next case for argument this morning is horia against nationwide credit and  brown please the court and if you on this appeal are to in case of two cases that involve different sets of facts two different debts from two different hospitals two different dispute letters one for each debt and two different false credit on claims splitting independent of race due to the st suit could not be the basis of a claim of race to tata because it wasn't litigated to a conclusion it was settled and therefore has a federal requirement of mandatory jointer and i wonder where that might come from it's not the law of preclusion i'll be asking this same question of mr harding well i guess i'm a little confused your went to judge that is it's a ruling about mandatory joint or not about the law of preclu there being a judgment my understanding is that the settlement is considered a final judgment i know it's not for a fact of the st case depends on the terms of a release and there's no release in this record this is just black letter law well again my research suggested quite the opposite your honor that when a claim is subtle that this settlement can be created that can be treated as a final  this record but was that filed in the st case that was settled know that the settlement agreement is confidential so that the documents never made a matter of public record right what what happens as a result of the st case depends on what the parties  d well they would have agreed to bar any other similar claims it's common in a release that all claims the same plaintiff as against the same defendant are barred or they could have decided to make it case specific i don't see how we can resolve this without knowing what's in the release well i don't want to betrayed the company jelly provisions of that agreement but i will say that the other side has not raised the issue that the real that's true that the release or lease is an affirmative defense which is waived if not raised that's provided in rule eight but again your honor i guess i'm here seeking reversal of the court's decision as written and the district court's decision as i understood it was a decision premised on residue if that is an inaccurate understanding of the decision then my oral argument notes are not going to be particularly helpful  guess the only other issue of law that i observed in the district court's decision was with respect to the statutory damages scout and how the statutory damages cap an f t c claims would would preclude the ability to collect an additional statutory damages amount in the nd case the statutory damages count that is on a per action basis this is a separate action premised on a separate and separate violations of the  same plaintiff to debts arising about the same time i don't know if they came out of the same injury i couldn't tell from the record if that hospital bills or medical bills came out on the same injury you sue  defend it in both you sue the defendant for one and settle it and that's about sixteen days later you sue on the nd it seems odd the way it was structured and the fact that you didn't try to settle them all to locally with with the st one how did this come about i'm a little puzzled but like you i can't speak to the to the settlement and how delicate i wasn't even privy to the settlement but i can say that it is common practice to file successive lawsuits same time period same defendant it seems sneaky well your honor i can't speak to the motivations i did not work on the case initially i came in towards the end of the case but again if something is unseemly that's a separate question to whether it's permissible under the law and unseemly behavior in the eyes of you know certain observers that is still nevertheless legally permissible is legally permissible so if parties are allowed to do something under the law the question for why they chose to do it in one allowable way versus another a lot of weight is really not at issue it's kind of irrelevant to whether preclusion of any kind or a mandatory join r would it would apply so but going back to the statutory damages issue that seems to be judge wood's primary issue with with this excessive lawsuits and again our view is that has not been briefed and has not been raised yes the last time that the reason it has not been raised your honor is because there was a stipulation filed to dismiss the case with prejudice on the merits that's the stipulation that's the order that was filed in the st case that's the reason the trial judge said in the plaintiff is not raised either in this appeal or below the issue or if you did raise it below his advantage at this point the issue of whether there was a final judgment on the merits those were conceded late of doesn't raise that in his brief so it's been forfeited we can certainly brief that issue if the court want to discuss the issue but i can't tell you and i which was the issue that we read and when you look at the test that applies for that and you look at the facts as you point out judge they are identical letters they are identical  they were struck by the same lawyer set to the same defend it relating to the same time period there are different doubts but the effect allegedly effect that exactly the same credit report and they are different debts make them different transactions are how are you asking us to define transactions well the court of course the word transaction if you go back through the case law the transaction test has been defined many times and as we point out in our brief you know that the court has sort of refined or talked about the restatement in the herman case and the restatement talks about a series of transactions it doesn't you can have a series of facts or a series of transactions that relate to the cause of action