congress has elevated the receipt of these texts the status of automatic article three injury even without any allegation of harm as of course there's no allegation of any harm in this complaint the sued say they have diversity jurisdiction and they sue saying there is a state law clause of action that nobody's ever heard of before for invasion of privacy when such an unsolicited phone call is made i can see how a court might say no such thing there's never been any such cause of action dismissed under rule twelve b six why isn't why doesn't the person have a perfectly ordinary article three standing many people i assume would feel that their privacy was invaded and that's an injury that may or may not be a legally cognizable injury well certainly your honor would there be standing in that case are you saying that i think it would depend on things like whether that person actually real noticed the text and was annoyed by it would they be suing if they hadn't noticed the text right so that person individual l there are a lot of ways that that can happen there are lawyers who has not even there's a lawyer who called them up and said yeah i'm solicited i'm making an annoying invasion of privacy call to tell you that your privacy has been invaded by somebody in the person and as oh yeah i was offended i don't know how people could i don't i just don't get what you're saying frankly as a matter of standing book was what congress why did congress and the act of this statute because people call them up their constituents said we're getting these annoying phone calls oh but there's a huge difference i'm without having to reach the issue of phone calls as opposed to text yeah there is a massive difference between people being but i mean look at for instance what the plaintiffs quote on page four of their brief statement from the sponsor senator hollings about what was upset ing about the phone calls that they're regulating that interrupts dinner it wakes people up in the morning adric sick people out of bed all of these things you want to rip the phone out of the wall none of that has anything to do with tags so well some people do and some people don't there's no record here of course because this was all decided on the theory i see walking around on the street or doing nothing but texting each other yeah you know i just don't understand what mean what is the human reality here you're saying they should have said i got these texts and it offended me and the absence of that kind of allegation is what you say means there's no standing or even i actually noticed it it came to my attention your honor i mean as long as if somebody if somebody is suing and says i got slapped in the face and i allege this is a battery under state law does not allege any physical injury from the slap the person has to say but i noticed it and my dignity was offended well that's why it's a cause of action for batteries because when somebody gets slapped in the face we understand that in normal people's dignity is offended by it but your honor this is the difference between  whether a tree fell on the forest or tree fell on my car because there have got to be millions of people many of them perhaps older than the people we see walking  don't use text functioning may not get text notices may not notice them there we don't know any of that here because we have this notion just that the mere sending of a text that we have no idea if someone ever notice is a violation if all these haps in class made a very good argument as to why as a substantive matter a text is different than a phone call which is the issue on the merits that your co defendant third party plaintiff decided to compromise rather than litigate you're free to litigate it aren't you i think we are free to litigate extent you're not in the case anymore as against the plaintiffs is that right because that was dismissed right so the should the litigation continue either in this case or in a freestanding separate case between you and  american eagle you would be free to raise the argument that as of twelve b one matter they may have sold out on this and settled the case but there actually was no claim that there claim no six but that our argument here is not that there was no claim it's that if you have something that has you know where you have a class of millions of people whom may have been injured by and some from may not and where are you have the idea that i mean both the district court and plaintiffs have felt compelled to rely on the dia that congress elevated this that may or may not have been a problem looking out across the board sure maybe congress could say yeah anyone who receives this we're going to assume is injured but yeah why can't you now make exactly that argument isn't having difficulty and i think this is where judge lynch was headed with the last question what what in what way you harmed by the fact that american eagle is no longer carrying that cause you can  you can you can disclaim liability to american legal eagle by making twelve b one twelve b six or any other relevant argument i mean i guess i would say that you know first of all aside from there being some why can you have every right at this point to proceed as against american eagle but just because the court may be in your view of god and that will be one premise wrong you're not disabled from making exactly that argument now certainly i would like to think that we're not disabled from an on the other hand and advising a client whether you know they can be rock solid sure that there is no way that they're going to be affected by the determination here i think that it is possible in because again this is not all that well spelled out a path for litigating this kind of issue that necessarily is presented in the main case to then try to relieve real real litigator in the other case so and mr fayed i thought your answer was going to be it doesn't matter to us does it if you have no standing as it were you know when you live by the sword you die by the sword i suppose to standing but if you have no standing to raise this issue we still have to decide because now we know about it and we have to assure ourselves in our own jurisdiction so you are effectively here as amicus curiae i if you don't have otherwise have standing certainly i'm sorry i thought that was assumed but yes that certainly is true