the next case we'll hear is blake versus chasing morgan chase number eighteen dash twenty one twenty three sixty thank you at issue in this appeal is whether american pie polling extends to appellants class claims which had been timely circuit in a prior class action that never reached its determination of class or  even try to get into american i totally claiming that your sam case was quote finally filed even though a judge has said there were time you know it had a different theory of lights timely right which was never considered and which was still supported by these allegations of the complaint you samples were the same we had so that was an argument on dismissal that was never presented or considered in by the sam court which is one of the reasons that the appellant's here determined that they had grass control of their action and take it take actually accepted as well as a basis for saying that the claims had been timely asserted as to famous from which facts were accepted within one year before only is based on statutory language respa and section eight even if we say we accept your view that it's the separate crowell language just across it is the right language to use and that we were to find the district court judges into petition the statute would support that for the purpose of this question and that a theory for those claims being a time when as to claim as to payments which were made within one year of the filing of sam is that they they need american pie tony based on that i mean that's a train separately accruing wrong giving up to today you said they didn't can continue in the year before the complaint you have you have enough separately occurring wrongs to get you up to the date of the samp complaint yet and so you want to add never considered the separate of cool which if it applies to the statutory claim applies no matter if it applies and that's why the dismissal decision that was made in samp should not act to bar talking about is one occurrence of a violation a payment that was made within one year of the firing of sound all payments that were made within one year of the of the filing example because the statutory language is no person s action proceeding it isn't it did not discuss an action that had ended as a result of the dismissal it actually said successive and you read successive to mean serial but successive could be filed any time after the first case was fired follow on cases that could be the same that the court and would that be more consistent with the sort of the whole thrust of the opinion i don't i don't know that i agree with that you are because i think that what the court was looking at is that people who are continually try do to a class and then i get that class was over and started another one and again the class was the class propriety class action was considered again and if if you're going to rely on a class action to  pursue your claims it makes no sense to under merican pipe and it doesn't serve the purposes of american pipe to allow a person to again relay to cape whether a class is a proper and appropriate way to proceed  claims because that's already been determined and it doesn't make sense procedurally to let that procedural issue continue to go on and on and on but under the rule you'd like us to apply and that's exactly what you would want done you did we weren't happy with happened in the class action or the class action sam you have a view about whether it was still pending will talk about what was and legal authorities say something is still pending when it's on appeal but then filed this action monday saying things don't go well today and you get a feeling like maybe we should file somewhere else are you going to go to that next judicial district and say well we should get we should get tolling from all the way back in st and it would just go on and on and on is what and what was the concern and one of the planning i think that it was the  city of suits that's against the policy of american pipe and of course you know that's that's not what's going to happen because we can see from what has happened in the second circuit in the fifth circuit where they are adopting this rule that we are no china agra tech that will and the will that they were saying look it's workable that will does distinguish between a dismissal and a class determination wherein all three of the motivations behind her a opinion inflamed here and that that is that to encourage prompt filing and to allow a district court to select the best class representative doesn't matter whether we're talking about the the endless tolling and what happens when i'm as here there seem to be extensions in extensions of the statute of limitations  a class action speculator consumer class action and the quick and the play of at the same point says well i don't want to i can't be the be plaintiff i don't have the where with all of this this is a small consumer claim i don't know how to get representation and i'm i'm satisfied that i will be i will be diligent all watch this i'll see what's happening and if it does if i determine that there's a reason that the adequacy of the current representative or the way that they're prosecuting the case makes no no sense that's when i'll jump in because i know i can because american pipe is still has saved my my claim to to rule the other way is to say every time a class claim is is filed and you know about it and even if it's a small consumer claim and even if it has a very those who think they do have the wherewithal to be a class representative to step forward quickly so that they can be selected and that the district court has before it all those potential of these as you're presented have to make a decision but what about a plaintiff who doesn't think they have the wherewithal that doesn't think they have the ability and doesn't see as practical for the type of claim they have and they are unwilling to rely on on the fact that their claims are being protected and pursued until it comes to a point just like the person who files perhaps when classification motion is pending where they say wait my claims in the claims of other people like me are going to be lost and i don't think i need to step forward now they preserve the ability to go forward individually right they have that from the american right that what they don't have rules distinguish between dismissals and denial