to assert those claims or decisions that congress and trusted to say indeed their policy choices were most belts the needs of the housing markets against things like the health and stability of the financial and here the choice that f h of a made in two thousand and eleven with respect to the store bonds that freddie mac purchased was not to sue wells fargo how do you respond to the themselves and said we agree to be part of this class action that any notice or an action by freddie mac could not in any way create jurisdiction by the court that is absolutely correct your honor in fact the district court here held that the conservator for freddie mac freddie mac was not just some investor in this a trip certificates in the two bonds that are at issue it was almost certainly the largest single investor it had fifty of the f h of a's conservative powers one of the arguments they make is that if you target the statute and adverse action against a queen that basically your that they have to win every one that if you interpret the statute this broad a elects to sue it is subject to all rules and procedures apply cobol to any litigant other than those that have been specifically altered by here or or another statute but the decision of whether best argument is one that the notice is irrelevant because the district court lacked subject matter jurisdiction to restrain or affect the  the power under consideration is a conservative power under here and the power to assert claims on behalf of the g s sees this court recognized in the all class action orders from day one restrains the f h afaik st of all if you're given an option just as a matter of law logic not to have a class action order of ply it doesn't constrain you but the this not an action but an affirmative act specifically says that the approval right now but the judicial the judicial action they had an opportunity to reject the class action order the perfect example is something your honor him indicated which is they say repeatedly they were constrained by the appointment of plaintiff's lead counsel in two thousand and nine we know that's not true because in two thousand and eleven they hired their own lawyers we've said that new b s that they get to decide where and when to bring legal claims that belong to freddie mac right agreed that's correct so by what you're saying is not withstanding the statute that suggests that they then have to affirmative but the point is the point is what our position is is that freddie mac they had an obligation a minimal obligation as a conservative or to make sure if they really cared about these class action litigations that's that's a good negligence argument this requires an affirmative act by them of release of saying these claims should be brought here and you're saying well they were negligent mission of checked with freddie mac about this w position b if if they don't know anything about this lawsuit at all it's mostly knew nothing about this lawsuit and freddie mac fail to opt out what's your position on whether or not the statute went prevent them from having to live with this class action settlement  obligation let's look at this from the point of view of our as as the plaintiff there were five hundred dollars claimants it's not our burden under class action litigation under eyes in and and philips to investigate the conservator relationship of all five hundred dollars claimants and figure out ok this one deserves notice this one doesn't deserve no that is it's the job of the conservatory they pointed out under the rule you have to give any notice to anyone who's part of the class and they say that the district court and i look back at the order said f h h f the which is part of that is is in the class right by way of freddie mac as you saw them part of the class why wouldn't you have to give them notice directly because the class definition is purchasers is not a purchaser freddie mac is the purchaser we give notice to every purchaser there could have been fifty conservators fifty trustees that's not our job that's the job of the conservator of the trustee to make sure if they're really doing their job that if they care about these litigations and obviously they went into these ten amendments because they wanted to see the outcome of this class of the geisha and they were they were citing the case they were tracking the case and and then basically they missed the deadline but there is no the last entity that should be given a break  they're saying that notice went to the wire room of freddie mac and that's why they missed the deadline by two weeks and that deposition of why this happened yes but we served three times and we  serve to the transfer agent indicated to us we're to serve it one thousand five hundred and fifty one park one road that is that is what freddie mac puts out on the website that says if you have questions about debt freddie mac  be on the purchaser and the purchaser is in the securities act class definition and who beyond that is also entitle to do it do we have to go into the mail room and and make sure as they say that it gets to mr  is why or or goes to a conservatory or a trustee that's imposing a burden on us that no court has ever done for to end but particularly in this case they resends impose the burden here by creating a statute that says they control these claims and they have to do something affirmatively for them to be what again and that's who that's what makes this different than all these other situations that you're talking about the difference however is they told the district court they told the late judge bat five the council for freddie mac said and this is a quote had freddie mac been given adequate notice of the class sort of occasion would have it