right sending me away doesn't send the issue right that's right and if we sent you if you were still pressing the other issues that you were raised in objecting to the settlement there would be it would it would matter whether you had standing to do this or not but i take it you are not is arguing article three stand and article three standing is something we have to decide so if you are right we should just thank you very much for calling it to our attention no thank you will be no thank you but whether you have standing to raise that standing issue is of no moment to our need to decide the issue certainly i think that's true so if i've not been giving you a hard time it's because on the substance of that issue it's because it does matter and we do have to decide it  and we may decide it for you or against you but we have to decide and i just think it really is important be clear on the idea that unless you're going to assume that everybody  you know millions of people who've received text messages may or may not have ever noticed them they may not pop up on their phone however it's set up unless you're going to assume that they're all injured then the standing here depends on a judgment that congress has decided across the board that this is an injury and congress never decided anything like that does the standing issue given the class settlement require that each member of the class individually have had the explosions of the text message that you contend is enough to get over article three standing or for the purposes of settlement approval is it enough that there be some i don't think it is but this is an issue that i s not a completely settled issue but one that for instance chief justice roberts wrote about it in opinion joined by a couple of others a couple of years ago as to whether there's got to be article three standing for each person receiving relief in a federal court case so i do think we certainly think he's right about that so i do think that you can approve a settlement that is going to be and enter a judgment it's going to be paying out money to people who don't have standing the way with that what does that go to then do we no one's objected to which would be that individual issues predominate because everyone would have to say i actually saw the text in order to collect whatever the merits of that or an issue number two would be if that's considered as a pretty simple matter to resolve that would just go to who can actually collect on the settlement yeah the that is i mean you are raising what is definitely a relevant issue but i would say is that having dealt with this in other contexts that whole issue of where the class members are standing figures in is a mess but your issue is the name to plaintiffs at this point no no not just the name plaintiff because at this point where we're dealing with the were not act last certification after class certification stage there is certainly a decent argument may be correct one that there is no article three problem with certifying a class that may contain although there is a second circuit language in one case saying you can in what i think it's the denny case perhaps but that is not a side maybe that's true maybe it's not here we're talking about approving a settlement to that's going to involve paying people whether or not they have standing so right but that's still not the issue you're raising what you're raising i thought was the issue that nobody has properly certified we aren't actually facing a question of who gets to collect at the end of the day against this fund what you are arguing i thought was the none of these individual plaintiffs the named plaintiffs who bring the lawsuit have shown even on their own behalf standing because they have an alleged slash at this stage of the proceedings actually presented evidence that they suffered the injury because they have not put in an effort david is saying i actually noticed the text and felt my dignity was offended by it or my privacy was invaded by it or something like that so i think we are raising both i think we are certainly raising as to the name plaintiffs but i think that we're dealing with a appealing  a judgment that entitles all of these class members without standing to collect so it's not just a question of that can be remedied if that's not a question of class propriety of quest certification that's something that could be remedied or dealt with at the administration phase as each person shows up saying i want to trunk a money nobody gets the trunk of money yet experian has agreed experian american eagle has agreed to pay a certain sum of money as a fund that people are then going to claim against and at that stage maybe or maybe not joe blow who got a text who is a class member under the definition in the district court's order who has never yet show up at all may or may not have to say something about if you are right about what constitutes standing about whether he noticed the text and suffered an injury from it and the problem that you've got it's i thought  three standing issue that is presented to us at this stage of the case is whether the named plaintiffs have article three standing because if they don't the district court had no jurisdiction to go anywhere at all i thought that was the argument that it doesn't matter whether you have standing to raise it or not yes and the reason i say both is because i'm not sure that the premise of what you're saying is correct that it's open to be considered the way i read eagle is paying fourteen point five million dollars i take it they're paying that money even if only three people show up even if only the name plaintiffs file a claim at the end of the day they get to divide fourteen point five million dollars  entitling these people to the money without article three standing then that does raise an article three question i'm not sure exactly how to unpack what happens there and how it affects us i'm not sure standing here today that certainly if there was no article three standing to enter and order like like this and title and i'm really saying is do i misunderstand  that the issue that you have presented in your brief is that the district court lacked article three standing from the get go because there was no injury to the people bringing a lawsuit  because we can't look at human beings and say they would