certification is saying this is a workable will that we're adopting because it to to require plaintiffs to jump in to ensure that the question mechanism remains available to them and is not you know this rated by a dismissal order that may have no application to a particular plaintiff is to deny those people the opportunity to rely on the very mechanism and the economies and efficiencies that class as they tried to argue it for the court trying to frame the question broadly and the court in reframing the question did it in a much narrower way limiting what it said it was going to address to denial  piggyback on an earlier time we class action the court said it's precedents do not so much hand it here american pie polling extends to otherwise time barred class claims so when it came down to writing the holding the supreme court reached beyond i think the class certification context and that's what the first circuit said in the select pharmaceutical marketing sales practices case that we submitted on a twenty eight a letter they recognized her circuit said that the the actual holding is broader than the question as it was initially framed and i think that is compelled also by the policies and then principles done by the court the endless tolling issue the incentive to file early i think on this point it's important with my friend on the other side talk about the multiplicity actions that the court encouraged the court was encouraging a multiplicity only in the sense of having as many timely filed class actions as possible and that that's clear from page eighteen eleven of the opinion where the court said its rule would quote help you to if class representatives to file suit well within the limitation period and seek certification promptly so that's what they wanted right away lots of class actions and then the courts could it could pick and choose legal back  i think also just a sort of my or her concurrence was the whole concurrence is about this draft of the majority opinion and she quite clearly says china china agra tech as a quote blanket no tolling of class claims ever rule and that that was self practicing case was not a sat class certification ruling that was a case where the prior action had been dismissed and the voluntarily dismissed and its first circuit expressly noted that quote there was no substantive ruling on class certification but the court would defer circuit went on to apply china agra tech because it said not to do so would allow it would create this endless tolling problem a chain or withdraw a class action suits to extend the limitation period forever you know quite a broad opinion and i think and she uses the word broad several times and the first circuit picked up on that and said this is a broad opinion and i do think that it but i don't want to don't want to dress rest on the wooden language of the holding i don't want to say that you i  think the policies really enemy that i mean under plagiarists theory they would have been allowed to go from samp which was dismissed in may two thousand and thirteen a six months later in this circuit with their with the new case and that was a you know that created under their theory is as should short point out they would be able to proceed from florida to new york or wherever there could be quite a series of endless tolling regardless of whether the samp court had reached the certification question or not the fact that the sam court dismissed twelve b six it rather than a rather than reach in class or occasion in no way eliminates this problem of animals tolling when you have a stale case the first motion is going to be it will be six limitation period incentivizing as many early class actions as possible i think this is shown here because if you're if if if the would be second or third or fourth faster present it is can wait and see what is happening in the first case they will not be incentivized to file early the way the china average check bars because they have no benefit of tolling because the current plaintiffs are time barred correct i mean the plaintiffs have said both to the district court ends of the and to this court that their claim depends on china agra tack and you know you heard that in the first argument they actually percent down payment or is it correct some period of time correct then you can and so you can pay off early people who make who pay off the principal enough of the principal to get above twenty or twenty two and a half sometimes it depends but say twenty they they  would they would stop paying private mortgage insurance early in the loan and so one of the anomalies of the separate accrual rule is it would afford a shorter limitations period to someone who paid off the lump sum of the princip early and usually that's a good thing and those people go would get the penalty or the the the down the downside of not having as long a special limitations which seems odd that congress would have wanted such a result because others of people  except the pursuant to the agreement is an attendant circumstance doesn't have to be at the same time could've been earlier but if congress put this in the present tense the action ordinarily runs problem that from  principal get up to twenty percent you know in the first year and then you lose all future payments the thing you knew you had the exchange was i will give the referral will go to the private mortgage insurer and the allegation anyway this is all lads are on every month as a result of the agreement but the kickbacks are continuing or will then then why are we really talking about a penalty or different statute of limitations for some some who are worse than others all we're talking about is whether there was in fact back within a year from the clinton well we don't think that that the payment each payment is is the right point to use for violation we don't think that's the the right focused we think leaf the thing of value which the point can stress a very broad very broad phrase the thing of value is the right to reinsure which led to the stream of payments that came out over time would not be the kinds of illegal peanuts no because i think evacuees there's an implicit renewal every month the person knows if i don't paint this payment that my mind my business will be burned down not because move the conversation we had ten years ago but because i think an organized crime is still there but