would have opted out said it again had repeated itself freddie mac received adequate and timely notice it would have requested exclusion from the settlement class by the date ordered by this court they understood that they were they had an obligation to opt out of the class they didn't do it it was only when they realized that they actually got no that freddie mac got notice that all of a sudden you've got this statutory argument which by the way comes nine years after they were established as they saying they're the largest mortgage back securities purchaser in the nation they were involved in multiple m d s class actions they filed opt out exclusions and countrywide and and wells fargo yet they wait nine years to advance radical idea that federal district courts have no jurisdiction from day one any other orders do not apply to freddie and fannie as i understand it you ask us to  restrict any ruling against you to the judgment with respect to the f h f a and freddie mac along and so does that mean that what you're saying is that we could vacate the settlement only with respect to the f a claims i think in the reply brief that is what the f h f a is seeking that the settlement order with respect to them be reversed they're not seeking to have the entire settlement order overturned and that's and we agree with that position us to disturb the judgment only to the extent that includes freddie mac claims in this settlement as i read your brief you don't really address that point what is your your view because the settlement agreement covers the entirety of the class except those who timely opt out it is a settlement that included a blow up provision whereby if more than a certain percentage of the club timely opted out then the defendants could blow up the settlement because it would not have the value that they had ascribed to it at the time that they entered into it the district court said that provision implicated by them if they had opted out when that provision had been implicated on the threshold  have been so past it would have been significantly surprised what the objector is asking for is the same chile to undo the economics of the settlement to opt out and to bring a claim for an additional amount on top of back when it started negotiating a totally agree with wells fargo had any effect it does have a fair because there if i was aware of this lawsuit it elected not to and in the same and wait to see how the class action develops it is also bound by the same litigation rules we know that because the supreme court teaches us in an elven in myers that a conservative or receive is subject to the same litigation rules as everybody else post conservatorship as it is pretty conservatorship that is very important here your honour's because the conservative steps into the shoes of freddie mac here it takes those claims subject to the same defenses as would have applied prior to the conservatorship occurring except if the governing statute expressly says otherwise and here he procedures were not applied to them this is a question of whether or not they are subject to this one occasion at all and the language is at and has to be at the request of the the director and you're saying to us that notwithstanding this affirmative requirement we should they didn't do anything but it seems to require an affirmative act on their part of saying we we're part of it we agree that this is where this litigation this claim should be brought the athletes and not arguing that there was any request by the director or any cannot limit their contract making function with that ok so there their response to that which i think is a compelling one how can you would it happen you went there with a geisha making function and they have two different functions they can enforce contracts and they can mitigate and even though there are all these cases that say you can a french upon their contract courts you have to stay away from the contract making function when you're suggesting to us is that courts without their permission can infringe upon their litigation making function or not being asked to infringe upon their litigation making function the courts are being asked to determine the viability of those claims by the same rules as apply  ability of a eight year period to bring a lawsuit against the underwriters here and it didn't that is something that it could have done but chose not to do it made the decision not to basically just a routine class action when everyone's team about this class action went out the window in september two thousand and eight when at ph if they became conservator for freddie mac at that point and this goes to mr late man's point about what the class council should have done at that point it was incumbent upon class counsel to recognize that as a matter of law here a gave issue of law the district court certification orders ended up violating at least two federal statutes that prevent private law firms from representing the federal government at root this they extended through to last year they preserved the right to bring the claim was a tolling really meant to preserve the right to bring claims and they agreed during the term of that agreement not to sue wells fargo and preserved its claims explicitly preserved its claims its ability to sue that it in the claims to be resolved in the class action if that were the case the to those those two bonds out of the deal and i'm sure there can be another deal another settlement reached but the i see my time's up so i might just address one last point about i'm sorry a that's not specifically referenced in here but in u b s this court held that four thousand six hundred and seventeen between the statute of limitations provision displaced the statute of