class and then a crown cork the court held that the filing of a class action tolls the statue of limitation as to all members of the class and then american pipe tolling applies to a class member who chooses to file an independent action the there is no suggestion in either of those cases or any supreme court case that by filing an independent action a member of a putative class somehow could forfeit american high totalling however the sixth circuit panel and wiser pratt held just that by filing an independent action prior to the class certification decision reduce the caseload on the federal court although the court didn't note any data or evidence to that effect respectfully circuit courts don't have the power or the ability to modify supreme court cases particularly a supreme court case that's interpret ing a federal rule which has the force of law  i'm sorry i'm not i'm not sure i'm with you well the second circuit has said that the least back of the tenth circuit has said that american faced with whether we think the tenth circuit or the second circuit has panned in the more persuasive analysis and that's the end of the day your most critical problem told and there's a lot of case law to the to the contrary in fact we devoted a circuit opinions on one of the position and one of which is no right you're right that's true the  the indy mac decision out of the second circuit respectfully yours he's a very flawed does decision and ignored a lot of case law that on point and it's we actually devoted probably five or six pages in our reply brief but i don't know that i can go through all that but  with you that that's that's a critical issue in this case there's a big problem in that even if even if you agree with wiser pratt and that's not overturned the trial court erred in finding that fall that says that in order to be within the scope of american pie a case has to be very very similar to the class action cases the reason being that the defendant has a right to know on day one what the complaints going to be about and can't be blindsided down the road but in this case the canal the arbitration and the alabama case the rights case are very very different cases from the class action complaint that the arbitration case for example the only funeral brought against morgan  was based on the individual relationship between ward and keegan and related to the class action and couldn't be brought in the class action that the arbitration case asserted only state law claims and didn't and couldn't sue most of the defendants in the class action because they weren't finra members so it's a it's a arbitration case would not have been the type of case that would be permitted to have american pipe tolling and for the same reason it doesn't make it would make any sense to say was the kind of case that would trigger this forfeiture doctrine and why it the same is true of the alabama case see it was a total in state court asserted only the state law claimed didn't suit most of the defendants who were in the class action and ultimately was deemed by the alabama supreme court to be to have been a would be shareholders derivative case and ultimately it was dismissed on procedural grounds so that those cases but neither of those cases can are close enough to the class action complaint to be within the scope of american pie tolly and  claims that are brought in arbitration or in state court could could be at all relevant to the wider prout doctrine because it's all about the impact on the federal c about wiser pratt not being properly triggered by those cases that are so different from the class action would still be a basis for reversing the dismiss the rice case was not and was not disposed on the merits there was no holding on the merits and with respect to the arbitration awards the defendants failed to stab between morgan keegan in the class defendants and also the with the finale funeral home didn't get its day in court which is necessary for the doctrines to apply because arbitrators obviously didn't decide couldn't decide claims against these other defendants that they couldn't bring it please the court peter frewen on behalf of all of the police in this case for the for purposes of this argument this court as judge clay talked about is bound by wiser proud wiser  decision by this court several years ago wherein it stated that american pipe tolling does not apply when an individual files their own lawsuit effectively a parent can pipe is there to protect individuals who have not filed actions but if you fall if you take action on your own you effectively lose american pie totally and that is what this court has said but the the facts in this case are in fact much more severe than it than even wiser prout which would  suggest that wiser pregnant only should be followed but that this is even stronger than was her pride for a couple different reasons but first i want to address one issue that was raised by opposing counsel which is do the claims have to be exactly the same and i think we can look at the wiser pratt decision in and of itself in wiser prot the two class actions were under federal law they were federal securities transactions the case that was pending in wiser prout was in fact a common law case brought under state law and what the court concluded with the six or concluded was since the claims were though not identical were similar that american pi tolling would not apply and in this case we have much more than simply what happened in wiser pratt what we have in this case are individuals that not only have sued once outside of the class action but  multiple times and i think if we look to the one of one of the suggestions opposing counsel has is the fact that there's a circuit split and we would acknowledge that there's a circuit split but in this circuit wise are proud of the law but if we look to the other jurisdictions in the decisions that they made the facts in this case would actually support the same decision that judge maze made