can someone pull out of this private mortgage insurance arrangement after they first entered seeing a son i'm going to do something different or get my own independent insurance it's it i time i'm paying joel then you're in default so this is being held over the person's head you have to keep paying on this or get a substitute each month i don't think that i don't think that is i don't think there's situations are comparable because in the in the rest of the contacts that there was a closing there was an agreement the parties are no longer in contact or communication the more the private mortgage insurance collects from the service or the service or is the agency that's in charge that's in contact with the b and cheap to say that each kickback creates a separate violation creates all sorts of anomalous situations because this is a criminal statute too and there's a one year criminal one year imprisonment and ten thousand dollars fine per violation in the statute if the separate accrual role because i think in applying separate accrual which is not mentioned in the statute not you know there's to do and it's i know there's confusion between consuming violations equitable separate accrual all of this you know congress wrote a statute which created a one year limit for arrest for the kinds of violations here there are three year limits for actions by attorneys general by bureau other parts of the disclosure part of the statute and so when congress created a deliberately short period of time here and i think there are i think we're centrally rewriting it as we say there are going to be a thirty year mortgage the person maybe bar made me paying for ten years there are maybe paying private mortgage insurance for ten years that there are ten years ten years worth of violations the questions about evidence being lost or witnesses being unable to be located those all come into play and so i think that deliberate choice of a one year statute of limitations by congress a program your interpretation would would mean that if the closing of the settlement was structured in such a way that payments didn't begin until a year and a day that there would be no rule would have the benefit of of not worrying about the payments your have when your statute of limitations right but i agreed we agreed a closing that i would have this right that's a thing of value the point is point out and in their right and page going twenty one of their reply everything of value a broad term clearly encompass the right to receive the right to reinsure private mortgage does but it doesn't exclude the actual payments as themselves fees or kickbacks which themselves are actionable for you that is that's true except i do think that cause calling it combining and calling each actual payment a separate violation leads to all sorts of anomalous results for example a judge processes exam and judge causes case what if the private mortgage insurance or do so an accounting breakdown never transfers the portion to the reinsurer and or that there's just or an embezzler at the private mortgage insure tapes the money and never gives it to the reinsurer that would mean that they're w for such settlement service and there would be there there would then been no remedy because you're not looking to the payments where you would you would have it at the time of closing or actually given you do no pro forma  but i do think that all of these hypos are very are illuminating but ultimately you represent only show that some of the downfalls some of the anomalies of reading the statute to say that each payment is a separate violation so i'd urge the court to avoid that result and thank you that go along with this scheme that you would and your and the statute is clear you can accept a kickback or any other thing of value so it may be true that you explain you accept the opportunity you that's a violation by when you accept a payment from which you can you accept a kickback from a payment that is who is part of an agreement to refocus nest mortgage insurance business that's under the plain language of the statute this is exactly what the statute is meant to hover is meant to stop kept back and if you look at freeman versus quicken loans the supreme court's decision interpret in section two of seven b you'll see that the court took a very specific language oriented which  sham reinsurance payment which was the kickback which was paid for by a monthly p m i payment that is another occurrence of something that the statute says you are not allowed to do and that so  doesn't write the statue of limitations out of existence instead it says well what's the structure of the deal that we're looking at here what are you telling me that you think is wrong or will this deal in this case the defense structure is such that they would get a kickback every month pursuant to this cream until the twenty percent to tell the pm i stopped but that was their choice and they structured it that way that's not binding the statute out of existence that's applying it directly as the statute was written on the china agriculture issue can ask you to respond to your friend observation that your position looks like just a sort of my yours position which is not majority position i would say the just the sort of my you were actually when she was expressing what her concerns were and you look at the opinion that supreme court community eight eighteen fourteen is why is a class or occasion decision being denied what was the basis or was it the basis because of you know the question i presented was inadequate adequate had a question presented didn't have standing but perhaps the claims were still appropriate for class treatment and so she determination has abrogated yang but this discussion the decision of the supreme court never talks about exercise and it sets up the question as after a denial of class certification and the consequences expanding and extending that rule to any sort of ending of any class any claim that was ever found as a class action to a poor close every other person who was part of that initial punitive class who may not have that  their cases never been determined to be unsuitable for class treatment and there is no merit to adopting a rule that the supreme court did not articulate and it certainly could have that we deny accounts the ability to continue to pursue or timely asserted claims on a class basis