one the plaintiff a chilling diligence by coming to court to assert his claim one classification was denied and two enforcing the statute of limitations would undermine rule twenty three by encouraging individual claim to come forward while the class action was pending neither of those reasons suggest that the court today should expand american pipe there's no basis to extend tolling to absent class members who have not shown your individual claim that you know anything yes if the statute of limitations had expired and you are seeking equitable tolling then american pipe and crown court say that you can come to court and assert your individual claim if the statute of limitations had not expired another class action could be brought and what we are proposing is that the court honor the statute of limitations and require that anyone who wants to file a class action come to court early and in no event later than that the running of the statute of limitation is very different what about honoring rule twenty three it seems to me that you're creating an exception to the rule if you just read it on its face the statute of limitations has run because of american pipe and crown court so why shouldn't there will be available to you the statute of limitations has run what an individual can do is show that entitled to equitable tolling and you do that two ways by showing that by coming forward to the court and starting your claim and to show that the extraordinary circumstances no longer exists and so these people have their claims but rule twenty three is run out on it remember in this case we already have a determination by a court twice that classification is not appropriate the statute patients as ron american pipe and crown court say you can bring your action but it has to be an individual act guess i don't understand mr amundsen why the diligence argument doesn't work the same way in the second stage after denial as it does in the first in other words in american pipe what we said was if you are relying on a class action that's diligence enough no you know that might itself be controversial contestable but that's what we said in american bite and i guess having said that i don't see why it's also not diligence enough to rely o new class action what american pop in crown court say it is diligent to rely on the class action until class certification is denied and at that point you must come forward their claim no i don't i mean it obviously didn't deal with this case but the whole theory of american pipe was that for any given individual we were going to make them come forward we were going to say reliance on a class action is sufficient to show diligence so here these people are doing just that they're relying on a class action that happens to be a second class action but under the same theory they should be able to rely in order to show diligence that that's what we said counted as diligence but once the class action fails it is not diligent to rely on an untimely class that's the difference the statue imitation is wrong and of the court of force of the stache limitations all of these issues will be solved upfront we would have before the court early on in the case all those who wish to present class claims not wait until the end that women feel after instructional materials but everyone comment early start the district court can pick the best representative and make the best was the statute doesn't talk about this represent best representative in terms of individual members it says the best representative is who has the greatest financial interest so if i'm if my financial interest is moderately sized or small sized there's no inducement for me to do anything other than what american tolling tells me to do which is to wait until the class issues are resolved before stepping forward we were i was i was answering the the question from justice kagan in the broadest sense but in the under the private security litigation  suggesting who should be the lead counsel in the lead plaintiff right the p s l or a does have a regime set up for who should be the lead plaintiff and the lead counsel and if and it anticipates that there will be pipe was trying to avoid which is to have a multiplicity of suits being filed and encouraging every class member to come forth and file their own suit no your honor that's what you're suggesting american pipe say we don't want you bringing your individual actions while the class action is pending it says nothing about bringing on your own class please tell me i'm sorry go to the is that suppose you're right about that mr aronson that what rule twenty three is primarily about it's a comparison of class actions to individual actions and saying there are times in which we think class actions is the more efficient way to do things then a million individual actions but again that interest seems to be the same here because once the class certification is denied you are saying we're now everybody has to come bring their individual actions and i think what somebody who was looking at the american pie reasoning might say something to the effect of no it just as at time one it made more sense to have a class action than a thousand individual actions so two at a time two it makes more sense to have a class action than a thousand individual that both interests that they mention are served in the identical way with respect to what should happen after class denial of a class certification motion as before in the abstract yes your honor but when the statue of limitations intervenes and it does cut off rights then we have to see whether or not the individual members are entitled to equitable tolling where there was always a question in american pipe that we were doing something extraordinary that we were saying it doesn't matter that the statute of limitations has run on you and we didn't for two reasons because we don't thought that there was enough diligence and because we thought that rule twenty three policies indicated that we should encourage the class action device rather than the individual action device and here again the exact same thing is true