yes your honor thank you may please the court joshua lipschitz of lifts a miller on behalf of appellant jeremy sawyer i request to reserve three minutes for about all the lower court failed shareholders not once but twice that nikki didn't even file papers to oppose or appeal to create such a personalized requirement for appellant to explain delay is to confuse a derivative action representative plaintiff the real party in interest with an individual plaintiff wishing to proceed with a personal claim whether or not one of the thousands of shareholders of of lending club besides appellant would have responded to notice that a derivative action was being dismissed without any sel we will never know the pelleas participated and benefited from a violation of twenty three point one c the court approval and mandatory notice rule and have shifted the focus to what appellant could have should have or didn't know but didn't judge alsop agree with you the twenty three point one c was not complied with and then allow motion to intervene the court  right and permissive and intervention simply because there was a fail there's a presumed reliance on the initial filed complaint we see that from when we look at canon and   for a derivative action that notice is required under those circumstances in order to dismiss the actual prior to dismissal so when the when when appellant was late and filing his motion to intervene it's only as a result of the lack of notice that was out there that should have been there pursuant to twenty three point where you didn't have any notice two lines and in  eighty eight dollars page form ten q which don't provide the nature of the claim it doesn't provide the statue of limitations and it doesn't provide for the allowance of a motion to intervene is there no idea about all this other litigation that was going on the appellant did not not a question or i'm just making an observation that the correct there was a lot of litigation over the london club yes there was well he was unaware of any dismissal there is a prison reliance that there litigation but it doesn't mean that he hasn't because that he's aware that the case was dismissed so we're dealing here with a layman a shareholder who's a layman when i dealing with attorneys we're dealing with someone who's unfamiliar with with litigation fact that there was no notice of the dismissal so he filed let me ask you this when you filed his case there was a motion to dismiss in that case right does yes you did your honor and he found it on time yes or no and he just beyond the statue of limitations i thought there were two there was a reason i can't keep thinking in my head that you voluntarily dismissed that case but i may be wrong we voluntarily dismissed the you knew something was going on in his court well at this point there we lost the there was a lot of water under the bridge in the sawyer action ok we obtained initial discovery of like over half a one million pages of discovery we entered into we held a mediation we actually not only did we hold a mediation we also coordinated with the delaware council to have that mediation in and the th circuit i'm sorry in in the northern district we also flew in we also flew in plaintiff's lawyer to participate in that mediation he was the only plaintive from all the plaintiffs from delaware from california he was the only plaintiff that actually attended  mediation so he was very involved he participated he did a lot of stuff and it was six months later that you know there were complaints that  they that he did not file his motion to intervene until later but there was nothing that happens instead nikki at that point in time because only a complaint was filed there was nothing that happened in delaware defendants were seeking to stay those actions throughout the whole time period from from the initial from the initiation of their filings defendants were seeking to stay those actions there were no oral arguments in those actions there was no motion to dismiss there was a motion to dismiss or stay but at each juncture in the delaware cases just sought to amend their complaints in fact they even amended the complaints during this appeal process so they weren't ahead and the the securities class action was it was white was about was getting closer to winding down when sawyer was was bush was pushing and that's usually when derivative actions pick up i mean  so were we were when we look at the three elements of what's required when it comes time for intervention the reason for the length of the delay is like the weakest link so once there's prejudice which there is there is a prejudice here we have a fourteen a claim that is the only claim that does not require any proof of fraud sampling and fraud ok and that is why it's understandably the delaware case was dismissed because that one sounded in florida it's a much higher higher standard and we recognize that there was prejudice when we did not when we weren't permitted to bring our fourteen a clane and why did notice requirements under twenty three point one see or excuse only one only under one of three limited circumstances one if the claim is dismissed on the merits after litigation two if the claim is deemed moot and three if absent shareholders will not be prejudiced how could the court determine whether or not the fourteen a claim is speculative if there was never any briefing on it that's not that's not for a motion that's not for a determination on a motion to intervene also there are cases and that's exactly why we also say the courts say that unless there is no prejudice that is the only time no prejudice that is the only time where we will not consider the motion to intervene here there's even even judge also realized or stated in the