arbitration or in light of what we say are changed circumstances and all nd whether this recording aired in deciding a class action waiver applied only in arbitrations and not in class actions and rd whether the error abused his discretion in sort of find the class which consists of the two claims now with fraud and d t p a turning st to the st issue regarding the motion to reconsider this does present somewhat unusual circumstances and i  feel like that t v character in poltergeist that they're back but there are the significance here is that the district court said i'm not going to consider anything that happened i'm not going to consider new facts  evidence and the one that is now on the record you can draw inferences from that in favor of the plaintiff i believe but you can't ignore we would contend for example the summary judgment ruling where the court said as a matter of law there is no malicious prosecution because there was no initiation what impact if any on this would with the dismissal of the malicious prosecution claim that well the trial court specifically in its motion denying our request for arbitration specifically referenced that claim and say they've alleged you initiated a criminal prosecution and they have a malicious prosecution claim and therefore if you had proceeded in that criminal prosecution you would have impacted that claim and therefore you  litigated the fact that there was no criminal prosecution of these two plaintiffs and no one has presented any evidence that anyone that would be in this piece of class was actually crim we prosecuted is a new fact that undercuts the allegations they ma undercuts the district court's opinion and undercuts this court's opinion in vinyl were specifically said we're going to assume the plaintiff celebrations are true so that's the exact kind of thing the law of case dr exception seems to be geared towards new facts evidence at trial if you will with summary judgment is different than what you allege and without a malicious prosecution claim which was sort of the basis of the invocation of the criminal justice system things are radically different and that would seem to require the district  conference he invited the parties to brief whether or not that would change anything and we did brief it he never ruled on that except at an oral hearing status hearing he said i don't think i'm going to do anything but i'm going to transfer the case to to the eastern district collin county because that's where all the plaintiffs are we then by then following motion reconsider front of judge was and that's our nd one and he denied that saying a lot of the case that's why you're up here and that's why we're appealing here your honor yes correct so it is it is are appealing the nd motion to reconsider which was brought in the light of now you've ruled on summary judgment you have cashed is out there and you now have the final also exceptional of the case which is was the decision clearly  essence of what the plaintiff's contin which is we invoked the criminal justice system by criminally prosecuted people turns out not to be true never was true and that has to have a material effect on it but also other allegations that the district court initially relied on such as we threaten them with from a prosecution turned out not to be true there was no contact between us and no plaintiff or other person incurred defense fees in defending against a criminal prosecution because there was of course no prosecution they didn't have any fees to pay when they ultimately paid in response to the district attorney did they did they had to they had to pay the statutory fees which are a merchant fee of thirty bucks and a da fee which range anywhere from twenty five dollars to seventy five dollars this court and the district court focused on the fact that the criminal prosecution would have required them prejudiced them by requiring them to spin legal fees defending then and the criminal prosecution resolution might affect their ability to defend in the subsequent arbitration of which those two were not true we admit they paid fees and if that alone is some is prejudice then there would there would be that but that's not what i was focused on because when you look at ok pause right there because that may be the nub of it if the record is conclusive that they did pay fees and lost time why wouldn't that still suffice for prejudice even if it wasn't the basis for the original district court and the panel majority's opinion because the court focus not necessarily on on you know when you they don't concede or they don't disagree that they owe the debt and that they had to pay the debt to the d a and then they don't say that's a prejudice to us and the process of that what the case is focus on is did our invocation of this in some way prejudice you not just in general but in these subsequent litigation we're gonna pass because that's really the point i can invoke the process but if that is to say the arbitration or extra pressure on that what's the best case that says that because i was trying to wrestle with that is it prejudice generally of paid money time seems to me yes if it's prejudice to defending in the arbitration context and your client invoked that favored immediately i'm not sure the little fee issues would somehow prejudice that i don't have other than the cases just generally speaking of that and we focused on what the the district court focused on to see whether that was true so there is no case that says to me is obviously this is not out there in the tech supreme court to really address prejudice so you don't leave any other context on it but i would both the language of this court and european language the district court focused on did the invocation of the criminal process prejudice them subsequently because that's the whole point that's why you can follow suit and they may even have to you know pay some feet in it but you wouldn't have wager arbitration right under it the mere fact of that process so we would continue  kind of unusual context because you don't have the classic controlling law change where that's the supreme court ruled something different that you would come back and say but you do have a clarification in the law this court relied on if you will and you do have a controlling all change in texas that my client still operates under if you will be the texas based people have to live under what this texas supreme court did in cash because this quote relied on the dissent and also the court of appeals case so you do at least have that part of it which is the law of this court relied on when it looked to other