diligence is shown in the same way by reliance on the class and once again even after the denial of a single motion for class certification rule twenty three would indicate that we don't want to have a million individual suits but instead want to encourage a class well your honor it is not reasonable to rely on a class action where the where the stash a limitation has already expired if you if we enforce the structural imitation rule twenty three's interest would be served because we would have the classes coming forward early and those who want to leave the class who feel they can do a better job than someone else will come forth of the court make their case present their class representative and the court can decide which is the the way to proceed that's much much more efficient but much more in line with rule twenty three then having syria out i'm shots trying to get a class certified which is what we had here i'm sorry i just know please go ahead and my question is this the reason why the class was didn't have any bearing on the you're proposing and i see various different potential kinds of reasons let's which is the plaintiff isn't representative of the class playing field has a special relationship with counsel any of those in adequac plaintiff's counsel is that different from a deficiency in pleading in your mind it is until you get to the statue of limitations but yes if there's a class war defect that's one thing that's what happened in the first class year where there is a ruling from the court that that that person who was part of the class who wants to proceed can come forward with his or her individual claims but if we follow the special attentions again and we have multiple class actions that are decided at the outset of who's looked the best lea and something had and they've joined those cases where the consolidate or however they join them those other people who want to leave the class will be part of this case so if something happens with the lead plaintiff then there's someone else right there who can step right in and say ok that only plaintiff the plaintiff might have died or something might have happened lee plaintiff there will be others there lining up ready to take over that's why enforcing the statute of limitations would serve the interests of the class members and serve the interests of twenty three by having all of this decided at the outside counsel just returning to where the chief justice started us under american pipe we say that a cruel tolling gets you a new claim here and you accept that but you ask us to write an exception to rule twenty three so you get a new claim except for rule twenty three you don't get the benefit of that rule is there another circumstance where courts have allowed equitable tolling but denied access to procedural mechanisms in the subsequent suit well yes there are there are class action waivers that have been upheld by this court and i'm going after equitable tolling that this court has imposed and allowed not a new suit can you think of another example where in that new suit the equitably told plaintiff is forbidden from accessing a particular procedural right well the wise available to all that it gets i'm not aware of another procedural rule but the it directly applies here un twenty three because the absent class members their claims are untimely they cannot be i gated the absent class members who sit on their rights have their claims expire so there cannot be a class of untimely class members what we i'm sorry you're creating there i think that question was is there any other situation where we have equity leagues someone's right to bring a suit and deprive limitations the american piper all comes from traditional principles of equity and those principles require diligence and extraordinary circumstances so it seems to me that you're proposing is that we give the facts something we've said doesn't exist so barossa a name plaintiffs in a second suit says whatever the findings of the court prior or with respect to the class so you're asking us to say no no there is a because we have a structural limitations that that's cutting off their claims not to preclude a fact what you're asking us is to write a new american you know we're asking the court to apply the structural notations as written are you asking for an exception equitable tolling or are you are you are arguing that these claims are not equitably told because there was not diligence with respect to the letter your honor equable told me requires diligence and extraordinary circumstances and someone slips on their rights and doesn't present her claim those claims will expire when the stash limitation expires someone's who's just sitting back and doing nothing is not a topic we were not aware of any case where someone slept on their rights and was given equity will not a claim can come forward to file a claim that's exactly what american pipe said when they said that they should move to intervene and crown cork which says that they should they can file their own class their own complaint into the judge's chambers and says here in my hand i have ten thousand complaints and he says you know this they're identical would it be alright to consider those as a class just those that's ok because they all rode out the complaint right well the federal courts are equipped to deal with with mass towards with with mass situations like that just prior and they deal with that whether there's a class or not so the fact that happens after the crash or the matter courts have consolidation orders to have the full panoply of docket management that our federal judges have on a day to day basis sometimes you know there are claims that come by the thousands sometimes they don't suppose in this is  the first class action is dismissed a thousand plaintiffs diligently bring one hundred twenty to diligently bring their individual cause of action within the statute at that point would after the denial of the first class you can file a second class action because it's not binding on absent class members we know that from smith respect i'm sorry you're basically saying  there's