opinion there's a slight if at all prejudiced towards plaintiffs once you get once you mention that word slight th prejudice and there's no reason why we shouldn't be able to prove to continue or pursue that fourteen a claim and being allowed to intervene into into the action there were screw ups here your honor there were screw ups ok story shouldn't be this is sorrier and the shareholders should be the ones to pay for those screw ups that were done by the prior parties with respect to with respect  to the proceedings you know today you know to date there was no advancement of proceedings there was no there was no stage the cases were not in any huge you know further stance in the stage of proceedings that should have that should have weighed in on here to prevent mr sawyer from from intervening prejudice what was a legal prejudice any when we say prejudice it means prejudice as a result of the delay there was no prejudice here as a result of the delay nothing was found here that allow for president as a result of the delay so the delay the excuse of the reason for the lane that's like the lowest lowest thing on on on that had a hole here that's not that shouldn't be that should be counted in that's what the only only later on after after the statute has fired once he once he can't once he communicated with counsel then you file the lawsuit you knew that there was a statue of limitations  and you just hope it will go away hoping it will get resolved and we you know we entered into mediation we thought maybe we could figure it out we could work it out with with with defendants and that's why we pushed on and we did our work and we were continuing this so i just want make your position is you had when you file sawyer's case you didn't know about this case complains were disclosed in corporate filings by lending club in may of two thousand and sixteen so by the time he had even retained counsel and filed a complaint his section fourteen a claim which he says he's the adequate representative to litigate had already lapsed it lapsed by you know more than four months that point it was like you missed the statute by a day or two by about four months ok so that's sort of point one so he shows this complaint litigate with with with with defendants on that motion says it's not untimely i mean part of what was resolved together with the denial of the motion to intervene instead nicky right which is this case which he attempted to resuscitate when he realized he had a statute problem in sawyer he also litigated the statute issue in sawyer and those were resolved by a judge also on the same day they didn't appeal the denial result all of this all on the same day at the end of august of twenty eighteen i know these are a lot of dates but but but the punchline if you will is that mr shorter has gotten more than ample due process here well if your action is time barred which it looks like it is maybe there are some basis upon which you can intervene either as of right or by permission instead nikki notwithstanding the fact that state nikki had long since been dismissed in august of tw sixteen right and so then we turn to the issue that's actually before your honor's today it is this issue of whether or not under rule twenty four he was entitled as either as a matter of right or as a matter of permission right to intervene and the short answer the short answer there is judge also found appropriately right that he failed to move to intervene in a timely fashion now again whether you measure the timeliness as against the day that mr sixteen right when the statements were made that's really what's required that's when you're either you're on notice of either knowing or or sort of having reason to know that you have a cause of action here right no matter what if that should have prompted him to file his own laws that specific point however i mean look had he done so right had he realized i'm going to prosecute my rights back then as it as he was obliged to that's of course when he would have been folded into all the litigation that judge also referenced as having left the station and that counsel referenced before but even if you take it as of october th teen or november of two thousand and seventeen i mean the record is clear right appellants counsel was aware of the fact indicated that he was personally aware as of july of two thousand and seventeen right so it's completely inexplicable and i think judge also called the utterly unexplained it was a six i think right as to why it is that mr sawyer litigation so so so the notice he would have had at the time he showed up in october november two thousand and seventeen would have been twofold st of all his lawyers know ok so they could have felt right and we have that from mr miller's declarations that i just cited to you secondly the company did provide notice i mean we did file it in a tent q in november of two thousand and sixteen you know there's a statement about you know sort of pending litigation and the company indicated in the pending litigation section that the stat nikki action had been voluntarily dismissed months earlier right and i do think you know it's perfectly fair to charge him with that as well again the irony of course your being your honour's this is a he wants to a sort of section fourteen a claim that's based on statements in inconsistency there as well but sort of returning to the core issue i mean i don't think most of the sort of the complaints about the rule twenty three point one see dismissal i mean it's a little bit of looking through the wrong and the telescope right i mean the know the amount of time lapse from when they learned it when they actually filed a motion to intervene you know it's really not excessive just looking at it by itself but