which is exactly what we have here because under the statute you can only get one thousand dollars you can take my hypothetical from the last case ok but he shows up on monday flies for a job for your says we don't hire blacks here go away on friday person shows up again s should have been joined with the st claim well i think the problem with that is the answer will be i asked her no and then you can explain why  well if the statue of limitations that already expired i would say is no statute of limitations problem in this case well if i was just lawsuit the next day and it's after we were asking about whether the yes there's a bernstein case there are many cases which proper about how you have to look at the full tally of the circumstances it's a fact oriented approach that you have to apply and your hypothetical you're your honor is a completely different case we're talking about the f t c p a here and on both of those complaints council let it go to see if we can get the title seven case right or right the supreme court's already right doesn't that preclude calling them the same transaction if they were the same transaction they would not be separately but they would not be kept separate periods of limitations attached  well but but here in our case i'm not asking about it here right i'm well aware that this is a hypothetical question that's why we engage in them i would like you to engage sure well if the supreme court has said that those are separate transactions under those circumstances then i would agree with you but here the debts are not what are principally at issue were not that the debt collector is not suing on these debts the consumer is suing under the f t c on the a failure to tell the credit agency that the debt is contested correct those things happened at different times it would have been possible to give that information with respect to the st debt but not the nd or the nd but not the st the period of limitations would be different on each one right unless they're the same transaction even if we view the st case as ending in a judgment there's no merger in bar and i'm trying to figure out why if you go back to the last case where we're figuring out what the peerage limitations are on transactions or the supreme court's decision in morgan against amtrak how we would call these two different failures to report contest to the debt collection agency has the same failure to report at the same time attack it's go back to my employment discrimination it's the same week it's the same violation of title seven it's the same supervisor the supreme court says they are not the same transaction they have their own periods of limitation you can do one but not the other you could have learned your lesson or not but this is an f d c p a action where the the remedy you have to look at the way these facts apply to the remedy and the remedy depends on the number of violations the one thousand dollars cash so you're saying we need to find the transaction remedy no but it part of it if you have to look at the totality of the circumstances you have to look at not only disputes if it facts that are alleged and there's no question that both of these claims could have been brought at the same time when it doesn't dispute that that but right word in rule eighteen a is may not must i understand the separate claims maybe julie it's not that they must be joined the only mandatory joint a rule is for compulsory counterclaims and whatever this is it wasn't that well i gree with you on that but hey it's a district court noted both of those cases go to the issue of the one thousand dollars cap and to your question was why did you do this well the reason they did it they state why they did it because they want to spread to attorneys what's wrong with that if the statute gives people an incentive to file structure that's then you can expect them to file separate suits i don't think the statute gives them the right to do that look debt collectors are allowed to pursue to pursue multiple debts it happens all the time there's nothing  trial judge relied upon it talks about suing any debt collector who fails to comply with any provision of this title with respect to any person ok and then so and that's what we have here we have a debt collector trying to collect on a couple of debts we have that in many cases we had that in the rhone case from earlier where you had which wasn't cited but since we're talking about this that's the case where there were ten the question was whether you had to report in aggregate or d or separately would there be an issue for every single one of those no because the statute concent contemplates suing a debt collector a person truly a debt collector and it  doesn't say anything about allowing a one thousand dollars statutory cap for a separate lawsuit i don't know if if we allow a separate lawsuit for every debt the debt collector is collecting that's simply contrary to brown i'll just add that affirming the district court's decision on the rescue to cost issue would make an utter mess of rescue dakota law and the th circuit the court would be supplanting a clear standard of the same transaction or same premium sound law making requires the setting forth of clear and definite criteria rather than a general directive to decide each case in a manner that will maximize the attainment of the law's objective and that's nine  construction set forth and my point is briefing is abundantly unclear philip and filled with ambiguity and subjective notions about what is sufficiently similar without a clear line for predictability going forward  for those reasons the court should reverse the district court's decision in the case below remand for the proceeding thank you thank you very much the case was taken under advisement