those aren't my words those are the words of the ninth circuit in the case of an re equities and a high versus lincoln plus development twenty two f thirty nine fifty four and ninth circuit nine hundred ninety four case what has happened here is that my claim was deprived of a hearing it was deprived of the opportunity to take discovery in order to develop their response to  over the life of the policy they had the information that disputes claim involved the exact type of policy that your client head don't the just i think in the hypothetical where there were prior representations being made to a client and then there's the class action filed and the settlement and there's no ongoing f communications between the defendant and any member of the class was not the name plaintiff but a putative class member i would i would agree in this case however there were ongoing communications between the insurance company which is a much superior position than my client was with respect to the policy terms whether distal premiums were required or not required i think the problem here is because we're sort of equitable stoppel that the issue is whether a our client actually knew or was dissuaded from pursuing a claim so let's assume that our client was informed that your policy actually is implicated by the split settlement and you may well be entitled to pursue a client and then the company comes forward just waives the client and essentially that there was a communication from lincoln advising that there was this new dividend policy that was going in place that was going to potentially alter the policy which is something that had never been received before and so up until this time his only information was that there was no it just in all premiums that would be required here in february of ninety eight there was also read that paragraph and i and i during the course of the litigation and subsequent to it as to whether our client should participate or not participate opt out or participate in the claims analysis program they did they did neither of those and my client says the reason they did that is a there were ongoing communications that indicated to them that the policy was not really implicated was not a problem that they had no damage because they had paid up and there were no just  well i believe that the letter from kathy sastra does because even though she gives some type of projection at the point she's sending that she at least the company knows that this policy is implicated in th coverage of three million which is what your client says he was told from the beginning and it says you either got to pay money now or at least in five years you've got to pay a premium which is contrary to representation that your client says midwest received so how can that possibly be a reassuring letter well her letter says and i think that faced as the good news is your policy is fine essentially our client read the letter it and that's what it says good news your policy is fine the problem we have here is we asked to take discovery so we could develop what actually was said and this was these are memories  parties that are in business that may not have all the facts themselves and when where is there not that opportunities are evidence your client is given any kind of oral communication or after  million dollars guaranteed no matter what happens over the life the possible but that was one of the reasons we had asked to take limited discovery so we could pose and determine what communications had occurred because just because you don't normally get will spark his recollection that he relied on something i mean that kind of to me pulls the rug out from under the reliance on equitable snapple just by virtue of this construct so if your client can't think of anything d i don't i don't believe so i think it would be normal discovery in any type of a lawsuit to help develop facts  opportunity for discovery and respect i don't think that there is any such a general rule in fact i think in the context of essentially forcing anti litigation and real litigation injunctions that are part of class action settlements such a rule would would absolutely undercut the very purpose of such injunctions that is if a defendant who have bought a piece of mine have entered into a settlement and get in return an anti litigation injunction if they were put your honor in fact i think they would be on very dangerous grounds in doing such a thing in fact might even expose themselves to additional claims when we remember that when there's notice given of a class action that's something that's usually very heavily negotiated it something that the court itself is involved in and it approves that the the class action be explained in a certain way so that no one miss characterizes it so that parties understand exactly what their rights are once the court has approved such notice and it's given not once but twice for defendants to then in public collateral communications or communications that they may have as part of an ongoing relationship that exists for them to then purport to discus they got the very full and complete notice multiple times that was actually sent by the court indeed and usually those notices actually have some restrictions on communication with class members in the representation class representative i think that that is really a complete red herring here there is no reason to believe that the midwest bridge plaintiffs were in any way differently situated from the great of the class it was not a requirement for getting any relief that was provided for under the settlement and i suspect that in the normal case just because of the timing it may be that most class members policies have not actually gone under water but they were holding a valid claim which is that they were they have a policy that did not conform to what it was represented to them it would contain and they were entitled at that point to go in through this administrative just or this alternate to just be recognised resolution process the sort of streamlined claims process to come in and say this is what i was promised this is what the policy is there's no match in the as it was as was explained in the notice of the settlement the remedy for that was to have the policy reform so precisely what the plaintiffs are asking for now they were entitled to then so they were not differently situated it's not in any way analogous to the situation where you have you know late in the specs those injuries and so some claimants are out there who are not even known or misleading in that sense i simply don't see how the any reasonable reader of the facts could reach that conclusion when it specifically spells out the contingent nature of the policy in other words it may have referred to good news but that that statement really doesn't have any meaning unless there's a possibility of bad news i mean that statement carries with it what is really set forth in numerous ways is the district court pointed out which is the premise that this is a policy that's contingent on interest rate behavior in the market here's a projection based upon rates as they are then it says you know this could change depending upon the rates so how anyone could read that and conclude that that was some kind of a statement that these these policies are you know your policies are somehow guaranteed or somehow not susceptible to interest rate fluctuations  i just don't see how any reasonable reader of that could reach that conclusion and it's never really specifically alleged anywhere if you carefully read the allegations that indeed that was an inference that somebody drew from that that particular communication and that is indeed the closest thing we have to do anything amounting to any kind of post settlement misrepresentation that would give rise to some sort of an independence basis for a new an independent wrong and if you look at the other three other things yes there were is that there was an ongoing relationship by virtue of this policy there was a communication from lincoln life about how it had acquired the signal policy there was a communication dividends which didn't really speak it off of this question of interest rate contingency so i think what's happening is the place to sort of shop throwing up this shaft you know there's talking about things that happens communications that occurred because of this ongoing relationship but now where are they really identifying any kind of actual independent harm something different from the harm that was the harmony issue in the spitz litigation and  even more than that now where they even identified any repetition really of the the pre settlement misrepresentations much less a new and different misrepresentation giving rise to a new and different harm and actually is in the class action had talked about are the basis of their allegations was a tie in of credit cards to debit cards and how that had caused merchants to pay a higher rate of interest or higher interest rates to the credit card banks and then some of those class members filed another litigation in which instead of this sort of tying of the credit cards to debit cards they were relying on somewhat different facts if you just have to do with this notion of a price fixing conspiracy rather than the time of credit card cards so the facts were slightly different the theories under any trustees were different of course it doesn't matter the basic harm is that the merchants got charged higher rates by the banks a higher interchange rate and the fact that the robin is the same different from the claim based upon the misleading that happened that was settled in the class action i'm argument here is that no because the harm would be the same even if you even if there were a misrepresentation that you could find somewhere in the record or that somebody could put in an oral declaration or a declaration based upon their memory without a document even if there were such a thing we still wouldn't have any new an independent harm other than the fact that they were simply holding the policy which doesn't have the or doesn't operate in the way that they were represented to believe it would operate and so you would still have no new independent misrepresentation claim based upon that but i don't think you have to get there in the sense that i are two points one is i think what we're talking about here is this i'm trying to articulate is a question of due process we have a situation where a client has made certain allegations of continuing course of conduct of guarantees and so on and was i believe denied the appropriate procedural and substance safeguards of the summary judgment proceeding which requires the moving party to put forth the statement of material facts from disputed allows responding party once they receive the motion to make an application to take some discovery if none has been allowed so far and respond in that fashion and i believe that should have been apply here and so it's a due process problem the second point is the one of damage the way this settlement worked was that if you wanted to pursue a fraud claim you had to present sufficient factual basis so that it could be evaluated here my client had no indication and had no idea that six years later he with they were going to get up with a half a million dollar premium payment that was due and i think we should have the option to develop that before it was s