a statute of limitations to bring a class action there's no statute of limitations under american pie after the statute has expired for bringing an individual cla well assuming justice kennedy's hypothetical cases lasted more than the statute of limitations there's a thousand individual suits there were five could the court then say those thousand i'm going to treat as a class you're saying no it's i'm not saying though that if it's a class of those thousand people only i could see that the court might want to deal with that but it doesn't have to be a class the court can deal with it however on i'm sorry this makes no sense you just said the statute of limitations would stop it from being a class if it's right it would stop it but the court to do it anyway because the court cannot certify a class of abs class members of slept on their rights that are not entitled to tolling but of a thousand people show up in court to there's many things that the judge can do to deal with the thousand people it happens all the time it's not up to them but that could happen even if there wasn't a class in the first place could be some of it that occurs people say i want to file a class action i want to file my own action and a thousand other people say the same thing that can happen and american pipe doesn't save them a special imitation would apply for their claims and they were all diligent by by stepping forward but they're not diligent if they sit back and wait till someone tries a class action twice to stash them patients fails at that point they have to do something and they could requires that they come into court and file their complaint but not as a class not as a class because the interest the crown cork and american pipe were protecting was and this is the extraordinary circumstance what the court said was we have a class action going here we don't want all of you individuals out there to file your individual actions while the class action is pending let's give the class action a chance and see if it works and if it doesn't work ok the circumstances gone now step forward your claims are alive you have your claim for not taking away anyone's claims the class denah work and the interest was protecting individual claims those are the ones that are entitled to tolling not class claims neither end and the back end is where we can install these problems as to whether or not we have a total tolling whether a people have asserted their rights it will they will all be protected because they'll have the best class representatives and the coral be able to make the best class decision at the outset that and that all we're asking the court to do is apply the statute of limitations we're not asking to and to come up with a new rule we have the congress gave us the rule and what we're proposing is that we not expand the intrusion into the statue of patients with another court made doctrine that we did in american pop by saying now it applies to class actions there's no justification for that there's no basis well let me give you a hypothetical i mean suppose it's one of these  class actions where there's actually a very serious wrong and aggregates damages are very high but each individual person's damages are very low thirty two dollars and  there is a classification motion and let's say in this there is that that motion is denied for a reason that really has nothing to do with whether this is something that is properly treated by a class action let's suppose that just in the individual facts of the case this was a bad day and plaintiffs not added and not an adequate representative you were theory would then say ok so he's dismissed a session of limitations has run because these things take a long time and then all these people with extremely valid claims claims that we would want to be brought in order to force defendants to internalize the costs of their illegal behavior well too bad that just can't go forward if you force the stuff limitations and announce that we have a stash limitations we're not going to allow all of this back and maneuvering then people will step forward that if there's a problem you will have claims that are thirty two dollars claims well you know people have thirty two dollar claims and they have to make a decision as to whether or not they want to pursue the thirty two million dollars thirty two dollars claim that is the entire purpose of our rule twenty three is that we understand that with respect to some category of claims we're not going to have them individually or it would be so ridiculous if we have them individually that we would prefer the class action device if it works but that the class action device doesn't work then that then the individuals have their own claims limit again here it's not working just for some reason that has nothing to do with the appropriateness of class treatment it just has to do with the fact that one named plaintiff is not a good today and plaintiff right and if and if we have all of these cases up front why enforcing a sta limitations and requiring anyone who wants to leave the class and there hopefully there will be more than one and not other sitting back and waiting for the statute of limitations to expire but coming up forward and something happens with the classroom resentment of the dimension will be someone else waiting there because they will file their claims early they would been part of that case and can step forward and they could fix that and even if the statute had run and if they were part of the case then it would relate back to the statute of limitations would not be an issue if we get people in court  not in the initial class action and if we get everyone up front in that class action then you'll have you won't have this problem because you'll have other class representatives ready to go and can step right up and they will been part of the litigation the litigation should not miss a beat at that point but if there's a problem with a class representative in there someone else is you know what i wasn't chosen to lead this class but i think i can do a good job and apply to the court to do that i'd like