first amendment personal system for injured by those p c users unless they subjectively opposed supporting the s c r you i submit this was incorrect a matter of law for several reasons most straightforward of which is that each of these individual personal providers were deprived of money as a result of s o u first amendment violations but you know there's a little bit of twenty twenty hindsight in your argument here and here's what worries me most class action that we see are of this sort to be three type of class actions including some claims that are the kind of across the board one fell swoop sort of claim that the supreme court discussed in the wal mart case and then there's going to be a stage at which there will be individual assessments of how much each person is due and this case is quite different of course because the supreme court in harris  question has resolved the across the board question it's done it's over with you know people were acting under a different understanding of the law at the time these monies were collected but there's evidence in the record to show that some people in this class i don't know how many but some are perfectly happy to contribute some money to the union others felt very strongly that that should not be the case so i don't see how if you get into b three predominance and superiority you can possibly prevail or signature on or comes down to the merits question of what is required to show up first a moment violation is subjective opposition to the fe fine and two were people injured by that violation and it seems to me that there are a number of questions on the injury point that in no way undermine that the notion that there was a violation so the court resolved it as it did but i'm not so sure that you can just say because there was a violation it was automatically and across the board injury that is equal to every last penny that was collected in fair share fees well i agree that the existence of a violation does not necessarily prove there was an injury right but here estimate there was a class wide injury a common injury because all these personal providers were to her personal tender systems were deprived of their money as a result of the first month violation but maybe not i mean they may have been happy to give them money anyhow we don't have that counterfactual right because at the time the law said that a fair share of the assessment could be collected we all understand you know that's not the case anymore it was abolished the minute harris versus quinn was decided but with that background i mean there are many instances in which people voluntarily contribute money to things that they regard as desirable in some fashion is but the critical factor here is no member of the class would voluntarily agreed to join the union or support the union but there was no creation to ask them was there or what we do have is in direct evidence that they would have said yes since so many of them joined the union after harris side well we do have direct evidence because yes here you actively solicited personal systems to join the union but they under a backdrop where they knew that there would be a fair share collected and so did they want to take the next step and join the union back and you know pick whatever year you want near the beginning of your class period i just think that that this is a what if kind of world that we're dealing with and you're assuming that everybody knew at the time that if they didn't join the union zero would be taken from their paycheck but that wasn't the world then no but at the time they did have a choice do they want to join or support the union authorize doing it or not do so but they didn't but they also  thought that they could obtain that that they were going to have the fair share amount taken from their paycheck anyway so i can certainly see if somebody says do you want twelve dollars or twenty four dollars taken from your paycheck or fifty dollars or one hundred dollars somebody might say well the fifty is enough or the twenty four whatever the numbers are and so i i'm i'm concerned that the basic evidence you're relying on to think that every single person would have refused to give even a penny to the union is if it doesn't hold together for me well i believe in a but for causation analysis looking at their injury you ask what would have occurred if the illegal conduct of her right and so the plaintiffs have come in to say if the illegal conduct had not occurred many people would have voluntarily paid money to the union but into looking at a causation analysis you take away the illegal conduct if as you know you would not have seized fees from these individuals they would have retained their money to assume that not really not really they would have think the evidence shows that many of them would have given the money union i mean i don't know if you've ever given any money to the public t v station in your area but a lot of people do that even and even if they don't they're going to hear the public t v station so you know they voluntarily give money yes but under the causation analysis here it's too much to assume that but for the fees seizures in addition to that there would have been additional solicitations and in addition individuals may have voluntarily agreed to give their money to sci you this a question i mean you know we're here on abuse of discretion review the district court thinks that there are that there are real factual questions imbedded in this that will vary from person to person and it's not that any particular individual who could show exactly what you're describing wouldn't be entitled to recover the money just as that's these named plaintiffs have if they can show that that's fine but there but there's no reason to think it will be of each of the employees correct what the court said was the question present was does it violate the first amendment to take fees from individuals who do not want to join or support the union