not the district court abused its discretion in denying plaintiff's rule sixty b motion the cornerstone of our judicial system is the pursuit of justice as part of that pursuit of justice rule sixty affords courts the power to vacate judgments whenever such action is appropriate in order to accomplish justice this court has referred to rule said we review for abuse of discretion however yes that is correct this court has reviewed rule sixty as the grand reservoir of equitable power a central principle of justice and fair play is that the optical rules ground rules should not be changed in the middle of the litigation in this case cert petition already been filed and you knew that right no i determined filed our motion sorry at the time of the here at the time you filed your reply brief the cert petition had been filed and you knew that because you cited in your reply memorandum you and baker was stricken the class action certification there was not even and a hearing on the merits of the class certification motion and simply just on the pleading stage is stricken classifications and there was no circuit split on that issue actually the opposition in the petition noted that that th circuit was alone no other circuit had actually specifically addressed that but then in january the supreme court granted cert that generate a subpoena grant and you could have if you had wanted to at that point gone back to the district court and said you know we don't want to risk the supreme court changing the rules why don't you give us a do over  n the voluntary dismissal with prejudice and let's wait and see what the supreme court does and you know i was an option right that is i've never seen that option exercise and i know that the district court referred to that your honor i do know one thing though when we were in the th circuit and the petition had been granted lily moved to this court to stay the proceedings in light of baker being granted and this court denied that request so this court actually felt that it was proper to proceed with the appeal and in fact it was our position that unlike baker for example here we had multiple issues that were dismissed by the co appeal for example the injunction relief was actually dismissed by the appeals thought position was regardless of how baker was going to be decided the merits of the actions that were non voluntarily dismissed should have still had had been opportunity to be ruled on the merits but i think the fact that this court itself allowed the briefing to proceed notwithstanding lilly's requests to have it state speaks volumes that that we were in the right to pursue legal the reason i ask you to start with henson is that it's obviously on point in terms of at least superficially it's on point in terms of the posture absolutely but there are one of the distinguishing features potentially is that the parties got together by stipulation two to dismiss the claims and our court seemed to place a good deal of weight on the fact that if sixty be relief were denied there the plaintiff would essentially have been deprived of all of the benefits of the bargain it struck with the defendant but saddled with all the burdens and not just seemed unfair in the posture of that case here of course there is no stipulation you actually had your opponent fighting tooth and nail to prevent you it's pretty rare that the defendant says please do not dismiss this case against us we want to litigate it right so you kind of had to go in with a whole different set of expectations than the plaintiffs in think here a lot of times the courts for example the supreme court looks at those stipulations and says well this was not really an adversarial process and therefore doesn't grow that was one of the basis as to why the courts do not like the voluntary dismissal here is actually an adversarial process we rely upon as i said twenty years worth of th circuit precedent wanted to be before the court i think the fact that it was done in motion for dismissal versus a stipulation i don't think should have much bearing because ultimately the intent was the same in both litigation is the intent was to end the litigation but the risks the risks that you were taking on it seems to me are somewhat different because you at least if you are sophisticated as i'm sure you are would have recognized that there was some risk that the rule that you were relying upon would not be set in stone forever and could be changed by the supreme court in fact it was quite ripe to be reviewed by the supreme court as you found out just a short time after the dismissal so you went in it seems to me recognizing that there was a risk that this tactic you were going to you know you were justifiably relied upon our case file at the time but you knew there was a risk that that might be the rug might be pulled out from under you and it seems to me the defendant certainly put you on notice that if if nothing else they might think this was the case to take up to the supreme court and if the supreme court ultimately ruled against you you would be out of luck so you kind of rolled the dice thinking that it was better for you know it's better for our clients not to litigate this to the bitter end we're going to take somewhat of a chance that this rule might not survive but we think it's worth it and unfortunately as in life sometimes gambles don't pay off so i guess i'm sort of less sympathetic to your position by the court to the defendants in any of these situations whether it's done through the way we did it or whether it's done by stipulations defendants always argue there is no jurisdiction and we're free to raise those arguments with the th circuit so the parties in henson and in  this case are in the same position regardless of how they achieve that voluntary dismissal you are going back to judge walker's point i mean in hansen the courts the key question is justice must be done in light of all the facts absolutely