probably be offended by receiving text like this because they didn't necessarily actually receive the text or they haven't documented that they've received the text i thought that was the essence of what you briefed for us very helpful way to make us consider whether there is standing i think that is the essence of it i'm just saying that i'm not sure that that's the totality of it because i do think we're not i don't know who else is right well or your friends on the other side i take it have a very different claim about the standing of the name plaintiffs but if they when they're coming after your codefendant for way more that's what they're saying is this is a crummy settlement because it's not good and should be more money paid because yet more people got yet more damages than the plaintiff's lawyers three cover for yeah and look your honor and the truth is however you get to whatever the courts answer is in this case i think that even the the analysis is going to be important because of the difficulties that are there in interpretating spokeo and struggle on how they applied as much difficulty at all frankly i think if the question if these people did get text which i guess i always sort of assume that if people say we're suing because we got these texts and that it took it takes no congress to tell me that a reasonable person can contend and that hurts me in some way it's then perhaps for a court to decide that but i don't think that this is a congress coming around your honor they of course they choose not to even allege that because they're really here because they want to represent a class that may or may not be able to allege that so they're not alleging that they're saying it's just the barest statutory violation that automatically does it and they're not here alleging thank you sufficiently it alleged that they received statutes that they came from american eagle with a source code three to four dash five three designating american eagle as the originator and they didn't consent to those texts when i filed objections i filed declarations on behalf of my client in this case before this court carob and her daughter broke they'd make claims because they both got taxed they both put in declaration saying we did not consent to the tax they put answer was she has no claim they said there's no evidence she received a text from american eagle without her consent she is not on the list of six hundred eighteen thousand three hundred one persons i thought you were not remedy be if you are right about that that actually you do agree with mr fayed or maybe a twelve b one motion addressed to the complaint would have been affected but a twelve b one motion raised  the class certification stage or the district court recognizing the issue at the quest for cation should have said oh wait now it's time for these people to put in effort david stickler ations etc of the sort that you put in they didn't know jurisdiction case gone miss bowes if you want to bring a case go bring your case why wouldn't that be the right answer if you are correct well that's very close to the right answer and i did fairness hearing say there's an article three problem they have not demonstrated that they are class members with standing to litigate this case they've pleaded it but they haven't proved it my client both prove that they are members of the class was standing and they say it's not good enough for brook boast you need to require proof from them i just want to make very clear my understanding here about brooke because we have a lot of issues in this case and i want to make sure i know what's an issue and what's not as i understand it  have been a horrible injustice to kick out of the case or it may not have been but she has not appealed that she's not appealed because she's not bound by the judgment below but it's important to illustrate what was absent from the named plaintiffs proof of their claims and proof of their article three standing and membership in the class ok so he wasn't a member of the class let's get back to what are you arguing because if  if you are correct about the failure of the named plaintiffs to document that whatever it is they need to document that they actually got the text or whatever they merely alleged it why is not the correct answer what mr fader says is the correct answer to the case we should dismiss this entire matter for lack of demonstrated jurisdiction vacate the class certification and if your client  carob wants to bring a case she is not bound by either because that would be a dismissal without prejudice they would be no more class no more nothing no more case she can go bring whatever lawsuit she wants to bring well she demonstrated in this case that she is a member of the class with standing it would make more sense to hold the name plaintiffs who refused to show that they were members of the class with standing cannot continue to represent the class and that she should be able to move to intervene and be the name plan if to prosecute and when you say they refused they were deposed i take it by the defendant at some point in this litigation or stand you haven't seen those depositions right that is my understanding but they weren't to post i've been told by class counsel that name plaintiffs were in fact and those depositions are part of the record in this case albeit sealed they are under seal i don't believe they are part of the record in the case i don't think they didn't think they showed them to the district judge i quite frankly suspect that there is testimony in their depositions that's quite adversity to a case that may well and to indicate that they're not members of the class and don't have many and they may well indeed but those depositions were taken what would prevent us why wouldn't we in that have and just go back to the send this case back to the district court on a sort of jacobson remain and say make them show you in the show you the depositions and in the depositions if it turns out that under cross examination by very competent counsel for the defendants they testified without any contradiction or any other evidence that ever came into the case that they had received these texts etc etc wouldn't that put an end to this get after the fact but it would be rewarding them for playing hide the ball quite frankly i don't see what all the hiding well if they testified