to reserve the rest of my time thank you counsel claim at the time the second class certification motion was denied that concession means that we you have to consider whether or not there is some exception to the notion that all of the rules of civil procedure apply in the shady grove case this court held that if application for class or vacation is made under rule twenty three it applies automatically if the conditions for rule twenty three  think that's a fair characterization of their argument i don't know whether i agree with their argument or not but i don't think that's the that's the argument the argument is basically this you've got a statute of limitations courts have to follow it like it or not know how the court  justify allowing somebody to file a claim after the statute of limitations has run and the theory they say is that there was this old doctrine of equitable tolling and when congress an act of the statute of limitations it did so with the understanding that it would be subject to the doctrine of equitable tolling so in order to allow this the case the claim to be filed after the statute of limitations has run it has to fit within the doctrine of equitable tolling and equitable tolling requires diligence and in extraordinary circumstances so you have to show but those are present in the case where a new class action is filed after the  expiration of the statute of limitations if if you know if you proceed from the assumption that they are they that all of the members of the class had claims that we're equitably told for all purposes that of course your argument is a good one but they don't proceed on the basis of that is not they do not concede that that promise well the second class action here smile was filed within the statute of limitations period so i think you have to confront the question of the logic that justice kagan is questions posed which is why doesn't the same diligence and extraordinary circumstances that applied in the first timely filed class action also apply argument about rule twenty three about the rules enable nat about shady groove about tyson duty is that an argument that applies even if you think that where in a different world with respect to diligence in exceptional circumstances it would although i think that it is fair to say that this court's decisions including last man a n c in cowper's described the american pipe rule is a different form of judicial aquittal power designed to enforce the principles behind rule twenty three and to promote judicial efficiency in the adjudication of individual claims and that's why in the menominee decision the court distinguish between quote class action tolling and the type of equitable tolling that arose in holland for individual claims where you have to look at both due diligence and extraordinary circumstances and i would think that the way you synthesize and rationalize these principles is that you say the american pipe pool does satisfy those classic instances of due diligence in extraordinary circumstances but they do it in a somewhat different way because we are trying to incentiv people not to bring duplicative claims that was the whole driver behind the american pipe rule to begin with that's the extraordinary circumstance and the question then about due diligence is do you look at due diligence before or after the case was filed classically under equitable principles you looked at what was the due diligence of the person before the case was filed here the idea is that a class member who is an absent class member is a exercising due diligence by relying on the american pie pool exactly right and that is what i think you are and so that's pretty unusual right i can't think of another example an equitable tolling doctrine where we do this which may suggest some question about whether american hype is correct and if we have doubts about that why should we extend it so radically here in a way that was unforeseen even by the authors of america or you're not extending  interrupt but but if we doubt those rationals if we doubt american pipe and think that it doesn't really represent true equitable tolling principles common law why would we extend that well you would again you would not be extending that what it could i think you would be doing is to say as mr aronson i think has acknowledged that the individual claims are timely under his reading and his understanding and then the question only on the understanding of american pi that it's after the fact rather than before the fact that's the difference and that is an expansion what he's proposing is an expansion on the idea of what due diligence is because you don't classically look at do diligence after a case has been filed you look at what was the plaintive doing before the case it was filed and so to that extent he is asking for an expansion from what the common longer standing of equity was in the determination of equitable tolling i guess some grand idea is one thing i find very puzzling has been conceded here for individual claims then the rules of civil procedure apply automatically and all of the rules apply he's acknowledged i think today that rule twenty and rule twenty four apply so that intervention in joint or can occur and the question is what is the principle of equity that says will twenty three doesn't apply says it so i think i think and i don't want to put words in his mouth but i think let us focus on someone like me or common person what you do is you sit home you go to your office and one day this complicated letter comes and it says there is a class action being filed the due by some pencils from so and so during a period of time and if so you are entitled to some damages and you know what i do about that nothing it tells me i have a right to opt out nothing do i finish reading it no or right now think of people who are like that now what happens is that first letter came when plenty of time to file a suit then there was a class action then it got dismissed then the some individual people filed because they were told now he's saying let's look back to that common person there we know what he did the