and it just seems to me that the fact that judge wad for it is putting out there for you is is really distinguishes this from henson it's just strikes me that there is a big difference between the parties agreeing on this course even though a defendant is reserving the right and the facts here where you lost two trials you had another way you could go the defendants are saying to the judge don't do this it just it just strikes me is this is a different situation if we're looking at justice must be done well if i can only address a few things and unpack a few things that one that the two trials your honor are not relevant at all those were two draws and a personal injury action that just happens to be in front of a judge wilson at the time that this class action was they were not part of this class action and that's one of the views of discussions we are errors that the court committed  cases that were in front of him with this case the hexham and herrera cases were personal injury litigations and had nothing to do with the class action going forward to build those plaintiffs raise different claims and want and they went to  because for various reasons they lost that has no bearing on the issue here ok here your honor i think the fact that while while i appreciate that here today was a adversarial process and there are a stipulation the facts are the same simply put your honour's had baker been in existence had the law been what microsoft was today there's no way we're done this it would've been a suicide mission so and that's the problem we relied on merit of your position i suppose would be stronger it seems to me if you basically didn't have another option right but you had another option you didn't have to dismiss the claims and to take the appeal you could have litigated to to t he end and then taken to appeal from the final judgment so you chose you chose between two competing past one fraught with risk whether you realize it or not it was there and the other no and you chose you said you know it's better that we not litigate this in the end let's take a chance i respectfully disagree your honor because if you look for example hands and they took the same risk there was actually another case and unpublished decision torrent which because the way that the law was changed midstream there's other cases that we cite sue for example connelly where the district court actually granted a rule sixty so we are not alone your honor this is what we did every other class action  litigant in the th circuit did up to the point that baker finally i think it was decided it's very common practice it was law i know and even enhance on the one i think the request but it seems to me for you to prevail here we have to basically say ninety five percent of what we wrote in henson because it was quite a long decision was totally irrelevant we should have just recognize that every single plaintiff in your in your client's shoes who of veiled themselves of the baker remedy  or the baker tactic should get sixty really and that's the end of the story but instead we went through quite a convoluted analysis it seems to me going through all sorts of factors that are not all of which are present here in order to finally say on the facts of that yes the plaintiffs were entitled to relieve one you know you just want to short circuit not at all i want to i want the phelps and henson factors apply the relevant phelps factors and henson factors applied and if you apply every one of those factors towards or heavily in our state so if we go through the factors change of law hands and held it out thought it was either neutral or slightly in favor of the plaintiffs i think the seems to hold and what we said though even though we said it barely favored the plaintiffs different and here is judge bennett pointed out by the time you filed your reply brief there was a pending sir petition but and then do what he felt was relevant because not even the defendant not even little i'm just saying what we said and hence and that's why i say you want us to basically ignore ninety all what we said all i'm saying is what we said and hence and we pointed out that it was relevant there that there was neither a pending case on the merits nor any pending circuit that teed up this issue for supreme court review you can't say that in your case i i said well that is a slight distinction factor i do not think that it changes ok what about the statement in your reply brief in which you acknowledge i'll just read it to you i'm sure you're familiar with the language you go ok so what about that seems to me that's another distinguishing factor because in henson we said no the plaintiffs understood that their case would be over only if they lost on the merits of their th circuit appeal and specifically said if they had said what you guys said the analysis might be different and there i mean they were looking at a stipulation this was a statement in a reply in an argument setting and we were basically trying to distinguish some of the arguments that were made by the defendant your honor i don't think that that statement alone is binding and i don't think i think it could be interpreted in different ways  this simple matter is we rely as we're entitled to as courts have said we relied on established circuit precedent on or you want to have forty five seconds that might reserve the right or my thought of course i'll give you a couple of minutes from something which are all right let's hear from your the district judge has really at a pearly stage of their case thrown out large parts of it they have circuit as have twenty years of plaintive stun before them and so that's the natural thing it seems to be for any pla 's lawyer to do in that case the argument that oh my gosh someone filed a cert petition oh oh i should just change my entire strategy or think that now there's a much greater risk of my strategy being thrown out because someone filed a cert