i believe that's the critical phrase they do not wish to join or support yes and i submit that individuals who chose not to join or support the union or individuals who did not want to join or support the union that's you seem to be transforming a procedural step that was not taken because of the understanding of the law at the time in to a conclusion about the state of mind of those of those people and and in them in mullens against direct digital is one case but there are a number of cases in which we've indicated that class membership is something that needs to be measured objectively not based on state of mind that so what's the the objective indication indication of the of the of the state of mind here well there's two answers the first of which i submit that state of mind is not required that the taking without consent establishes the injury that the individuals had property taken from them without lawful authority and therefore subject of state of mind is irrelevant i understand a bit let's let's contrast though with let's let's contrast oh a an exercise of eminent domain power to create a new public park that turns out not to be authorized government grabs everybody's everybody's property while some of those people may be willing to contribute harris focusing on again on whether they wish to join or support the union when they were not asked well they were asked if they wanted to join which i think is a critical factor that's here you already don't forget the support her and support suu operated what's called an opt in system there notices said we urge you to join the union and they give all the reasons why they should that's it if you decide not to join you will be charged an agency fee and that's the choice that the individual personal system the class made these features right in the agency gave them access to a long list of services that the union provided so at the time they made that choice they fought not to join the union gives me access to all of these services those for membership that gave them access to all the supposed no no no there were two lists there was the one list that went along that covered what the fair share he represented and then there was a second list that listed and if you become a full member of the union you get these added other things and so when they made that choice to opt in to union membership they made it against a backdrop that that first list was all going to be available to them anyway well the individuals who opted in the union membership would be excluded from the class at least from that point i know that's extent individuals who didn't mind the taking of property like they did mine a compensation that simply goes whether they want to remedy but it doesn't go to whether there's injury and here if the question of whether an individual opposed taking their money only goes to remedy that's no barrier class certification because among other things that can be resolved through the opt out for speech or could i ask you speaking of some of those problems can i ask you about our guilt in case you've distinguished in your in your brief as i understand on on the theory that a punitive remedy was being sought in that case that label was applied and it could be applied here as well to what were simply a claim for restitution  guilt involved a restitution remedy that very importantly included monies the union was lawfully entitled to collect in fact ninety one percent of the remedy they sought was monies the union was lawfully entitled to collect and this court held that would confer a windfall on the individuals and therefore create a class conflict here only compel no no there isn't the reason that the we held there was a class conflict was because of the effects that the remedy would have on the union in that case and there is some language to the effect of the motivations of who would want a punitive remedy and who would not but here so going to the question of would an individual decide to opt out of a remedy due to concern for us to use financial wellbeing first i consider that to be extremely speculative and quite frankly implausible that many individuals would refuse to accept money from the sci you do concern that would somehow harm the union and even to the extent there were that's something that should be resolved through the opt out the opt out option if there were to be a class or vacation and i'm not clear exactly where we start but if if there were if you had to re define it had to start over again for example the first thing you would have to do is go through the litany that my colleagues are referring to of all of the different reasons why someone may not want to be  assessed or join the union or else they appreciate the benefit to know all that sort of thing in the opt out procedure would there be a set of options that could be mean should be i'm just looking at something that may accommodate others when you have a situation where there were quite a number of people who did not want to pay this there are others who maybe one time deal where they are actually a caregiver because it may be a relative or someone else and that's the only time they do this that's why they're in and out because there's no question you have a huge variation in whatever the damages are to each individual in t somebody some from well just in the three people who got it wards one was five thousand dollars another was four and whether the other one one there's a great range around or yeah and so that is certainly going to have to be determined at some point and i wondering also if that same variation could include an effort for people who actually opt out for reasons like i really want to be part of the union or i think i really benefited from some of the things that by being on that on that list where they would withhold my money someone else may think well i'm only good for half of that i don't know that's i'm just looking at the variations if this thing were to go forward as a class action