second time nothing did he read the letter you know detroit the wastebasket probably already so as to that he is saying it is not equitable to give that person didn't even read the letter a second chance again to be a person who didn't read the letter i think i think that something like what the argument is and i think that the answer to that was actually addressed by the principal drafter reporter of rule twenty three when it was emitted in one thousand nine hundred sixty six professor benjamin kaplan who is the reporter had a very long article which this court has cited i think nine times in the harvard la hundred sixty seven and what he explained was that the reason for this change in part was to address the situation of the small claim of the small person those were his words not mine but the idea behind  rule i think the question that justice barr is getting at and i guess i am too in a way is can you stack them forever so that try try again and that the statue of limitations never really has any force in these cases when we do about that given the congressional judgment that there should be a statute of limitations and what restraints might there be if if the ones that your friend proposes that the ninth circuit suggested for example that class action attorneys would exercise restraint should we rely on that justice course that i would have a couple of responses to your question in the securities context we know the answer that they repose period is the outer were limit for cases where there is no repose period what the ninth circuit proposed in suggested was that the principle of comedy is the most powerful mechanism for limiting the any concern that there might be about serial classification motions we know from smith versus bayer that the first denial of a classification is not an issue or claim precludes it so then the question is what were specked does the second court apply when the same class  brought forward with the same claims there are multiple cases in the district courts that have dealt with this very issue outside of statutory context where there is a repose period we've cited them on pages forty one and forty two of our brief note nine i would point the court in particular to a case called winnick foods where judge bryer in the california district court has noted that there is eat it is relatively easy for a district judge to determine whether the same rationale would apply to deny the second classification motion as the first there is another decision called ott which we cited in that footnote and there the district court looked very carefully at what were multiple sub we know in al case the first class certification motion was denied because the lawyer and his expert made a foot fault they were unable to come up with the requisites of the fraud on the market reliance theory a problem that was corrected in the second case the smileys case where the evidence was so overwhelming to meet the fraud on the market presumption that the other side did not put in any contrary evidence and so the question here really is are you going to deny what is undoubtedly a meritorious fraud by a company that was delisted from the nasdaq stock exchange by the f c c for completely cooking the books because the claims that are being brought up by small value claims that are seeking to aggregate your you're going to deny it because the claims are filed outside the statute of limitations your honor respectfully this mine's case was filed inside the statute of limitations and so the question is i think that the question in equity justice kennedy is whether or not there are two questions one is does equity allow the court to say you can apply certain rules of civil procedure in one setting but not in another because you  bring the class action and i get rewarded even though i've never really done much of anything and i've done it and said well why does that saul why did why does my claim survive the running of the st limitations and your response to that is well you behave no worse the second time than you did the first time and that the reasons for giving you this reward are exactly the same they are no different because it really ha nothing to do with time it had to do with the desirability of allowing small claims to be recognised you i have that correct well i think that the problem about the incentives is misunderstanding what the representative action that's being brought in a class action is designed to do it's intended to say in this kind of context i have a low value claim if my claim individually were to proceed i probably would spend more on lawyers than i would be able to recover and that's why rule twenty three provides as a representative a matter that you can aggregate these claims in order to make sure that the low value your so you're saying your has a thing that in his gut is all they have to show why is it worse the second time than it was the first time and what's not right yes but what the courts have said what the courts have said is that the reason this court in particular in crown court in american pipe is we want to avoid having to pull ahead of filing so i mean one solution to the issue that you are surfacing through your various questions is that multiple class action cases get filed and then the district court is dealing with what are a large number of filings in a procedurally complex matter to determine which class action ought to be the one to rise to the top and you're having exactly the same problem the score asked to avoid in petro process which the national council national conference of public employment retirement systems prefer on page seven points out that there were five hundred protective filings in the petro bra securities litigation one reason that the second might be different that might be different than the first because if you lie on the second you've got to allow the third and then the fourth and the fifth and there's no end in sight and what judges have held mr chief justice is that the end in sight is that you have to have a new rationale for why the subsequent class certification motion should be granted and they get