courts has changed and finally you have the unfair in justice which is this court's opinion in vine was not precedents not published so really only can be side in the context waiver that the waiver must only apply in the class action context as this court knows you can't have a class action arbitration let the parties pleasantly agree to it this contained a waiver of it that was in error and therefore we continue even if we waive their right to  itrate we didn't wave our right to not have a class action in court three quick arguments that elucidate this st the black box language which is in our the appendix of the contracts actually is entitled  waiver or waiver of jury trial and arbitration provision so you have the duality of both talking about litigation and arbitration when you actually get to the specific waiver language it talks about a waiver of class action litigation and class quite arbitration those are two different concepts the district court felt well this is in the observation provision so it must mean arbitration but that would by necessity eliminate render useless the class action litigation waiver finally rd if you read the entire provision it contains both litigation and we would contend arbitration language and therefore applies based on its face to both finally if you actually read the entire agreement you'll see there is an ability for a particular customer to opt out of the alteration provision by writing a letter to our address in opting out therefore this agreement evidences an intent not just to deal with arbitrations but the possibility one person may wind up in court ringback and it's pretty clear we would suggest in the language that you grimace ways and tries very hard to ensure that there won't be any class actions whether in arbitration or whether in court think about it from this common sense perspective what party would waive class action arbitration but leave open the possibility of class x in litigation and therefore we think that from a substance standpoint even if we waive the right to be in arb filing criminal proceedings we did not waive the contractual right that these plaintiffs can't serve as class representatives and the class members that the court certified can't serve as class members we would waive the right for all of them to sue us individually but not as a class finally rd turning to the class action sort of occasion we think the court made two errors st the court certified did not certify fraud claims except in the following context you pos made a misrepresentation to the da that these were not post dated checks in the form you submitted the work was check out the david and that is a misrepresentation these players can sue  you st probably raised was well it wasn't to the plaintiff foresights person young the pacific life the old two thousand and one texas supreme court case in the auditor context who should dealt with the issue of can you make a representation to someone and a rd party so you want to supreme court say you can but the representation has to get to the plaintiff ultimately and they have to prove that you the defendant specifically intended it to get to them and that they rely on it now  this context unfortunately that is either not there is an element in they've not proven that or it is an endless individual inquiry because we'll have to show for each class member that they got the worthless check out the david know by the way what we know about the plaintiffs since we have their letters is the da would send the letter with the worthless check out the day so that they'd have to show the happenings case but that's not the end of it they'd have to show each plaintiff a class member that not the d a s letter but on the worthless check after david to write a check and paid with out that specific inquiry you can not meet the test of ernst and young and that is a the ultimate contend that's vastly different because in the torah's case you are proving causation through reliance and you're talking about a pyramid scheme where the theory is no one would join a pyramid scheme if they didn't think it would make money if they were told this pyramid scheme is a loser for you they wouldn't join but that's proving causation arson young require something different or texas law which is individual reliance not that you can infer and if you actually look at pacific the erson young for specific case they tried that route can we presume reliance they submitted affidavits from industry experts saying everyone relies on audit reports that's the point of them auditors no bond holders potential investors get out reports to rely on them and the texas supreme court in that case and affirming it in ram or in ten years later in a similar case said that's  great but foreseeability is not the issue and a rd party representation jurek intent to rely you have to show we knew and intended the worthless check out the david to get to the point if and at the plaintiff would do something on that becton that this court is without jurors to action to review a case on the merits with a noticeable appeal is not on the file the issue in this case is whether the notice of appeal related to arbitration was timely filed in this case there is not one not two but three motions for reconsideration this is an appeal of the rd motion for reconsideration they can call it whatever they want the nd motion for reconsideration and say it was a status conference but it is very clear based on the record and based on the filings that they made in the district court that they filed a reconsideration after the cash this decision came out in fact their motion states quote the this court to reconsider its prior rulings in this case another quote the court should reconsider its prior order denying defendants motion to compel arbitration flatly in their prayer pos asked  respectfully request the court reconsider its or denying defendants motion to compel arbitration they had a nd bite at this apple and made a motion for reconsideration after tash this came out at an oral hearing the court made a ruling deciding that it was going to deny the nd motion for reconsideration because the law in this case is governed by the th circuit this court's decision in peel is not by the state court's decision they had th days from that date to file an appeal and they did they sat on their hands and within those thirty days did they then move to reconsider they did within the thirty days the rd motion correct no absolutely not around the time when you say then you wouldn't say there are time barred correct well if they're appealing from an adverse ruling as to a different