and this seems to me more in the nature of a kind of oversight it would have if they did texts it would take nothing for them to have put in an affidavit there's no wall to hide there to show that they are legitimate if it turns out they are and that would be a whole different thing but i also assume that with competent defense counsel on the case if they were deposed and the depositions first question was and did you ever see this text and they said what i never heard of it my lawyer just filed this lawsuit and told me i would make a lot of money from it respect to her i'm sure she's a very nice lady she is irrelevant to this she did not appeal whatever happened to her the question is you are saying that kara bose who is your client who you are representing here put in this kind of declaration gave this testimony and the plaintiffs did not but if the name plaintiffs did you still have other issues to raise about the sufficiency of the settlement but the standing claim it seems to me dissipates near still the question whether the name plaintiffs are on the list of six hundred eighteen three hundred six hundred eighteen thousand three hundred one and at last which is not something that the record reflects thank you and thank you very much settlement which we haven't talked about that is subject to the use of discretion standard and unless your honour's have something so specific they want to know about the settlement i'm prepared to just move on to standing well i guess i'd like to know specifically about the question i was raising with mr isaacson which is do you have something to fear from a jacobson remand where we ask the district court to open up the depositions and  the list of six hundred thousand and see whether your folks are on it or not we do not your honor however i don't think that's necessary i do think that the remedy if your owners are concerned about standing once we're done with the conversation today would and to reopen and look at that evidence but i don't think we need to reach that and i think there are a number of cases in this circuit that tell us that but let's start with that put paid also to mr fader's argument that is maybe as some technical matter there should have been some allegation of some sort of actual injury by the plaintiffs that's distinct from just a statutory violation maybe we can't just assume that people who are suing because they  got unsolicited text messages just didn't really care about that never even saw the text messages but of the if these people actually testified that they did and that is in the record so that even at the more muscular standard of review the class certification or summary judgment stage these people do have standing this whole thing goes away but for the issues that mr isaacson raises with respect the abuse of discretion or the approval of the substance of the settlement i write about that is correct and as you might imagine as i was preparing i wish that we had included in the complaint and  declarations to the classification motion just exactly those facts and those facts would show that each one of our plaintiffs are in the data within the class list that has been narrowed down for this case  which is good and it was secondly show in the deposition transcripts that the plaintiffs complained that they were embarrassed and annoyed about the tax and in particular that they were inconvenienced the complaint itself contains quite ample allegations which is why i don't think we have to go to evidence that's not required in the circuit or really anywhere and we haven't had anyone show us any authority to that effect but even on the complaint itself each one of them obviously that they received unsolicited tax and several of them put in great detail about how they asked to have the tax stop they they followed the procedure to opt out and instead for six or eight times later they still continued to get tax and so based on the circuit of the law on this circuit looking at the allegations of the complaint even when it standing you can construe those in our favor and those facts alone show a human person would be annoyed and it would take their time to have to continually asked to have the text stop seems fair enough to me at the same time with respect to making a class certification  motion one of the things that needs to be established is that the plaintiffs are adequate representatives of the class right and that has to be backed by evidence not merely allegations under current case right that's correct and would they be adequate represented of the class if they actually were not properly members of the class because they didn't have standing to raise this so why wouldn't they still need to document the class sort of occasion stage the kind of things that are said in the allegations of the complaint why wouldn't that be part of demonstrating that they are adequate representatives to say all those things in the we said in the complaint i so your honor i think because in the circuit in particular and rub it over salami ninety seven s second nine three one standing can be determined based on the allegations in the complaint and if that's sufficient at a motion to dismiss standard and on a the at the question of the cation stage you no longer can rely on allegations in the complaint but you have to actually show not for purposes of the merits of purpose of summary judgment you have to that you can rely on the barrel occasions in the complaint but i don't believe that course require evidence for every single element of your salvation for classification and importantly no one came forward with any evidence to show that any of the plaintiffs did not have standing quite the contrary and again i think the allegations on on their own are sufficient to provide standing under spokeo ask you the class settlement class is defined not to include a claim of subjective emotional or other injury it's defined as the six hundred eighteen thousand in change people who received a text message to their unique device and had not provided appropriate consent that's correct ok so would then mean that for the class plaintiffs and the others to opt in they have to at least be certifying something to that degree as part of the approval process that's correct your honor i think there's a couple of facts there that are important number one that that class list that