denied and they get denied fairly routinely and they get tonight across the broad spectrum of the statutory claims that people bring and that is the empirical truth of it and it is a solution that this court in smith identified as the mechanism because this court could have cut this off and smith several years ago by simply saying you only get one shot at class certification but the court unanimously held no because it is not preclude civic against the absent members and if you apply that rationale with the idea that if there is tolling you have the proof chance for a meritorious class here we have a situation where because the inadequate representation functionally a class of what would have been a very meritorious client set of claims against states this company that had committed fraud is basically being foreclosed because of the inability to bring high value claims on an individual basis or to have adequate counsel who can properly construct a securities class act you argue that if the second let's say for qwest certification is the not in the first case then the second cases brought and the new district judge doesn't just says well i just think the first district judge was wrong and i don't care about you know i'm not going to accept that as a matter of comedy is there any remedy for that well i think justice alito i've not encountered that in the cases what frequently happens is that these subsequent cases get related in transferred back as related cases under recent deal procedures but i think that answer your question would be resolved under a disk abuse of discretion stand issue on appeal would be should the second judge have applied comment on the on the basis that this same rationale applied think that would be the argument and that would be how a court of appeals would review that i've never seen this  an enforceable doctrine i would think the second district judge would be perfectly right in saying look i have to apply the law independently and i'll give respectful consideration to what the first judge did but if the first judge was wrong i'm not going to fall with a friend that's just as i think that and that's why it is under an abuse of discretion standard because one would be looking at did the district court abuse the discretion vested to him or her in that circumstance but i would point out that i'm not aware of where these kinds of cases get appeal and brought it up and precisely because of the point that justice course a trace from the ninth circuit opinion which is that attorneys who are bringing these  cases tend not to bring them if they are not going to succeed here we have a situation where because of the default by the attorney there is a meritorious case it should have been certified had it been properly brought and the question is whether or not the time or an hour and that leads me to if we if we would rule against it it seems to me the effect might be that we would encourage more protective filings and that would solve the problem wouldn't it we wouldn't have to create these extraordinary rules that extending american pipe in new ways we just create a new incentive structure that would ensure that there are backup class actions available what's wrong with that i think that what's wrong with that is that it is inconsistent with what led the court to the american pipe principle to begin with which was that this was really a balancing among a multiplicity of interest and we're now balancing a multiplicity of interests in a slightly different context and why wouldn't the balance with respect to encouraging protective filings might be slightly different here i think that the answer is that one of the rationales of the american pipe who is to protect district judges from having to do a lot of unnecessary work in processing both individual and protective class action claims and to do a lot of things that have to be done is administrative matter that's unnecessary if you recognize the representative nature of the class action that is filed the alternative is back and administration over comedy question's that are effectively on reviewable well no how do we weigh those two interests i don't agree that these are comedy questions that are on reviewable and of course where you have  aware of any court that's ever held that that this record abused its discretion and in the declining to follow another district court's decision no but i'm also not aware of any decision of a court that says that just because you have an equitable tolling of an individual claim you can't use all of the raul's of civil procedure that are available to you we we are in uncharted waters to some extent just as course it but i think that the first instinct of the american pipe cou in denied anyone can come in in a window after that they are diligent but the class members that have done nothing and the sitting and the ones who don't come in a still sleeping on the right right but the second subsequent class action here smart would satisfy the diligence rationale that that one kid might wish within the statute that's correct one is that's correct but the rationale the logic of it applies in the same way and it's not correct i don't think justice ginsburg to say that the court in crown cork was talking about remember that in both american pipe and in crown cork the class sort of occasion to niall's work done because the class certification could not meet the requisites of rule twenty three a and that meant that there was not going to be a is that equity should not allow the courts to pick and choose which rules of civil procedure apply if you have a timely filed claim you know the principle here that i think has been important is the idea that the procedural rule shouldn't matter and what ins up happening is that the petitioners position has particularly harsh results because the defendant has much more control over the running of the statute limitations here both the dean case and the smyth case were settled through individual settlements so if you were to type off the size that a defendant who did not want to face a follow on class action would simply wait until one day after