evidentiary early go predicament that the rd motion described to the court is if it were different and i'm trying to get some clarification from what you're saying are you saying that if there was a separate ground between the nd reconsideration and the derby consideration i would argue that st of all there was no separate ground you know but secondly if there was some sort of nd separate ground then i could understand why they would file a motion for reconsideration but they did not move for a rd reconsideration on a separate ground they moved for their reconsideration on the exact same ground that the move for the nd reconsideration in fact they moved forward on the exact same ground that they moved for the st reconsideration there is a very important point that keeps coming up and they chose their reply and they chose their argument to make this in fact it was bald uncapitalized in their reply plain as do not dispute that they made false allegations to the district court in this court or that the arbitration or in fine one are predicated on the truth of these false allegations that is simply not true the argument that there is some sort of new evidence or the argument that we claimed they argument and i would invite them when they come up here to cite any part of the record in which we say that any part of this court's decision or the trial court's decision was based on our allegation that they criminally prosecute people when you look at our complaint your hon and twenty three in the record you know i was in the dissent of course course but but i thought that the majority and i did go back and look at it did say that they were defending against malicious prosecution no they were defending against because they threatened borrowers with criminal action and they wrongfully initiated criminal proceedings that had nothing to do with the malicious prosecution that had something to do with them initiating the criminal pretty back and we can't really get it because it is law the case but but now we know there would never was an initiated criminal proceeding the most there was was the letter that says if you don't pay in ten dollars days we're going to get a look or and that maybe we're going to or going to argue this again ok no i can't argue it you're you you won that before so so in your view if we don't find that it's time barred with their only relief to get out of the duality predicament he's described that they're operating in texas where it's not as expansive but they in federal court on diversity they would be would be to go to our full court is that the is that that we don't have authority to rest to deviate from law the case respectful that true is respectfully your honor the law of this case they can cite kashmir's all they want is a similar case there is an identical case and that's the law of this case this case this court already decided that they substantially involved the judicial process not there are no new allegations there are no new facts the only thing that happened that they claim is that the m prosecution claim was dismissed but that's because it had a two year stint statute of limitations and that's because the facts don't support that cause of action all of our dismissals the record reflects there were dismissals of prosecutions i think they were never even an issue we're talking about important point that needs to be made you know the named plaintiffs weren't but we know the name claims weren't for a very important reason they paid the loan and they paid the fines and fees how would they be typical then of others well they would be typical of others because they were forced to pay fines and fees if you were prosecuted you would then be forced to pay the fines and fees it's the exact same fines and fees that you would pay whether you prosecuted or whether you're not prosecuted but there's something that's very important about this and that is there is nothing in the record that points to the fact that we that the decision in vine in this court case and the decision of the trial court is based on the fact that there are allegations of criminal prosecution it's based on the fact that they are and they initiated criminal prosecution and that's the reason why the decision was made now back to the issue related to the appeal one of the questions the court was whether or not the nd or rd reconsideration was was reconsideration was filed so that as well went outside the thirty day window so the issue in this case was decided by this court in charles vs new england independent school district and that is we have squarely  check of the davids here vine pond would have borne the costs of defending against any theft by check prosecution right and that if there were no prosecution but that's bearing the cost that's that's looking at pressures were like right the nd issue the nd issue would be whether or not they suffer prejudice yes that that was not the decision based on whether or not there was waiver that was determining whether or not there was it was prejudiced and but speak to that if the facts of changed as to that while the facts had not changed because they still would have borne the costs they still would have had to go down to the district attorneys they would have had to miss time from work to go down to pay payments the record shows they one dollar of them paid payments and had to miss work to go down every couple of weeks to pay payments they are still bearing the cost of having to pay this off more importantly what's the best i asked him the same question what's the best case that that's prejudice to defending an arbitration well i think it's the answer that is the best case is the series of cases that hold that payment of fines is prejudice and that's that's important because they all paid fines and the case law is very clear from this court in from other courts that the payment of fines can be prejudice and that's exactly what we have in this case no matter prosecution or not they all paid fines they would not had to  if they didn't go to the criminal courts instead of going to arbitration which the arbitration clause requires so those are the most important cases that are cited in my brief which is there is absolutely prejudice as a matter of law because they all paid fines and fees that they would normally have had to pay is no doubt in the record b l s isn't reimbursing them those cause you know as a matter of fact i cited directly to deposition testimony in which after they realized what they had done they started mailing checks to people and one of my clients did not get a check the other one got but only for the loan amount not for the