court i just want to live by the way i hope to reserve five minutes at the district court heard here at least three respects that i'd like to give you an overview of first it concluded incorrectly that the complaint third instead of examining the evidence the district court expressly held that quote plaintiff is essentially bound by her allegation that the amount in controversy will not exceed five million dollars are that year is basically lifted so now have a year to remove it if she amends her complaint and demands more than five if she were to amend her complaint within a year we could seek removal if she amends  i'm entitled to ten million not five where remember the laws that used to have thirty days removed is still that way i believe that is what i want to point out your honor is that but there's no limit on the amount of can progress that's correct if humans are complaint for which you can kill remove it under the class action fairness act that's correct so that if you know if this case progressed all the way through the state courts and you got three years out of four years out in a case like this and all of a sudden the plaintiff was willing to acknowledge you know pleading that the amount does exceed the jurisdictional amount in theory the defendant would have an opportunity to remove that because you'd be he would be he let's say a class get certified in oregon law you proceed all the way down to the end and you have most of the people of bailable most of the class members decide that they are participating in the lawsuit however you have argued and there are some cases that support your argument that where the attorneys fees are provided for by contract or fights statute so that i english rule case as then attorneys fees are not treated this cost something that has always struck me as funny about an argument is that in england the  well your honor if it's ok i'm going to identify that and sort of taking the time i will identify that here before the end of my argument with a view of price if i can remember yeah i'm sorry it's in our brief here somewhere and i will certainly do that but but that and i are you specified in the complaint and i think that it's easy to be misled but i think if you analyze what they've alleged you see is specially in there where you see that they have not specified amount in their complaint on the first page in the caption  indicates the aggregate claims do not exceed five million dollars and on paragraph four of the complaint says the aggregate aggregate total of claims lead here in not exceed five million dollars first point that is not a specific pleading of damages that could be two dollars that could be four million nine hundred ninety nine thousand but then you go to their complaint to their prayer i think the important point here if you go to the prayer and knows what it says it says where four pointed and members of each class request the court awards such damages in total less than five million dollars as set or for unpaid wages and penalty wages so michael bennett says award plaintiff's attorney fees and suits so if you look at what they're actually asking for it is not at all clear that they have specified amount below the jurisdictional limit if anything is more likely than not that they specified an amount honor but i do want to point out that even if even if attorneys these are not included you still do not have a specific pleading such as this referred to and of regular brae go it's a situation where the issue is up in the air think it might have been your opinion i think the court upheld upheld federal jurisdiction looking at the evidence and based on the mission that was made by the attorney for the plaintiffs that the total amount of the claims exceeded five million dollars so i think that i think that basically if you look at the you know the laws summarized in a bragger recently anywhere you look at it the court is required the district court is required if there's a challenge if the case is removed and challenge a district court is required to look at the evidence based on some standard ok you know it might be a legal certainty standard which you didn't figure was that it was a mechanical where the court simply read the  if that answers answers your questions will be cut but that's the point the important point here is the stroke order no matter how you look at it now the result you may conclude the result was correct but in terms of analyzing the trial court did not apply any standard to the evidence that was submitted the trial court made a mistake the trial court essentially said i'm not going to apply a legal certainty standard i'm not going to apply a preponderance of evidence standard i'm not going to play any standard for the evidence i'm going to come up with a standard that has heretofore never been heard of in this circuit or as far as i know any other circuit and that standard is i have to accept the pleading unless there is evidence and i think if you look at the cases that the crown court cite they don't support that it's almost as if he just confused more and less and then flipped over the the good day standard for legal certainty that the bad day standard but in any event did not apply any standards of the evidence what he said what i've got to accept and that's simply not the law of this it's plainly not the law of the circuit at the very least the district court should have been required should be required or or this court preferably could do this in the circumstances but should be required to to look at the evidence and apply a standard and it's our position that under these circumstances as i said that there's there's there's there's no there's no specific that the amount of controversy then the defendant has not borne the burden on move them proven that the amount of controversy requirement is satisfied and we have and then has the burden of proof that we don't question you don't question that the defendant i think we've proven it in this case by showing that if you take the word we're in a situation here where we have the the we have the the we know the size of the class we know how many people left us bank during this period of braggadocio the court said that these create difficult problems in the context of a class action fairness act we know that the congress and acted a rather extraordinary expansion of federal jurisdiction and we know we that they did it because primarily they wanted to get as suits when the complaint is filed the class is proposed class is set and then after the class is certified then individuals have to indicate if they want out but it isn't it is an opt out one by yes and then there's another notice down the line a second notice where individuals rasta provide specific information about their claims how is that different from rule twenty three i think rule twenty three is well i think that rule twenty three is i don't think that there's any  for individuals to opt out i'm speculating about that i'm sorry but i don't think there's any evidence there's any option for them to opt out so they are going rogue tries to remedy that problem but here's the big picture i hope the court understands and why i think the standard should be different or there should be a special standard and half of that at least allows