morning your honour's may please the court my name is joshua lip service i'm here today representing the liberty mutual appellants i'd like to reserve three minutes of my time for a bow under the plain language of section fourteen fifty three c one and acted  over this case that section says quote notwithstanding section fourteen forty seven d a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remain and a class action action right that's correct point me to the language where congress repealed the statute that says ordinarily we don't review removal or it's right there your honor it says notwithstanding section fourteen forty seven d you read that as a complete repeal of the statute that is that how you want me to read that no your honor it's not a complete repeal it's a repeal with respect to motions to do with orders with respect orders reminding class actions in class action has a very specific definition so you want us to basically ignore the statute that says we don't removal orders of other classes i'm not familiar with especially your honor there's a statute that says fourteen forty seven two says the the court of appeals is not usually it is not empowered to review remained orders this is an exception to that but but you want the exception to swallow the statute you want to see if we rule in your favor what would prevent somebody from coming whether they're cafe or not right yes you are what you want to rule well yes your honor the plain language of the text says that with respect now it's not a mandatory appeal it's a discretionary appeal so this court would have discretion to determine whether the case whether this particular court should review re mentors and it said that the court should review cases that are interstate class actions of national importance this is an interstate class action of national importance on several levels the series of controversies here was launched in  to federal question as opposed to diversity really well that they did not say interstate cases removed under diversity jurisdiction cafe itself fourteen fifty three c does not say remained orders remanding a class action that has fourteen fifty three c one does not reference thirteen thirty two d two it references specifically the meaning given to class actions in thirteen thirty two d one which is a different some prevail what it there's also one other important part of that subsection that says it's talking about a case under this section and so we have to figure out what this section applies to don't we yes  does talk about cases that have been removed under the section ok this is certainly is when we go back and i understand your argument is because he referenced the class act definition which is found in the diversity section but that they don't cabinet diversity means any class action well it means exactly what it says in the very provision that it that it references in class action is defined as civil actions that are filed under rule twenty three of the federal rules or under a similar state statute and i would also class that right isn't that what rule twenty three is yes your honor is all class action so this court would have disc the discretionary as the plain language of half a fourteen fifty three c one says this court does have discretionary review a discretionary view to decide whether to review remainder orders of class actions that is perfectly consistent with the purposes of  position with fourteen forty seven an order remanding a case of the court from which it was removed is not reviewable on appeal or otherwise well fourteen fifty three c one says an expressed terms notwithstanding section fourteen forty seventy i don't know how else congress could have carved out an exceptionally congress could say the provision in section four hundred forty seven d is hereby repealed but that's not what it did you're on placed by the language that you want to read in fourteen fifty three  one no your honor because fourteen forty seven d is a bar on removing congress could do it that would be a very different thing to for congress to have done that would have been a complete simple straightforward easy to understand legislative action there are individual actions in any individual action or remanded to state court this court continues to have no discretion no ability to review that remained order under forty forty seventy fourteen forty seventy has force could you look at the one for me and  provision that is not referenced by four hundred fifty three c one so to just home and point congress could have very easily said this court has discretion to review orders remained in class actions removed under thirteen thirty two d two but it did not do that it stopped at the words class action and it referred the court to thirteen thirty two d one only fits the definition i question that you think that this has no relevance at all it is relevant in the following sense in the sense that i mentioned earlier which is in deciding which cases to grant remember there's a there are separate questions here question do you have the the ability to grant this petition and for with respect to that question i don't think this case needs to be a catholic case so to speak it if you mean if by that you mean diversity jurisdiction case because that does not appear in fortune fifty three c one then there's the question of whether the court should grant review whether it's the right case for this court to grant review and on that question of course the issue is whether it well and that is a factor set forth in the coleman decision from this court whether it raises the types of issues that kaffir was concerned with and so if court unquestionably has jurisdiction over this petition if it chooses to exercise it your position and if it is then for jurisdiction earth forward to review orders now extends to all routes twenty three class action do we have to comply with the time provision and decide within sixty days of granting permission to appeal yes your honor that would be built into four to fifty three any class action jurisdiction so we're talking only federal question jurisdiction cases they've been removed to federal court and despite having federal question jurisdiction the district court erroneously remans it to the state court which is what happened here there are not that many cases i submit the fall under that fact pattern and even then this court has the discretion to decide whether to grant the petition and in fact the senate report that accompanied the catalytic slayton said specifically that it would be a mistake to think that fourteen fifty three will crush the calendars of federal courts because it is discretionary and is  legislative history that says that congress and addie a whole new section here on removal and adding a whole new section to thirteen thirty two at the same time  or series of rules requiring court approval for certain types of class action settlement that sections seventeen twelve and seventeen thirteen