universal life policy so there is an investment component that is within the policy has an accumulated cash value in that house value is invested in mutual funds or securities of different types and then there is also a term li component mortality charge there are charges you pay a premium part of the premium you pay goes to your investment account and part of them go to various charges and starved for maintaining the policy and mortality charge which pays for that term  component of the overall policy and that's what we're telling charges in this case and our contention is that in the mail has breached this policy by not charging the cost of that term wife  but has it has added what are known in the industry of loads or various expense charges into that with mortality charge in addition to a separate expense charge that charges out of policy your complaint is not limited to the two post two thousand and three cars yes our class definition is based on the statue of limitations which goes back to a point in two thousand and five which is after the effective date of the settlement  your claim it explicitly releases all claims connected with the insurance policy in the in a cow action or in any way related in home or in part to the transaction why that not is one of our colleagues often said game set and match because the transaction as used in that or must be read in context of what the transaction is at issue and that's i guess one of our fundamental disputes here is even though we define the transaction as the policy itself and if that is true there are there are no limits on what why isn't that a reasonable construction however given  of the language in the least labor and settlement there was a huge undertaking here and there are all virtually always is in a class action settlement to sweep every possible conceivable claim int settlement why isn't that a reason to read it and i think that it is a reasonable reading with respect to claims of conduct that occurred at that point but as the law is clear it does not apply to future conduct that a release agreement cannot give a and that's true and i don't think that that precludes the claim in this case because their order we actually don't know in this case when they started adding these loads of the mortality charge that we never got to the discovery phase but let's litigated it obviously releases all charges and claims related to any charges assessed under the policy but if it's given the broad range of applying to any charge under the policy the day after via was settled at least the solar approval was approved by the court you know mel under the reading of that laser it could have taken everybody's investment account and just drained it as a mortality charge it would have been a clear breach of the contract but under their reading that breach is covered by the release and therefore they can do whatever they want with this policy but no question it is this policy by which i mean it's the same policy it is the the the one point i guess i would like to make is that none of the class representatives in that case hell they variable universal life policy could not have a sort of this plane because they didn't own that plane your allegation rather freeman's allegation in the class action complaint relative to the alleged inflated mortality charges is that they began at after the commencement of the policy and he purchased the decision in an array prudential insurance where we said that a class representative can enter into a settlement that bars future claims by class members even though the preclude marketing selling servicing and administering permit and term life insurance as well as the civility despite the breath of that complaint  the search here is inconsistent with the position that the parties took before the court at the approval hearing which they said that it did not release future place for future conduct the trial court itself acknowledged in the so that any claim based on the same factual predicate that occurred at the time claims that have been asserted that could be a sort of the time war yet a sort of in the future based on that conduct at that time can be covered by a broad rel but going forward conduct that occurs in the future cannot be covered by that release and in fact a class notice informed the class members such as money for him if in this case that this release did not affect their ongoing contractual rights under their process notion that says what is it what is fair to preclude an absent class member from asserting in the future and that's one of the really difficult issues that always comes up when we go s adequacy is money for even the plaintiff here was an absent class member what he received was the notice the notice told him that that settlement did not affect is existing contractual rights under the policy if this release anticipated statute of limitations defense into their complaint what they allege in their complaint is exactly what you have smith referred to that beginning at or after the commencement of the policy in other words today during the time during the first term of the current hollo settlement today is the very first time we've heard anything about the notion that the charges they intend to challenge cost insurance charges they intend to challenge somehow arose after the fairly firm grasp of the language of the releases very clear and the numbers that you would agree however at least there's nothing that explicitly recites mortality charges in the language of the broad release or in the language of the settlement  very specifically refers to cost of insurance charges and there's a good reason for that because your honor the very hollow complaint which after all was a comprehensive attempt to lift a cloud that was over for a variety of reasons hovering over elementals policies that have been issued for years and years have brought together a variety of claims including a claim that expressly alleged excessive cost of insurance charges so it's hardly surprising that when m l sought to put this to