i believe so your honor the district court has a great deal of discretion as to how to structure the opt out procedures under rule twenty three so i submit that if the court found that proper to create various options as opposed to an all or nothing that could be done in terms of the total now taken from each provider that's known there is a very large spreadsheet so the total known as i'm out of the total now just no but it could be done to the opt out so then that total amount known specializes in such things just given the number of people and the number of bad addresses and such but yes the notice could be structured in a way to give individuals various options you thank you thank you very much support the union let me turn to the legal issue first home care workers who valued union representation and the wages and benefits the union is able to negotiate hand would have paid their fair share for those services if it had been voluntary suffered no first amendment injury from the prehaps spare share system there like the drivers in new hampshire who are something that they had no first amendment objection to doing with those we the people would go well with those would be the many fair share haters who were union supporters and had no objection to paying their fair share fee and the evidence showed that when the union was able to contact people about eighty percent became union members the fair share payers were overwhelmingly people who hadn't been able to make personal contact with when the union did make personal contact they became union members so let me ask you this about the just the structure of class certification obviously you know you go through  four twenty three a factors obviously were in the b three world this point which requires also superiority and predominance and you also have the safety three of the opt out procedure so at what point is it the case that somebody is concerned enough about the  class with respect to the important characteristic that you should just say no to a class action all together as opposed to saying well you know they're going to be some people you know we didn't mind having instant coffee in their in their curing cups or they're going to be some people who didn't care about you know some other factor leaky windows maybe somebody else was paying in they really couldn't care less so what point do you say this is just not a good class and this isn't something that will take care of these objectors through the opt out procedure well first the opt out procedure has never been seen as a substitute for showing that the twenty three factors are met in the first place it may work for a case where people are injured and the issue is whether they want to remedy like the employees who supposedly like working on paid overtime we the court certif outclassed if an employee really doesn't want to recover they cannot tell but the out process would improve whether people suffered an injury here in the first place and we just show that they didn't return and  notice even if it's assumed that everyone in the class suffered an injury when they weren't given a choice which we dispute we think the injury is having to pay the money over your objection they would still be like the suspended students and carry pipes who may have been tonight procedural due process but they would have been suspended anyway so they had no compensatory damages do they have a choice with where the money was not in this case the way the system works rehire us the state automatically deducted fair share fees because that was the system that has this court held was justified by the law at the time so backwards right after the fact it's not just after the fact there is evidence for instance for example the declaration of the union president that continuously over time about eighty percent of the people that the union contacted would sign membership when did they fund to the eighty percent well during the entire class period when new home care workers would come in to be unit when the union was able to contact them about eighty percent would sign membership cards the people who didn't were mainly people to union when it was unable to contact and in twenty fourteen when the union did a membership drive most people signed up including most fair share payers who were still in new unit became members and they were paying the political and ideological expenses of the union even though after harris they could pay nothing in the district court could certainly conclude as a factual matter that a great number of the fair share payers were union supporters in terms of the opt out process because of the amount of time that's gone by it's not possible to rerun the clock backwards the money paid for collective bargaining services that people received it's not like the suturing a case about the courier coffee where people were sold that cheap instant coffee instead of the fresh coffee and it was inherently less valuable here the money the fair share fees by definition paid everyone's portion of share of collective bargaining costs that they received in services right so the lists i was looking at was in the supplemental appendix page thirty four but there is a list of twenty things that are covered by the fair share  and then there's an additional list of six more things than non chargeable activities so i take it your position is that i mean that this is explaining these are the chargeable activities so it's explaining how you come up with the fair share fee that also would indicate services i suppose of the employees you're getting yes then the declaration of stock at one zero six five the unions president explains that we wouldn't have been able to keep all these offices open provide all these services and do everything if we hadn't been collecting the fair share fees the presumption that the plaintiffs are asking the court to adopt is also contrary to paris itself and which majority said that the union wouldn't collapse without fair