the statute of limitations has expired and the class or to be case in motion has not been acted on yet will simply buy off the lead plaintiffs and know that it will never face a class action there's been a circuit split i see it as three ways the first second fifth and eleventh circuits have basically followed your adversary's rule the third a has have follow the rule you're trying to advocate for go back to the third and eighth argument a little bit and tell me if we're thinking of doing what you're adversaries why shouldn't we accept that compromise i think that the compromise position would certainly solve the problem in this case because for me and so leaving that aside i think that if you were to do that you would affirm on a separate basis but the judgment of the ninth circuit would be upheld and the class would be timely and allowed to go forward i think that the principal difficulty from it as a dock trial matter is that the court has not tended to use these types of equitable arguments as a way of having rule twenty three operate as a toggle on and off switch and that i think is where you have a certain amount of analytical difficulty the way we have proposed the solution to this case is if the claim is timely and it's timely is an individual matter the individual can bring in under rule twenty three that is a very straightforward clean simple rule so if you were to then look at say we don't accept the simple rule we want to have something a little bit more complex i think at the very least you would say was the plaintiffs who brought that adequate to represent the class and was there a deficiency in the representation i think to that extent you would then have to look hard at what were the various factors that went into that adequacy it becomes a much more complicated question when i think is the court has told us we want these timing rules generally to be simple and straightforward so ability can snow how to follow them but certainly is a matter of equity it does not seem fair where you are talking about a rule that is allowing potentially meritorious claims to go forward to be snuffed out simply because the person who got to the courthouse first happened not to be competent in bringing about the kind of case that would be representative of all of the various plaintiffs unless the court has any let me begin by saying that we have not conceded that all of the absent shareholders claims are timely they are not timely they are not timely because they have not come forward mr rush's individual claim is timely because he showed the diligence by filing an action and these extraordinary circumstances existed before him we should not a file that action but is the absent class members they have not shown any diligence they have not stepped forward to file a thing and there are no extraordinary circumstances because the class has been do not win and we're not saying that mr rush is not able to use rule twenty three he can but what he cannot do is use rule twenty three to revive claims that have been dormant that are not timely that's what he can't do is rule twenty three but if he wants to come into court and say you have got to rule twenty three claim fine there's no one else in that class because they have not filed their they're not entitled to equitable to let me also address what justice alito and justice gorgias identified on comedy to illustrate how weak comedy is as a defense is we asked the judge in smyth who was the same judge and deem we couldn't say your preclude because it was filed in a timely way so we cannot use preclusion under smith versus bear so we said we'd like you to show comedy the district judge wouldn't even show deference to himself so how can we expect other judges to show deference to other judges and i thought that that was because the problem that he identified had been cured it had not been well it had not been cured he thought that that that that smyth might be able to do it in a different way and then throughout smyth because diligent for relying on the class yes but up to a point and let me read from crown court and i'm reading from one of the three supreme court at twenty three ninety seven to ninety eight we conclude as did the court in american pi the commencement of a class action suspends the applicable statute of limitations as to all members of the class who would have been parties have the suit been determined to continue as a class action once the satchel a taishan has been told it remains told for all members of the putative class until certification is denied at that point class members may choose to file their own suits or to intervene as plaintiffs in the pending action so reliance on class action alone in the class action itself is not enough you have to do something else counsel said that he's ok with getting tolling from one of the class actions but not the both but not both if you do the math they filed so late that respondents need tolling from both cases so if you rule that he's not entitled to tolling in the first case because it's on a class wide basis then their claims are time barred under any standard but let me go back to that the basic point that we're trying to make here with by enforcing the statue of limitations we think that if if class members get in their early class representatives apply early it solves all of these problems it solves the problem justice kagan of the thirty two dollars claimant that purchased this will how this will enhance route twenty three because the best class represented will be there early the district judge will be able to make the best decision early on and if we have multiple class actions fine the driver of american pipe was not multiple class actions merican pipe and crown courts that we don't want all these individual actions while we're trying to deal with class issues dealing with more class issues better class representatives we think that's a good thing we think that the p s l already for example does the same thing for us so i have to remark that in the in crown cork at the end in in justice powells closing concurrency said that american pipe gives is a very