battle predicate standard explains why judge lynn harris who reviewed the complaint and the release at the time in two thousand and five looked at it very carefully considered an argument specifically addressing whether the release was too broad and said huck is pretty substantial value here there is adequate representation m l c entitled to peace for what amounts to roughly seven hundred million dollars in settlement value and he provide it i do think i believe one of the questions maybe is i think it's just never asked about whether there's a this is a collateral attack once you understand once you understand that the charges that are at issue here statute of limitations means you can only recover for a year two thousand and six and year two thousand and seven the point of the release is to lift the cloud over the conduct that m l was engaged and the way it charged these policies and so once you say well you're allowed to challenge that going for will of course and i'm else going to continue doing what it's paid for the right to continue doing going for these are life insurance policies that go on into the future that's that's the very purpose of of entering into a settlement like that and i think that slover you asked about the policy of settlement and that just leads right into the final punctuation mark which is really going to cast a pall over class action settlements chill entering into heaven the first place you imagine going back to a client and saying you're paying a substantial amount of money a huge chunk of which goes to plaintiffs counsel and plan of counsel retains the right to use that money to finance the next class action against you that's going to be a tough sell so unless you have any further questions just recognize what about what about the constitutional issues well i mean any validity to the i don't think there's any due process issue here your honor and i think i think  what what that is is you know you have to yourself was there adequate notice well the release was reproduced in the notice as i said the release specifically says cost of insurance charges was there any conflict of interest in the class well just let us look the bat and said no there's certainly no reason to believe there's a conflict of interest and in fact we've not heard anything throughout the entire litigation here about a potential conflict of interest on the on the scale of that involve the manner in which certain life insurance policies were sold serviced on and minister it went on it went on and been certainly administered would include i think these kinds of charges and again the complaint was ha about excessive cost of insurance charges and the release pacifically said when you sign on to this you're giving up the right to sue for these sorts of things the general american case in the eighth circuit is i think particularly instructive in this regard you know there you have a claim about disclosures settling the case and saying look if you agree to sign on to this you're giving up the right to sue again and you know just as as just pointed out what's on reasonable doubt telling somebody when they sign on to a substantial settlement that about a particular insurance policy you look at it figure out figure out whether you want to if you do you're giving up the right to sue for conduct related to that policy and the circuit said that's exactly what happened here the i do think that what in an l is asking for would be a shocking change in the law if this were rather than an insurance claim if this were a minimum wage claim and there was a large company that was not pain thousands of employees minimum wage slaves and they have a very broad release that takes care of minimum wage and off the clock and vacation pay and terminations bed and all of those things that the release would wipe out and i have no problem that clearly a release can be brought in take care of all those planes into my future times know the next day the employer has to pay a minimum wage they can settle minimum wage claim up to that point in time but they can't have a release and then fifty years later say this employee has been here for fifty years we don't have to pay him minimum wage because we settled his claim fifty years ago i think that would be a shocking change in law your honor and  i think that is the true distinction between the future conduct and really this case boils down to when the when the courts say that only future conduct survives and in the else says future conduct includes any conduct that began during the settlement release period and we say it starts over the next day at the minimum wage example is the best example i came up with where just because that employee was employed during the class period doesn't mean that they the employer no longer has to pay the minimum wage going forward the i don't want to respond to that limitation period which is maybe somewhat related that is built into the class definition though i think even if it's not because the the standard is clear that future claims for future conduct cannot be released the limitations period would be an issue for the class definition even if we had not included but it but it is in fact in the complaint  i've used it for many many years i can't imagine what a defendant would be thinking if you're right if you're right that the next day valuing the exposure as of that date for example if you are ready know how what's the exposure well the united know the other i think that the danger falls far more on the other side if the mediation you reach a tentative agreement but before that fed signed this ultimate agreement they go out and institute a whole bunch of brand new unlawful practices and start that and then the next day sign the settlement agreement and say oh all these are present conduct not future conduct because they began before we signed this only braman again i think that would be a shocking change in the law and something that the courts have not anticipated in determining the future conduct can't be barred by release thank you thank you