petition seems to already been granted but that's not what we're dealing with here so for the st point of the supreme court in this court i've said as a general matter rule sixty b isn't use to give relief from a litigation a strategic decision that goes wrong so while i might agree to some extent about should the circuits issue really have that big of a difference i think our position would have been prior to henson is that they were on notice and they should have known and if that is all that is your position make sure i understand the point you were just making and forgive me for interrupting is it your position that if someone takes the strategic position that every reasonable plaintiff's lawyer in the world would have taken in their position that nonetheless if lightning strikes and  case where a court has granted rule sixty b relief where they have determined that what the plaintiffs want relief from is a is a strategic decision is i think the cases of laws on our side for that but i don't think the court needs to go that far i  get back to the importance of the circuit titian it comes up in two places within hinson and what hinson says is that when considering the nature of the change of the law we need to take into account whether the extent to which plaintiffs were on notice or should have been on notice that the law could change and what henson said is at least at the point prior to the filing of a cert petition the plaintiff should be able to proceed assuming that the law and the circuits not going to change but once there's a case pending in the supreme court and it's explicit hinson whether on search or on the merits then the risk being accepted by following that circuit precedent needs to be accounted for and if you look at what you know there's a lot in hinson to unpack even on the like nature of the law the change a law that what the court kind of the way it framed the issue is whether the plaintiffs were blindsided by the change in the law or whether this they took a strategic choice that they should be held responsible for and so the discussion about the importance of the pending serp attention i think maybe plays into that at that point can't say you're blind sided you know the microsoft decision they cited it in their brief they knew it was coming along what i think in some ways what made microsoft different than some of the prior cases this court had had where it is allowed in recognized jurisdiction is that the court found an abuse of discretion in st and remanded from microsoft as far as we're aware of microsoft is really the st defendant who is in a position to challenge to it but a chance where the outcome was affected by the exercise of jurisdiction and so it could go to the supreme court so the case was on the supreme court hinson clearly distinguished on that ground but even moving beyond that to howard this is a different issue but how are you prejudiced given that if search had been denied you would been before the th circuit on this procedure that was then allowed so you had no expectation that the case accept it is that their case would be over if this court lacks jurisdiction that's what they said in the reply brief that the court likes jurisdiction the appeal will be dismissed in this case is over in contrast what really hinson the stipulation what the court waterways focused on the only thing that the hinson plaintiffs stipulated to is if the orders were affirmed on appeal then their case would be over the stipulation itself was silent as to what should happen if the court like jurisdiction and so i think it troubled the h  nd we had one of those which is a case in which we thought had very little merit but the theories they were advancing as they say in their briefs has the potential for billions of dollars of liability so we wanted the finality after the dismissal of the appeal we showed reliance on it then we took action on it because this was a potential large liability we released our f c c filings released information about this case in june th teen our ten q the l this was important for lowly because of even a low probability risk when the risk is potentially billions of dollars you want finality and it was it was a very unusual step counsel i have a different question one of the factors that the court and hence and discussed was the reliance interest in the finale of the judgment and henson seemed to discuss exactly how eleven dollars about making that determination and it looks to me like obviously the district court in this case didn't  have the benefit of hansen but it seems to me that the district court's analysis of the reliance interest in the finale of the judgment was just incorrect based on based on hands and since you haven't shown or demonstrated that you relied on the dismissal isn't that enough reason to reverse and send it back no i don't think it is i think you know henson talks about reliance interest but it also points out once it faults the district court there is relying on abstract  notions and interests and finality now look at this court's prior decisions both the decision and lopez and the decision in jones when it addressed the finality the interesting finality in the context of phelps it didn't require just reliance interest it there it relied in part on the role on the interest in finality of the victims of crime and so i think the best way to reconcile all of this court's precedents is to say when there's been a showing of reliance interest that's the strongest keep case for keeping the case closed but if you're going if this court's decision to lopez and jones are still good law i think it would be overreading ensign to say only should be relied on but i think for the reasons i just gave like lily has changed its position publicly and legally n s e c filings to get to tell its investors that this case was over and so i think you know i think if if you went that direction i think there are we have relied on the fact