six hundred eighteen thousand people was was reached through a joint expert of the plaintiffs and the defendants because the data was very complicated in this case and we wanted to make sure that we truly captured people who had claims people who had received tax and had not consented that's what that list is that's why we have some people like ms brooke who say they got text but they're not in the class but they're allowed to go pursue their claims individually and in fact she's done exactly that so that you're exactly right the class is defined to those who receive tax we believe under spokeo that means every person in the class actually suffered the concrete harm that the tea c p a was passed to prevent texts but it was back in those days when you got charged for receiving a text and i didn't want to get charged so i never activated that are you telling me in effect that someone that would not be on the list of six hundred thousand because that's what that list was supposed to look at in other words if a blast text message got sent out and it did fall in the forest with no receiving unit to hear it because that phone number had not had service activated that person would not be on the list when we analyze data in these cases we're able to pick only to look at disposition codes so that we can tell whether or not they are delivered and that was certainly the intent in the joint process to look at that data to ensure that the tags were actually there actually received that's right i want to go back to always all we don't know is whether  safeguard here to some of the concerns that have been raised by experian and that includes the claims process the genome are mentioned so this class actually has already received notice of this on it thirty eight thousand and change people have filed timely valid claims and as part of that claims process they actually certified that they did in fact receive the tax and so there are a number of different safeguards to ensure that the people who are something notice actually receive the tax people who made only the name plaintiffs must have standing you need not look to standing for every single class member it is required that the class be defined in a way that the class members would have standing and that's again why it's important that the class that we've defined here is only those people who have received text number one and did not consent to them but that suggests then that there is a need to raise the issue that mr feder as make is if you will is raising which is whether or not standing requires receipt plus a receipt plus some form of emotional or some form of distraction or invasion of privacy or my answer to that would be that  which require risk of harm analysis here there's a clear nexus in the congressional statute in the f c c findings that is the unsolicited texas to receipt of the unsolicited telemarketing that is the concrete harm and that's where the analysis ends i guess i you know i think maybe you're right about spokeo and the powers of congress but i'm still going back to the notion if i if somebody slaps me in the face and i bring a battery action and i that or you don't want to say that i don't think so the point is he's not allowed to do that that's a battery and i want at least nominal damages that he get he doesn't get thrown out that plaintiff wouldn't get thrown out for lack of standing  because we make that a tort as a matter of common law because we recognize that most people don't like getting slapped in the face and it should be against the law and common law courts figured that one out and whether common law courts ever figured out that getting you know i guess back in the time of henry the second they probably didn't have cell phones i can remember back that far but if it was offensive to get phone calls and the kummel court said no i don't see why congress couldn't say yeah our constituents are saying this is a pain in the butt and we don't like it happening all those guys who sued and lost because there was no such tort we're now making a tort for them i just don't see why we can't take cognizance of the fact that people don't like this it was an inch people are claiming it's an injury to them just to get these calls and congress siege by such people said you know maybe text it's not so but that's the twelve b six issue which you and the other side maybe a little lost on that as to whether text or even included because they're not that harmful but american eagle decided to pay you to not take the risk of losing and you decided to take maybe a little less money than mr isaacson thinks is appropriate because of the concern that you would lose and that's really all this case is about i think significan significantly your honour's this is not really you don't have to tell any new ground here there been a number of other circuits that have already reached these issues and found exactly that that the risk that the harm that congress intended to remedy with t c p a was the receipt of text and that sufficient you need not allege any additional harm that's van patten but more importantly the second circuit in lays versus lifetime entertainment services six seven nine outs forty four held as follows in so far as the t c p protects consumers from certain telephonic contacts we conclude that lasers receipt of such an alleged contact in the way described demonstrates more than a bar violation in satisfies the concrete injury requirement for a standing this is the case that the district court found controlled her ruling on the standing issues under spokeo it's a second circuit case and if you look at our at the district court's findings in her final approval order she actually noted that in lays the allegations in that complaint were as bare as they are here and so really this court has already decided that under the t c p a because of that close nexus between the interest and the remedy the concrete harm truly is the receipt of the tax itself and so you really need go no further not only for the pla and again the allegations and the complainer sufficient but also for all of the members of the class so even under denny we satisfy that requirement because the class definition itself is defined to include only th case is actually useful here because what the court actually says they're expected expressly says we need not hear decide whether