what i understood  for the right i think that's exactly right your honor i mean that's the lulac versus wilson case which we say to you right talks about when you're assessing timeliness right there are multiple factors there's what's the stage of the proceedings what's prejudiced the parties right what's the the length of and the reason for the delay those are the three factors that you look at under under under u s versus oregon and u s versus washington this is all in the briefs right lack talks specifically to this point and it commands i mean it requires the trial court to take a nuanced pragmatic approach to looking at the collection of the litigation and making an assessment right and that's why frankly as three either current or former trial court judges i mean time it's well st of all seven months of a bunch of things happened in that period of time right including right a bunch of activity in the in the class case write a bunch of activity in the delaware consolidated derivative litigation so that there was a mediation as a counsel noted in the interim right so there was plenty of activity going on in look that's the type of thing that court is entitle to just to sort out right it's sort of two parts of that test  right one is how long and secondly is what's the reason right that's what us st washington talks about right and in this case again you sort of can't escape the fact that notwithstanding putting in multiple declarations from counsel declaration from sort himself there was never any explanation as to why they waited for seven months right i mean if you look at the case law right it's a little bit all over the place right certainly if if it's a couple of weeks or a couple of months that would seem to scales towards you know fine a finding of timeliness if you go out months or years or some of these cases are that seems to be untimely but but but the thing that connects all of them i think is what's the explanation right each case is different and here notwithstanding having been given multiple opportunities right to explain why it was they waited to move we never just report never got an explanation for why he waited to move along and i think that's i think that's a critical piece of what informs his discretion here it wasn't just that it was seven months it was seven months coming after a year and a half coming after the lack of any explanation whatsoever and looking coming at the fact that you know prejudice is one of the factors right in the district court made a finding on that he said in balance it's neutral so so on the three timeliness factors right one being reason for an length of the length of and reason for the lay nd one being prejudiced  one being stage of proceedings he said the nd was neutral and again that's that's within his discretion to find here right i for we argued opposite of course we said we were prejudiced he said there were he said it was slighted best but where he came down and where he exercise discretion what move the needle really for the district court here was of course the fact that it taken so long a for him to wake up and even file and be once he then did to even attempt to intervene instead nikki combined with the stage of the proceedings and everything that happened then sort of the overall complection of the lending club securities litigation which was very very involved at the time judge reopened did nicky what was the status of the class action the the class action at that point had been settled that all right already been settled you approved the settlement at that time you know that's a great question or did it or did the son would come before he filed his motion to settlement certainly came another experience i've never really had the opportunity the guy dismissed and we now know that you know that had a very high element of fraud and couldn't do it but fourteen a claim so so so my answer is of course it does doesn't matter one section fourteen a claim even were he allowed to pursue it still requires under federal law twenty three  he'd still have to make a demand the reason the delaware action ultimately failed was because the plaintiff there failed to make a demand on the board and it failed for demand for utility he'd suffer the same fate here it's the same analysis so i don't think it matters st of all nd of all as a matter of law right under circuit law under geithner which we said to you and again under lulac versus wilson under those cases right the counsel in both cases actions were pursuing the same objective right in the fact that they're pursuing the same objective even if they employ seventy right he asked the delaware lawyers to weigh in and say why they didn't file a section fourteen a claim they said after investigation they chose not to pursue one right so he so the fact is there was under the other prong of rule twenty four intervention there was adequate representation of these interests in delaware at the time that mr shaw removed to intervene and therefore judge also it was correct in exercising his discretion it certainly was an abuse of discretion to say that under says after receiving and evaluating books and records from lending club the elected in consultation with their clients exclusively to pursue state local aims and lower court of chancery and from there the judge also determined or took it to this level that the delaware plaintiff decided to intervenors arguments ok whether the present party is capable and willing to make such arguments and whether oppose intervening would offer any necessary elements to the proceedings that other parties that other parties would neglect delaware wasn't doing that ok it's clear delaware was not putting forth the fourteen a claim so that's that's in contrast to the th circuit