amount of the fines and the fees and she testified very clearly and it's part of the record that she paid the fines and fees and they were not reimbursed so there dispute that all of the people in fact the collin county district attorney laid out a list of people including all of them paid fines and fees anywhere between one thousand two hundred and twenty dollars and so maybe on the l because they knew what they did was wrong they refunded the loan after i filed this lawsuit and so after i filed this lawsuit they then started mailing people back the loan amount which is not in dispute i wasn't sure why they did that because  tired for that right i never asked for that stop part of this lawsuit i think they did it to try to appear to be good people and i think they probably did it because they recognize what they did was wrong they should have done it and so when they took the depositions they were very proud of the fact we mailed you back this there it is a small case but this is exactly the kind of case that class action is built for there we all read articles about people who've used the class action system and i understand that that exists  responded the argument about the reliance that aren't in young argument about reliance and its impact on the climb well that's important your honor because the record shows that it is impossible for them to say what they said here today which is we didn't know that the borrowers were relying on our misrepresentations and are fraudulent lies for lack of a better term to the district attorney because what happened was and you can see from the record that when when they've submitted these false affidavits they were then stopped they start to get paid back the loans and so they were paid back these loans over a two year period and so it's not as if the district attorney showed up one day and said here's a check you know everything's good and they they thought to themselves oh i didn't know that they were relying on my false affidavits as the district attorney's mailing out the letters that they knew were going to be set because it says in the worthless have a david we are going to collect this money for you the borrowers are then paying back to the district attorney who's been giving the money to pos and p l s is taking money in through this two year process so it's impossible under the earth some young standard in the tourist standard to say that they had no understanding as to the reliance because the reliance was an ongoing process that started from the day they filed the out to david's for two years if not longer maybe even still going on so your honor under the ernst and young student standard they knew it was going to get to the plaintive that's the st problem because the at the davids that their employees signed said we're going to collect this money from you we're going to probably criminally prosecute we're certainly going to send out information that says we're going to criminally prosecute you and they also specifically intended that it get to the plaintiff because it's some sort of it doesn't really make any sense if they went to the district attorney's office to collect these lower and they said these guys committed false they submitted false checks when they knew that they didn't and they wanted to get their loan back it's impossible for them to stand up and say that they didn't intend for that to get to the point that was the only way they were going to get their loan back because if this information got to the plaintiff and that's exactly what happened but back to your question your honor we know they got to him and we know that they know because this was an ongoing process in which they were paid over time so the next issue your honor is whether or not a class action waiver applied before you move on from that if you have any case or cases that stand for the proposition that reliance where court has held a fraud case that reliance is can be reliance can be based classified on circumstantial evidence such as what you're describing i mean you're making an assumption that they acted upon information you know it's not an  respectfully it's not an assumption we know that that's the fact because it's impossible for them not to know it because they signed an affidavit saying it was going to happen that that is not an assumption they knew it was going to happen because affidavit specifically states we are going to go to the borrowers and we're going to collect this money for you so it's not an assumption but to answer your question or honor both the tourists and the erson young case stand for the proposition and i don't know if they were class cases city if you question the class quite basis i don't know but i do know that both of those cases stand for the proposition that as long as they had some intent that it get to the borrower to the pla there can be reliance and they can be held responsible for that reliance so those are the cases that i would rely on additionally the district court when it was transferred the district court relied on the exact same cases and a few other cases to stand for that proposition so the next issue that needs to be addressed is class action waiver the class action waiver as the court is aware is part of the arbitration clause they drafted a seven page loan documents they put in the provisions they wanted to put in single spaced many different provisions the only class action waiver is located with in the arbitration provision in fact one of them has a box where it says this is the arbitration provision in the only class action waiver is located within that arbitration provision so we know based on the cases including meyer in re rivers and in fact the cash this case  where they all said if the arbitration clause is waived the class actions weight this court has already held that the arbitration clause was waived therefore the class action waivers waived and that is the analysis of the district court use and the district court in our opinion did not of use this discretion in in ruling that the class action waiver was waives especially in light of this court's decision in the st appeal well finally your honor the borrow satisfy rule twenty three a and b three the standard that they want to applies the berger standard but that's not the standard that applies who are into this court in negative value cases in negative value cases as in re heartland payment systems analyze all the cases within this district and held that berger's generic standard has not been applied with his circle outside of the security context although some district courts in the circuit have extended it beyond the security