they're all being released in this settlement it's a monetary damage and oscillator that damages for mental anguish are individualised they are an inherently individual injury you've got to look at that individual and say how are you affected mentally by this and that's going to differ a lot of times from person to person and what the supreme court said in wal mart v dukes is that individual as monetary damages claims is that at a minimum individuals monetary claiming damages claims are not appropriate for certification in bt in the b two context in other words not opt out of context and the court drew the line very clearly between the two claims which are not for injunctive relief and thus are not opt out and b three claims which intend to cover claims for monetary damages and have extra protections that allow individuals to opt out of the class because they are still a title to have their day in court if they want to pursue their monetary damages claim on that on their own they get to opt out of the settlement and go forward that's an important protection that is covered that it applies in the b three cont and not the b two context and that's why the supreme court and dick said these individuals monetary damages claims half can only be certified to be three contexts where you've got these extra protections in your loud opt out that if we find that there was a conflict that we need to rule on any of the other issues or just send it back and say get different counsel that it would be dispositive your honor if the rule there is a conflict and that's specifically the issue and am in ortiz and there's a case that's got very similar aaron analogous situation is that in re payment card interchange fee cases a second circuit decision where you had separate subclasses you have one subclass they these the monetary damages class seeks a form of relief that's different from the bt one junk of recently flass they've got interest that tug against each other and as such there has to be separate counsel and they reversed on that basis of the conflict issue to be dispositive you know how  because outside of the alabama rules of professional conduct well that album rules professional conduct apply because there are four hundred individual class members who actually sued the water authority keep in mind that the way this this polluted water got to the class members is because up until very recently the water authority failed to filter out the chemicals from these was this water before pumping it into over twenty five thousand individuals homes and over at least four hundred class members have actually sued the water  so you've got a conflict there that implicates alabama rules professional conduct now in addition to that you've got am kim ortiz and in re payment card interchange which do not apply rules of professional conduct they apply class actions under twenty three a four and that's the situation we released in a b two that is just as conclusive that is just as strong of a reason to reverse it and i will revert to serve the rest of our time like that is ok with the court the district court did not abuse its discretion in finding there was no conflict of interest not only was there no conflict of interest  generally but as it relates to this this injunctive relief class settlement which is what this court should focus on the district court found no conflict of interest at all the district court found there was an absolute unanimity of interest between the w in the l and the members of the class with respect to the injunctive relief to be provided this moment clean safe water at no cost to the class by statute under alabama law the dubby in the l is obligated they are charged and obligated with passing on in the form of rates or rate increases costs necessary to do things like the installation of the granular activated carbon filtration both principal and interest on the bond that the debian e l had to take out to fund that project all of that gets passed on to the class the conflict argument raised the objectors is based on a fundamental misunderstanding of what this settlement does and does not provide it's purely injunctive relief in no way is the being in the l made whole is they've argued in no way or the interests of the class members in any way subordinated at the end of the day the debbie m e l did go and secure bonds to fund the construction the engineering the installation of the granular activated carbon filtration system but those costs are going to be passed on to the class members i want to respond to the arguments and some of the cases that they raised and kim and ortiz not not applicable  to this class when all and cam and ortiz were global asbestos personal injury class settlements in which claims four individuals individuals with present manifest personal injury were being released in addition to claims of individuals who may have an injury in the future this settlement in no way releases any personal injury claims at all all of those are preserved the under alabama law there is no right to recover for fear of a future injury that case involved a situation where a couple individuals were removing an oven and they were told this oven has no asbestos associated with it the individuals removed the of and found out later it's full of asbestos and bad asbestos so that work there claim is all about fear of a future injury or thought they were asking for their images for prior injury it gone now the battery claim has survived but is part of any given take in a settlement negotiation there are certain claims for example dock and a five percent contributor to only one of the chemicals that issue in this case willing to fund the injunctive relief necessary to pay for the filtration system so part of the give and take in that negotiation was doc in for that aspect of an emotional distress climb but to the extent any class member has a manifest personal injury present manifest injury those emotional distress mental anguish kline's survive for that individual they are excluded from th i would point the court also to the holding in re corrugated antitrust litigation it's a case that di can cite it in the reef fifth circuit nine hundred eighty one an argument was raised there the class council had an impermissible conflict of interest because there were i think twenty six defendants that had been named in litigation had to do with pricing of court corrugated materials early and that litigation settlements were each with a couple of the defendants and an argument was was made by objectors that those settlements disproportionately favored class members as opposed to others and in that case the fifth circuit said even assuming there could potentially be a hypothetical conflict of interest sometime in the future what we have to focus on here is the terms of the suburb and that's what the district court did correctly and that's what this court should do and there is no conflict of interest as it relates to this particular partial settlement