it created rules for calculating attorney's fees that section seven hundred twelve it created rules apply not only to diversity of class actions but also to federal question jurisdiction federal question class action we know this because section seven hundred eleven defines class action in exactly the same way that section thirteen thirty two defines class action it means all class actions the congress uses the same definition in both provisions now with respect to the legislative history the senate report is littered with examples of state court abuses of the class action device in cases raising both state law claims and federal law claims a give you a few examples page twenty four of the senate report discusses a case in an alabama county court on behalf of more than twenty million people alleging that the design of federally mandated airbags is faulty and the senate report says why should an alabama state court tell twenty million people in all fifty states what kind of airbags they can have in their car federal preemption issue in that case because these are federally mandated airbags and it says this is the type of issue that we are concerned about being adjudicated in state court so congress was absolutely concerned with the primary purpose of caffein as the supreme court has said in the dark case and in the knolls case was to prevent abuses of the class action device in state court it would be completely illogical for congress only to have been concerned concerned abuses that arise out of diversity cases where no federal law is it issue and not be concerned with abuses arising out of federal question cases which by definition have a nexus to federal law so there's every reason to believe that congress was concerned with all types of abuses in state court with respect to the class action device and this case is really the perfect example of why congress was concerned here you have a class action that was brought a series of class actions brought in washington another series of overlapping class actions brought in illinois the illinois cases affected thirty nine different states medical providers and thirty nine different states the court the that case reached a settlement then there were additional class actions launched in washington state court again to choose to collaterally attack the illinois multi state settlement there's a federal due process claim in this case so these are exactly the types of issues that are discussed in the senate report itself the senate report report on page twenty three talks about another common abuse in the filing of copycat class actions i e duplicative class actions asserting similar claims on behalf of essential of the same people in different courts around the country that's this case so the senate report is chock full of these examples that apply not only to state law diversity claims cases but also to federal law let me ask you the attorney question on the remaining grant that's correct so and so on that wouldn't we have to evaluate it appropriately we would fifty three petition it still needs to decide whether the fia word was proper that's durham that's exactly what durham said and and on that issue i think there's really no question that the district court's reman order on timeliness grounds was erroneous there are scores of decisions from this court including harris and cut sounds and many others that have been there in the briefs and elsewhere that that show that the district court's decision here was faulty for a number of reasons the only document that established federal question jurisdiction in this case was the reply brief that was filed in support of the motion for dec relief and we removed two days later and if we were to determine the timeliness issue in effect in your favor it would still leave the question of whether federal question jurisdiction was appropriate correct for the district it would except that the district court actually ruled on that if found the federal question was appropriate that's page six of its order in the order remaining the case it says federal question jurisdiction there is federal question jurisdiction here the problem is that according to the district judge he thought it arose much earlier when we received some kind of subjective knowledge you know earlier in the case before anything had been filed but the issue of whether there is federal question jurisdiction case has already been decided by the district   the trial that was originally scheduled for january which prompted some of the motions to expedite in this case has been postponed because of an grant of intermediate appellate review on another issue in the state courts so there's some activity there i there haven't even the bridging hasn't even begun on that there's still a long lag time on that thank you thank you action this can be in front of you you're going to see a lot of if the defendant is correct but he's not correct here that this afternoon defend is not correct i mean the plain language of this the statute says that you must be a class action under this section and this action refers to a caf so the federal court is a court of limited jurisdiction you're just stiction as defined by congress congress has made clear that it has taken katha cases out of the general prohibition against review of remaining orders and  seven circuits have looked at this and all of them have concluded in either direct or indirect manner that there is no review outside of calf cases and  katha vested original jurisdiction in the federal district courts of a class action beats several criteria the class action here did not meet those criteria it was not a class action that involved more than five million dollars at issue where they would have removed under caffe of the not he goes on to say that the legislative history is that in order to develop a body of appellate law interpret the legislation i mean  without unduly delaying the litigation of class actions they were permitting review of catholic cases because they wanted to vell up calf a lot the were not one of the things that you began with and you said it clearly states i think i heard you correctly at fourteen fifty three clearly states it applies only to katha did i did you say that yeah i think it does because when we say that it says in  i would submit there's no way of interpret under this section except to refer to the section that is gaffa i mean that makes no sense otherwise and the suggestion that congress intended by creating a limited removal for very specific class actions to broaden the review of any remaining order having to do with any class action just seems totally contrary what congress was about it said in order to jurisdiction you have to have specific type of class action including something that might fall here which is a local controversy this is a washington state class involving a washington statute and a washington claim there is no indication whatsoever that congress intended that a that class