share fees because people would step up and become members it's also contrary to the presumptions in the railway labor act cases and machinists of the street and railway employees the allan in which the court supplying to presume that nonmembers didn't want to pay for the unions political an ideological expenses and said that a class couldn't be certified because there was no proof that the nonmembers would actually have objected to paying those expenses contrary to hudson it's contrary to  generally speaking when we are looking at class actions we try to define the class by means of objective criteria judge hamilton mentioned that a few minutes ago but if you look at that first sentence in harrison if you look at the theory that you are advancing it doesn't look objective it looks at subjective looks as though the people who are those who've suffered some injury are people who subjectively for whatever reason you know don't want to support the union maybe they just need the money or maybe they hate unions or maybe they don't see the point you know there could be reasons i suppose and so how do we square that circle is this an area is the first amendment an area where we use subjective criteria or is there some way of reconciling these ideas well there may be other cases in which class search is appropriate and as your honor mentioned at the start of the argument this is a somewhat unusual case in that the supreme court already resolved the merits issue and what the plaintiffs sought certification of was a compensatory damages class and their theory of case management was that the class would be certified and without any proof of what the class members wanted the union would pay thirty million dollars judge shot and denied the motion without prejudice and indeed made clear several times in his decision that it was not for clothes and a motion for class certification here to common issues for instance he suggested perhaps whether the union had a good faith defense to damages crime might be a common issue he also didn't foreclose a more narrowly defined class based on some other objective criteria we don't know if he was referring to the fact that ten thousand members of their proposed class are actually our current union members but he didn't foreclose class certification he denied without prejudice the particular motion that was made for an eighty thousand member compensatory damages class and he did so not only because of a lack of predominance a lack of but also an adequacy problem and having plaintiffs who made clear that they would pursue the case even if it destroyed to union seeking a damages remedy that has  basically it started over and i don't see what it would almost have to pull everybody in the union to then find out those people who would say no i don't want to join or i don't know what to do a fair share or something so you would have to start from scratch to even come up with the names of people you could include a new class and that's that's overwhelming for the plaintiff and that's why i think the only way that could even be determined in a one shot taken different amounts that's true but that that happened and then later on things are to say well let's check with those people and will be more careful in a lot of other things that happens but initially and for what period of time i and i i would want to in my view which clearly different is that i think the opportunity for those people to express their willingness or recognition or whatever would be at the time of the opt out in a dollars but we submit that the union would have a right to litigate whether people did or didn't support the union at the time that just not returning and opt out notice wouldn't conclusively prove what someone was thinking six years ago and that if we put them on the stand and they said well at the time i loved the union i was happy to pay my fair share for the day they didn't experience any first amendment injury so it's not just a matter of offering them do you want money or do you not want money will go out it's got to be the injury i mean if they took the money and i don't know how that can be anything other than the injury in th someone says why didn't her well if this collective bargaining agreement had been written differently if the workers had gotten a little bit less money and roast and the state had paid the union a lump sum to provide representation all services we wouldn't have a first amendment issue the first and issue is the individual association of the workers with the contribution and that's only an injury to the people who had some kind of first amendment objection so it's not just about the money it's not a conversion cakes it's a first amendment case and many people who had no honor in terms of whether an objection can be required two points first most importantly objections were not required here irrespective of whether sci you could have used an objection procedure under which you considered a full dues pay or unless you object to paying less the reality is su you did not utilize such an objection procedure here so chechens cannot be required when in fact as you you never require objections to its fair share payments and the second point is that even if suu did do it it would be illegal the supreme court of knox cast a lot of doubt on the propriety of often procedures or i'm sorry opt out procedures even with respect individual employees who can under current law be compelled to pay some fees but whereas here where it's unconstitutional for the union to seize any fees from individuals without their consent objections cannot be required so for example the first amendment prohibits the state from compelling its employees to support a political party nor would say the state of illinois to compel its employees to be republic these are democrats unless and until the object objections cannot be required where no fees at all can be exacted but more importantly here s c a districts are familiar with the old