and i think the most telling case is the state farm versus bolster off case which is out of the tenth circuit and in that case wiser prop was not followed by the tenth circuit because what the court said was effectively what these plaintiffs are doing by filing individual cases is they are filing early opt outs and by early opt outs yes the statue of stations hasn't run up until the fine time they file their early opt out but in this context and what happened in this case is these individuals filed cases back in two thousand and eight and two thousand and nine those were the early opt outs so if we apply even those cases though i go against wiser pratt and we adopt sort of the standard of state farm versus ball straw under the reasoning of that case of it being an early opt out these folks opted out when they filed their first actions in two thousand and nine when they filed the cases in this case in two thousand and thirteen even if you only if you gave them the benefit of of american pipe until they follow their first action which is what suggested under the ball struck a sort of the tenth circuit if you gave them american pipe tolling for that period of time it would stop when they follow their first action and in this case with a father second third and fourth action even under those cases that do not fall wiser prat this case would be any judge mays would have been required to dismiss this case and i think this court should confirm can should confirm his actions  down below but most importantly i think the issue here is the issue of wiser proud wiser pride is a decision of the sixth circuit it clearly says that the that american pipe tolling does not apply if you file your own action and in this case these individuals filed their own action so under the i think that you can look both to wiser pratt and again i think you can actually look to the to the to the language of the cases that of the other circuits that have not followed the wiser production you can look at in re hartford you can look at state farm vs bolster often i talked about the tenth circuit each of those cases acknowledge that american pipe and its progeny deals with the issue of if you don't file if you follow an action after class or advocation is either firmed or denied it does not deal with that time frame before class sort of occasion is affirmed or denied all of the cases that have dealt with this issue have knowledge the fact that the u s supreme court's decisions in american pipe and its progeny don't deal with that timeframe so with all due respect to my colleague here i believe that he is misstated what the law is clearly the circuit courts can decide issues that have not been decided by the u supreme court while the u s supreme court has determined that the tolling applies for that time frame after the decision of certification or non sort of occasion there is nothing in american  before and whether you follow an independent action before and frankly i think so i think with all due respect his his statement is an accurate but i think if you look to the analysis in the purpose behind american pie polling i think it explains exactly why it only applies to those individuals who file as an individual action after class or vacation or after classification is denied and that is the purpose behind american type pipe tolling is to protect individuals who have not taken any action and who are who are sort of relying upon the class action to protect their rights and in a circumstance where in an individual's following their own action they are not seeking the protection of american pie toeing they are filing their own action and the other purpose behind american pie polling and i think we've if we look to both wiser pratt as well as the other cases that discuss the issue the main purpose behind american pipe in part is to protect those individuals but secondarily to keep the courts from being inundated with additional lawsuits and i think it this case is the poster child for the opposite of american pie told these individuals fall cases in tennessee state court they filed cases in alabama state court they filed arbitrations and now they filed their own independent action in federal court they were in no way relying upon the class action or the american pie tolling that might apply to that class action where they filed one two three four separate lawsuits so with all due respect again to my colleague i do not believe his statement is accurate if you look at the case law that has interpreted whether you look at him or whether you look at this own court's decision in wiser prout or if you look at the decisions of state farm versus ball straw for in re harper or any of the others so with that said i understand i still have seven minutes left of my time but unless the panel has any additional questions i think this court's precedent is very clear and i respectfully  on that issue i'm not going to go into the other three issues simply because i think wiser proudest dispositive in it deals with all of the issues and unless this court deems otherwise i will see the rest of my time thank you it points please first of all it's totally unreasonable to talk about anally having opting out when they file a finra arbitration that they had to do contractually that that's the only form they could go into to bring those claims against morgan keegan because in the find the fine print in the contract that they signed when they open their counsel that's the way we're going to ad disputes so they don't have any choice and to call that an opt out of the class action particularly with all the differences that it had with the class action is just illogical and unfair deemed to trigger forfeiture in this case the the difference is the significant differences between those cases and the class actions takes it out of the number if you will of that's all i have thank you very much ok thank you mr falls and again thanks to both of you for your arguments today and the case will be submitted