the alleged violation of the statute would by itself be sufficient to establish injury in fact because the evidence shows and i'm paraphrasing that lifetime left to prerecord voicemail message to which the plaintiff later listened plaintiff's answering machine and so actually it's not the same as here because we don't have the equivalent of knowing that the plaintiffs listened to them it's not we don't have this is same thing like you say if your phone bu there are a lot of situations where people's phone doesn't even phones don't even but it's right so that's now congress let's assume for the sake of argument congress can say look it's offensive enough that we're going to assume that this is an intruder cross the board for purposes of creating federal jurisdiction i just don't think that it is fair to say that congress ever made that determination about tackling this attack but that's ok right because that that is just a question of the merits as to whether this is covered by the statute no i disagree because it's it is also a question of the m sure but here we're just talking about whether congress has recognized this harm as a you know that we're going to defer to congress's judgment that this is a concrete article three harm and how do you see as you're asking us to do it rather remarkable exercise of judicial activism right to take the case or controversy requirement which basically says you know you have to have people who feel they're injured they're really injured and and now we're going to say congress can't regulate things that the public wants them to regulate because that would give the courts too much power and as a result of that the courts have to strike down legislation effectively in fairness here on earth i think it's spokeo that says that to a limited extent that there are some things congress but my point here is that it's not just the merits congress never made anything approaching a judgment that us message and somebodies text message on somebodies phone is a harm that they're concerned with that all the f c c later decided in the face of statutory silence that they're going to say oh this statute about people's phone to tear him out of the wall and interrupting dinner and all of that we're going to say it applies to techs also but you can't say congress made the judgment that just a  message showing up on your phone amounts necessarily to an injury there's just no work congress defect why would it matter whether congress did it under your theory congress can't make things into harms that aren't harms well the question is is this something that wouldn't be people would reasonably recognize as a harm an annoyance a problem and then it's either legal or it's not legal and there are lots of things that annoy me that i can't sue about right the classic  look you know if you every civil procedure course we tell first year students if somebody walks into the elevator that i know and they don't say hello to me and i feel snubbed i don't have a cause of action that's the classic example of the twelve the six kind of claim right but but if i feel offended and want to litigate the issue of is there such a cause of action it's a little hard for you to tell me i think that i don't have standing to raise that issue in a court where i think the key point of disagreement here your honor is that this is not about this is not about saying under the case law actually congress does have a certain amount of power in a do we even need to go to that gray area why doesn't somebody have standing to come to court and say this is bad stuff and the court should stop it and then the court isn't  and i think that the reason here is because we're talking about something that because you can't come to court just because something is offensive it has to actually injur and there are a lot of people who may actually be injured by it because it's even a minor annoyance but there are other people for whom it shows up somewhere in their phone they never see in and who knows do you have any problem with remained to see whether these named plaintiffs actually you may even know the answer yourself whether they are said in their depositions that they were i don't know your honor i certainly have  no problem with that because our position is that that's what standing turns up thank you mister i might observe you've had an awful lot of time for an ominous even the government  honors class council sites list versus lifetime entertainment the federal appendix case for allegations of the complaint being sufficient that case actually applies a preponderance of the evidence standard classification summary judgment with respect to pro of the elements of standing says the allegations don't matter if this is a classification and summary judgment what matters is the evidence that was put in the evidence is sufficient wal mart versus dukes the supreme court says  twenty three does not set forth in your pleading standard and quote and goes on to explain that you got to prove the things that you needed for class or vacation but but but with actual proof that includes their member of the class of they have the same injury their claims are typical and they can adequately represent the class somebody who doesn't have standing can't do any of those things so necessarily a class certification and settlement approval somebody is going to have to fit the class reps are going to have to show the article three standing in particular the supreme court says that the requirements for standing are not mere pleading requirements sure at the pleading stage the usual rule applies but later stages of litigation you have to present evidence and proof appropriate at that stage of litigation so the notion that they can rely on the complaints allegations on that stuff is just wrong and with respect to brooke who judge her party had said had an ironclad right to file her own action she filed it in oklahoma where she lives we retained oklahoma trial counsel american eagle follow the motion to stay it and to transfer it to the southern district of new york arguing that her claims are subsumed within the issues in claims that issue in this appeal judge just a couple of weeks ago stayed the action on the ground that brooke was claiming may be subsumed by the class claims if this court reverses and remains thank you very much thank you thank you to all three