actions generally involving a single state citizens involving a single claim that was brought on a statute was it was something that they had in mind in cafe you have to have five million dollars that at issue to deal with a lot of the time was spent on that and would like if it's ok to move on to something which is the attorney for the issue because i believe really the other question is very clear from the other circuit court decisions that have addressed it and the statute itself and the practical of clay sions a judge tolman his question pointed out but the attorney fees issue i believe is also very clear i mean the defense counsel misspoke he said that the only time a defendant learned of a quote federal question being at issue was in the reply that's not true and i think it's very important and i you the their response in the illinois court and i would just like to point out some things about this response the defendants in this statement to the illinois abused his discretion based on the record before him and this is the part of the record before him you see over on page four the defendant saying the declaratory judgment actions dr curbs counsel has filed in seattle versus a q and she ever slippery mutual seek to litigate before judge shafer many of the same issues that dr herbst opening brief present in this court so right there there is a good knowledge meant it's telling  the court look you've got to look at these motions for judgment that the same attorneys have filed in the washington state court and then they say see my declaration and exhibit seven to exhibit seven is the motion for judgment on the due process issue in other words the issue for the motion for judgment we were asking judge shaffer to make was that the illinois nationwide class action could not be applied to washington citizens wash providers that had a washing c p a claim consistent with due process and we cited as our authority your decision in hasee versus spirit and has the verses brant was a case in which  the ninth circuit held that a cancerous nationwide state class action could not be used bottom line what is the notice in this case ok and we got a lot we got cases all over the country and if and if if you have to like hang off a christmas tree reading the tealeaves as to what people are saying that is chaos what is the notice in this case well the notice this case if you permit me to continue is clearly the motion for judgment in the safeco case because that's exactly what they're telling the illinois court is giving rise for judgment in the safeco case yes as i recall and there are a lot of yeah ok says we're say so had judge shafer ruled on october twelfth the date set for the motion for judgment before it would have been collateral stoppel against liberty mutual but going back to my question i think the answer is that liberty mutual is not a named party in the safeco case that's correct there was a separate lawsuit filed against them but if you recall one of the things that judge martinez found was the exchange between counsel there represented larry mitchell in safeco and us who represented the plaintiff in both cases in which again the defendant was acknowledging the exact same due process argument that was the only rationale used to transfer the liberty mutual case to judge schaefer or a had the seiko case and the only rationale to move the hearing date of october twelve to october thirty so both motions to be heard together to get me i think there could be could be a communication let's just assume that a communication qualified as another paper yes just for starters and there could be a communication in which one counsel says to the other we're raising it to process claim or whatever but this communication as it read it basically has to do with procedural consolidation for argument or some other procedural purposes right well the council can well yes but but but the substance of the communication is the rationale for doing so the liberty mutual case oh there is no other way to read the communication in context your honor because again you will see in that e mail they dropped the due process argument in the safeco case they said we will stipulate we won't raise the lebanon illinois settlement and safeco it so it was only in liberty mutual at that point when you read that e mail the only motion for judgment now was in the liberty mutual case and the grounds for the motion for judgment was the due process argument and if i might be permitted to kitchen with what they said your honor because this is on like other cases they cited this is a case in which the defendant themselves is telling another tribunals look at the place of this motion for judgment and you will see this and they go on to say that issue and others including the sufficiency of the procedures the illinois court use to assess the adequacy of notice and representation under the illinois and federal constitutions right there they're acknowledging that they're telling th court look at this motion they're raising a federal constitutional question there and we want you illinois court to decide it be goes on and says and dr curbs motion the motion to continue before the motion for judgment because they're raising the exact same due process federal constitutional and federal law issue that we want you illinois court to decide and they go on and they say after saying pointed to this motion for just saying what they understood it to be a federal question being raised they then go and say the court should promptly deny the motion to retain the november tenth world argument in other words with the arguing this is that the illinois court should not continue the hearing so that judge shafer would be allowed to make the decision on the federal question the federal question they say is a question of important issue a federal law and a federal constitutional question now they get that from point again to the motion for judgment exhibit seven to my declaration so when judge martinez is looking at this ok so this was the motion to continue in illinois yes love and happiness and case yes and ok so so what is critical also is not only does he have a statement by the defendant he didn't have to guess what was in their mind right he has a statement of black and white and then he has a defendant who acted on that knowledge that's unlike any case that's been cited to you the defendant actually acts on the knowledge that they believe there's a federal question because it then uses that to justify their position asking the court to deny the plaintiff an extension and that's not the only time they acted on that knowledge and it gets back to these e mails the only way they could get liberty mutual transfer to judge shafer was to point out these same motion for judgment on the due process issue was going to be presented to judge shaffer on october twelfth and it made sense then to transfer from judge chung the judge assigned to judge shea for the liberty mutual case