that this is over we wanted this case to be over because i was going back to this is a very unusual case when you  over your opposition the case was dismissed th circuit law at the time you knew the case was not correct we knew they would take an appeal but we and it was appeal fully authorized procedurally by existing th circuit law true true so how could you represent to the case was zucker's that's what you represented to your shareholders know we represented it was over in october the motion to dismiss remanded the case to the district court for further proceedings that he's never in did hear our case was dismissed our motion is as was granted the case was over and all the deadlines for taking any further steps rehearing rehearing on bob about the jury verdicts i think the most relevant jury verdict and the smiths all in the dismissal i think the most relevant case from the personal injury case present talk about why personal injury cases in general are relevant here those personal injury cases the theory of liability was the same it was that the label was misleading in a inaccurate and what the plane of said is if you had had an accurate label i would have been prescribed the drug i would have been injured and so that that's where the personal injury comes by showing that the label is an accurate i think the best decision of the four cases we cite for decision to win in our favor in footnote one on page five of our brief is judge suite from the southern district of new york's summary judgment decision where he goes through all of their arguments and shows why as a matter of law the label is accurate their main complaint is that we listed a threshold requirement of one percent and here all the adverse effects that we've seen above one percent but as judge pointed out there is f d a regulation saying that's how you draft a label and so this label that prescribing physicians is that we got the testimony from the prescribing physician who said either i understood i understand the discontinuation risk of these drugs and the testimony was that even if the label had been the way the plaintiffs wanted it the drugs they would have been prescribe own sixty b calculus in your view that we had i don't think i don't think it i mean i don't i don't think honestly is necessarily is it goes into why it shows why we were like you know it was an unusual step to say we want this litigated on the merits but we had a number of cases to show that there was a reason that we that we thought that these claims were mares and that's i guess you know if it has relevance to show why we are pushing so hard for finality and finality matters i think it is different when the parties like in hinson stipulate to a dismissal to facilitate an appeal versus a party saying we want this case to be over you know we have large potential liability that we think doesn't have merit and it's better for the company to have the closure and having a final determination and we want to proceed to take the depositions of your prescribing physician as we think we're going to show that they knew this risk and the people were misled by this label and it's you know they the study they point to forty four percent that the point to this was that that was data that was published in a scientific journal two thousand and five this is not something that like they're coming forward and disclosing people are aware of the f d a known of this the labels remained unchanged in this regard for over a decade so that's that's why we're pushing forward for a finality and i think that's an important difference between this case and ensign so if there are no further questions ok thank you counsel you could put two minutes on the clock for that fact one and also i don't think that the doc shows any form of alliance that type of alliance that phelps was talking about was when you're conveyed land and you start developing the land and so forth you know telling others that you want to you think the case is over is not reliance number two with respect to that petition question that your honor asked the fact that it was pending i think in phelps i'm sorry in henson the court specifically sent to the extent to which henson and turner should have known that the law might change in an unfavorable  procedure that the district court and believe you are also asked about going back to cordon and saying we want you know change our mind type of thing i don't think was available to us because all that had happened was a petition had been granted there was no change of law rule sixty b requires a change of law so we would have that the gone back to the district court and said we want to do a rule sixty b because there's a change of law which is entertaining we would have lost the st step because there was no change of law finally i want to note that th e reason we did what we did i mean we felt that the district court was very hostile and in a number of the rulings we felt there was a lot of error in a class action case we were given nine documents four of which were public records and we were asked to to litigate the case and present our case we felt that that was inappropriate especially given that we showed in in the litigation in virginia clearly produced scores of documents that we should have been produced in this case that would have been relevant nd a lot of discussion was made about learned intermediary one of the issues as in our underlying appeal is that the learned intermediary does not apply in a farm and in a statutory unfair competition case such as the one here in fact one of the claimants is from missouri and missouri law is on point that the learned intermediary does not apply so that was an issue that needed to be addressed on the merits by this court yet we never got that opportunity i believe henson is on point the honors i believe if one goes through each factor that hands and whines and at the end of the day all of the factors lead to are our side