as you recognize this litigation continues against three i would point out since of twenty seventeen we have we have gathered together almost thirty million pages of documents related to the on going litigation against three m we've conducted for sampling of events along the tennessee river with experts we've taken two trips to minneapolis minnesota to take depositions of three m current and former employees and also taken depositions indicator indicator so in no way has the been made whole has no way this litigation at all ended it continues with all claims and all aspects of relief vailable to the good morning robert shot a c for defendant absolutely dyke in america i think may please the court settlement between the class and dyken in this case ensures the class members receive clean water judge klon did not and it's undisputed that they were met here dyke and acted with respect to the class on grounds common to all class members by putting the chemicals into the water and final injunctive relief is appropriate with respect to the entire class there's no dispute that dyke ans agreement to fund the filtration system at the west morgan plant is in substance injunctive relief the objectors agreed with that judge kalani agreed with that and significantly that injunctive relief is in divisible and non disclaimer bowl by class members no class member can opt out of receiving clean water and that is the basic rationale for why the two class actions do not carry opt out rights it's fundamentally unfair for class members to accept the benefits of the class settlement and at the same time continue to fight for additional objectors claim that the b two certification was improper here because the class settlement released the alleged monetary claims for mental anguish to be clear those claims were released but they were not certified we cited in our brief and in the recent twenty eight j letter a long line of cases continuing up to the present in which courts recognize that claims can be released that or not certified or not even contained in the complaint and indeed could not have been contained in the complaint for lack of jurisdiction in those cases that you're citing they all have the same attorney yes i mean those are not conflict relevent cases but yes the class was represented by a single attorney the part of rule twenty three that governs analysis of whether the release was proper in scope is not rule twenty three b two it's rule twenty three d which provides a range of protections for class members in settlement contacts that do not exist in the class with a geisha in context the right to notice the right to object and be heard on objections and most importantly the duty of the trial judge to make an independent evaluation of the settlement to determine whether it was whether it is reasonable and fair to class members and it's under that rubric of fairness that the trial judge whether the consideration of the class is getting is worth the consideration that the class is giving up and of course in a class action essentially the only consideration the class has to offer in settlement release so it's certainly possible to imagine situations in which a trial judge could look at a settlement and conclude that the value of the released claims outweighs the value of the consideration that the class is getting and for that reason conclude that the settlements unfair but by the same token there are situations and this case is assuredly one in which the consideration that the class is getting by way of settlement here the guarantee of clean water outweighs the value of the claims that are released and just to be clear about the scope of the release its and appendix volume two docket seventy four dash one page four one six it covers the claims asserted in this case which are claims by people who have no current illness it does include claims for mental anguish to the extent that there are related to the provision of water by the west morgan utility however there is an express carve out for claims  damages related to personal injuries so if any class member in the future develops an illness that they believe is caused by exposure to the west morgan water they will be free to assert a claim against icann and seek the whole range of remedies including for mental anguish attendant to their their personal injuries in this case judge klein was well within his discretion in approving the settlement because of the clear benefits it conferred on the class clean water or a refund for the one month when the do not drink the water edict was in effect it does remedy mental anguish in the sense that it prevents mental anguish for future consumption of water the the customers have nothing to fear from the water because the level of chemicals is not detectable as mr patterson said the mental anguish claims here were either clearly not viable or best entirely speculative under the southern bakeries case mental anguish for fear of future disease which in substance is what the plaintiffs or the objectors are seeking here is simply not compensable as a matter of law and finally judge klein was entitled to take into account that dyken is only a five percent contributor to the relevant chemicals in the river yet it's paid a settlement was of value to the class of seven million dollars five million in cash and two million and other benefits a clearly dyken did not get off cheaply in this case given its low responsibility for the contamination let me just respond to the objectors argument that somehow the duke's case changes the landscape here dukes involved the litigation class it had nothing to do with a settlement had nothing to do with the release holding was simply that monetary claims for back pay are individual lies and cannot be litigated in a in a b two class the courts expressed concerns in that case about foreclosing on a certain claims or in the first place debt and in the second place had to do only with the context of a litigation class in which there are the protections of rule twenty three notice opportunity to object independent review by the trial court in the litigation class once the class is certified if it certified as a b two class class members don't get notice they may not even though the case is going on if the class loses the class members but may be foreclosed trial court obviously can't predict protect the litigation class from an adverse judgment none of that is a concern and a settlement class where we have the protection of the trial judge assessing the fairness of the settlement defendant like dog can all they want to do is get out from the amount of money they can push and get a release against everything they don't care who that money goes to as long as they get their release and they don't pay more money than i want to objecting to you know that their mental anguish they don't have their claim for damages for mental anguish anymore or do they actually want to go back and say well this five million dollars is not enough