similarly it only made sense to pick it back to october thirty now only sees he believes a federal question and acts on it and gets a benefit from the court for that fact that's a different can of worms then then the situation where are all about the defendant having to do this calculation to determine whether there's more than five million dollars and that the case most recently cited to you the gibson say is from the six circuit is illustrative there the player said well we want more than five million dollars but the calculations that they provided the number of class members the amount per class member in damages didn't add up to five million dollars that was the problem the defendant always in a catholic case has to make some sort of calculation you don't have to do that a federal question and i would point out and i would be remiss in not doing so this is a hypothetical exercise there was never federal question jurisdiction to be in with and contradict consul statement judge martinez did not find federal question jurisdiction he said i don't have to go there because if they're telling me that's the basis removal i can see that from what i just read to the court and from the plane as motion for judgment and from these e mail exchanges that they clearly believe before more than thirty days before removal that there was a federal question being raised they clearly believe that he didn't find it was because i mean my goodness for decades the rule of law has been that a federal question isn't raised unless it's raised in the complaint itself and we appropriate in some cases the process of removing a case to federal court and then having it remanded back to state court delays resolution the case imposes additional costs on both parties and waste judicial resources and write thank you well we i know we took up a lot of your time in questions mr lipshitz and you probably have a few things to respond to i think it would be helpful particularly on the attorney's fees issue so if you would put three minutes back on the clock so he has some time to respond thank you very much your honor may just a few points first of all the opposition brief from the illinois case that my opponent spent all this time walking you through if you look at the date of that document was filed on october first the motion for declar atory judgment in this case the liberty mutual case was filed on october second what do we think then under durham you have to reverse the feel word without even reaching the question of whether there actually was federal question jurisdiction that is exactly durham situation derm said the few word was rendered on timeliness because the distinctions was wrong on the time when this question the few words reversed and if that point you could either send the case back to judge martinez for further proceedings on the removal or you could based on the record decide yourself that that you know that there was a federal question or station and i want to make another point very clear the question here is not just whether there was a federal question in the case the question is whether there was a federal question that survives the well pleaded complaint rule and that is a very different question and the first time that that became clear in this case was not until the reply brief and there's a very good reason for that until then and you can look at the stipulation between the parties not the stipulation the september seventeenth e mail communication that was being discussed if you look at that document it says very clearly in mr preston zone words the parties stipulated to a transfer of the liberty mutual case to judge shaffer and addressing defendants affirmative defense based on the lebanon settlement at the consolidated hearing so at that point in time it was into supported that the ring mutual would raise the lebanon settlement as an interested defense and mr preston within res due process as a as an argument against that affirmative defense that type of federal question does not survive the well peter complete rule if we had removed at that time based on this communication we would have been sanctioned unquestionably and so that is not what's at issue here the issue is when did the federal question become a sword an affirmative claim that was used against us without respect to whether we were going to assert an affirmative defense that didn't happen until the reply brief and how do we know that we know that because in our opposition brief to the motion for dec relief we argued that we had not yet decided whether to raise the lebannon settlement as a defense we had a number of reasons for that we had a motion to dismiss decide the due process validity of the illinois settlement anyway irrespective of whether we raise it as an affirmative defense and he made a number of statements in the reply brief he said here chan seeks a judgment that the lebanon release cannot be enforced this issue is governed by due process law not illinois law this is all in his reply brief he says liberties mutual's procedural arguments i e rightness are quote baseless and he argues that has to be sprint's this case is the federal due process case makes clear that this court should do a review that is when we first had notice of in this case that he would be making an affirmative argument that the lebanon settlement violated his federal due process rights and that is squarely on full on all fours with the yak a c in this court where this court said that a reply brief and for the first time raise a federal claim it does not have to be in the complaint a reply brief is sufficient that's the case and it's squarely on point here and if i could just make one final point back on the  breslin said in the opening sentences of his remarks he said that fortune fifty three says the case has to be a quote class action under this section that is not what the statute says the statute says that quote section fourteen forty seven which does a lot more than just progressed prevents review of riemann's room and orders section forty forty seven as a whole shall apply to any removal of a case under this section this case was removed under the section because fortune fifty three tells you exactly how to remove a case under the section it says you follow section fourteen forty six and that's what we did and we cited section fourteen forty six in our notice of removal it then goes on as a completely separate clause to say notwithstanding section fourteen only the part about not needing the concurrence of all the defendants could possibly apply to a federal question as well so it's all targeted to diversity i agree that many of the prisons here are targeted at some of the diversity requirements or read  court where there's been all this abuse thank you yours thank you thank you both here and arguments are interesting and yet another interesting statutory question and we thank you for that very thing and the many references we will read them and have read them all