cases courts have not extended the burger requirements to a negative value consumer class action such as this case as stated before this is exactly the kind of case that a class action lawsuit is intended for there are many plaintiffs we know the plaintiffs we can identify them they all have very similar damages identical facts identical scenarios there is there is not much difference in between them maybe twenty dollars here or forty dollars there and all of that can be determined with simple calculation there is nothing within the burger standard that requires that  case like this be determined as to whether or not they know about the case or actively involved in the case and they clearly testified that they know enough about the case and want to get engaged in the case even if the berger standard applies the class representatives but before my time is up i would like to reiterate a couple of points and that is this is the nd appeal from an identical decision that this court decided casque is to not change the law in this court it didn't change federal law it didn't change the law that set forth by this court in the your dissent in the opinion that was issued this land is that the case that was issued in the vine versus p l s the st time we asked this court to uphold that law more importantly we asked this court to look at the issue of whether or not somebody can file a rd reconsideration well outside the time frame and then appeal that if this court allows that to go forward this court is going to have even more cases than it already ha the and i will end on the charles versus new england school district case which this court decided we have squarely held that when an appellate files a nd motion of reconsideration based on a substantially the same grounds as urged in the early a motion the filing of the nd motion does not interrupt the time for appeal and the appeal must be dismissed this case the only issue that should be decided by this court is the class action and whether the  discretion we believe the only reason why we are up here is because they want to take another shot at the arbitration in fact the class action issue is basically an afterthought in their briefs this case should not be litigated it should not be read decided the case that was decided by this court should be upheld and we asked this court to affirm that may please the court st let me address the waiver issue to address your honor specific question the district court of the other western district of texas judge martinez issued an order requiring a status update on april th two thousand eighteen to address cash is only the parties found status updates not motions on april th two thousand and eighteen at a routine status conference judge martinez typically holds as a docket call on may th two thousand eighteen he said he probably wouldn't take any action on their status updates and question why the case was in his court since all the putative plaintiffs class members appear to be in collin county he then that the next day issued a show cause order required because the court recognized this might have some impact rd the court disavowed ruling in jurisdiction on the case and instead said i should transfer this case even so we do raise new issues which is to change facts which was not part of the status update and the unfairness clearly erroneous standard of the law of the case so those are new grounds raised in a nd motion to reconsider i know it seems like we're continually coming back but this is unusual you know you had these two competing cases you had the texas supreme court issue a ruling you had this court's ruling and you had a summary judgment process what everyone was wrong on facts as alleged and therefore we think not only are we timely  zant believes based on his class definition there's maybe about eighty class members total on it the problem is is that we don't really dispute the fees part would be easy and that would not block certification but it page thirty brief the plaintiffs say they're also seeking fraud slash punitive damages and even they admit it page thirty seven dollars that would be an individual inquiry now we don't know what those fraud damages are whether that's loss of employment or a credit score they seem to disavow it judgment that simply district court set aside and said we'll all just have individual trials for damages but obviously practically speaking you can't have eighty individual trials on the issue of damages and therefore we  the damages issue precludes certification of the typically damages doesn't block you in this case we think it would because of the individual nature next to the issue of prejudice which you're on to raise two things st i will cite the court two cases and they were in our brief they were also in the district court the original just reports memorandum opinion st is nicholas versus k b r and the other is wilson the baker and nicholas the quote that the district court relied on is prejudice in the context of arbitration waiver refers to delay expense and damage to a party's legal position will soon the district court cites picks it up and says one way you can be prejudiced is the issue of issue preclusion many a lost in the criminal case got convicted and now you're impaired when they want to go arbitrate against you on it and then at page nineteen of the district court's memorandum opinion he the court relies on that and says the plaintiff's legal position would be compromised in a civil action if plaintiffs were convicted by theft of check because the standard of proof in a criminal case they would not be able to defend in the arbitration that turned out not to be correct not accuracy didn't happen because there were no criminal convictions to it and that's the prejudice the cases speak of this court then picked that up when it affirmed it and relied on the same potential injury that might happen to them there's no doubt if we if they had been criminally prosecuted and had lost in a criminal case there would have been prejudice but the fact that the da sent a letter and they pay even if they're specially fees attached to it does not impair the legal defenses and a subsequent arbitration which you preclusion no fees or cost that they expended in defending that they now have to redo so that's a key issue on it and people in mind obviously to to have a waiver you have to both in and or there has to be prejudice either one of those is it so finally if that at the very end i'll just leave the court with this this is not a referendum on the payday lending business more on the collection practices we did refund their money which we