the court to look at the evidence and i don't know a parade of horribles i could give you a long one but if you think about this all the plaintiffs in a class action case and by the way these are not  attorneys sitting here these are the posed plaintiff's attorneys and ms loudermilk is not the point if she is the last representative she's the proposed class representative if you let people make allegations to say that's just flatly under the  what happened iverson say we want all our class actions in federal court it's just that we want the big ones over five million but look what happened and finger at the plaintiff after all create controversy and is a master of the blame and decide how much money  to man you're saying well they're only demanding less than five million but they could be entitled to more than that it is so very be able to remove it i mean you know here's the reason we need to be realistic here is crystal clear that these plaintiffs these proposed plaintiff's lawyers determination distinctions summary judgment the sanctions the cygnus that inmate's everything is done and then at the last minute we remove it to state court to federal court and as i understand in this circuit the basic rule is that you take that you take the cases in federal court takes the case basically where it is unless you know some of this is standards are different but the best of the bottom line is you're all the way along in your four years or five years into this case and it becomes clear that the claim courts in oregon well you're not apparently i mean the point is congress wanted these cases in federal court only they were only over five right and so that the nub is figuring out how much they are and the nub is whether you have to ask yourself did congress intend for this to be pled around so easily didn't wouldn't congress at least the thought that if there's some reason to suspect and some evidence that we've come forward with and that this is really a twenty million dollar claim potentially wouldn't congress have wanted courts to give some scrutiny to the evidence just some or what congress of just wanted to say rubber stamp because if you can run if the court has to rubber stamp the amount alleged then there's none of these claims are going to get certified nice giving us these things are going to get removed plaintiffs are going to file the claims and then and then they know darn good and well that for years from now the court's going to allow allow men that the court would basically have no choice but to allow amendment  organs you know under oregon law because at that point they've got it so far along and it becomes clear that there's more the claimants than there is money and all of a sudden what's the court going to do and all of this all of this problem occurs not because of an allegation that the actual class went with counsel has filed or that the actual last represented us about the bias the proposed represent out about the same time as goldberg at the opera i don't know but goldberg did frankly our but i do want to i do want to make an additional point here and that is this and i don't really know i've never been able to figure out how to fit it into the analysis and maybe it doesn't but you know the plan that's another reason that you should allow a district court to scrutinise evidence in this regard to look at the evidence is because even proposed counsel and even proposed class members have an obligation have a fiduciary obligation or something of that nature to the members of the class and there needs to be some scrutiny over someone just walking in a filing a complaint like this i'm not suggesting it's the case with these people but these folks burden on the defense either i think the burden should be whether a claim will exceed that amount now if you if we can prove by a preponderance of the evidence as i think we have that this claim that they say is less than five million dollars is really is really twenty or thirty million defendant if you want to show that the jurisdictional amount has been that in order for it to be in federal court how do they go about showing well in this case they can't because it's hard for i agree you state it in the sort of the you know the obvious k case where it's millions and millions versus five million so that's sort of hard to answer but in general as i understand the law and you could count up the numbers of the actual plaintiffs are going to have and what their numbers are going to be and i'm up with some certain theories as to how they have critics see five million dollars you know you could well in response she would say they're not going to be  l real bad for you i don't know that we do your honor in terms of i don't know whether the cases that case is avoidable to be honest with you it may or may not be depending on the other  it in terms of the overall propositions though it does not mean that this case therefore airco is over five million give us your best shot if you are if you're if we trying to figure out what there is on the other side there's a complaint that you don't want more than five million  problem i think little less than five million dollars we had a couple of cases earlier this earlier this week on attorneys days i thought i thought that oregon did it differently i don't know that they do it the same in every feature and ok is there anything that's unique about the way to our laws and lawyer contract with this client or the court awarded attorney fees or one third of the total award is what matters is the amount at that counts toward the five million against the defendant and i'm looking now at the organs to fifty five two hundred correct and it looks like the attorneys fees are in addition so if you're on paid wages are or million nine hundred in english rule jurisdictions like alaska sometimes the lawyers in fact are contingency because it's fair to the client otherwise the lawyer can wind up with more money than the client as sometimes they contrac and i guess that in terms of what the trial court did here let's say that the defendant did not show that this case is for more money than the five million a less than five million that was pleaded that was there to the meeting say it'll come to less than five million so i don't i don't think what i think that the trial court read the complaint properly to say we're limiting everything that that we can get under five now suppose the complaint were to be construed and that's a nation is there any way it seems to be written you're asking for less than five million whatever that means that might mean three hundred fifty thousand dollars a month plus attorney fees might mean another hundred thousand maybe it means four hundred fifty thousand under federal law in oregon last under federal law there would be more money has to be a fun and it wouldn't go away under oregon law there would be a fine but in order for anyone to collect it they'd have to come forward then but there's another step you don't get the money unless you then come forward and make a claim so the chances in oregon of that all of these thousand dollars and ordered the diverse jurisdiction i feel that you're not willing to do that or i soon that you're not willing to waive damages of five million dollars in order to ensure jurisdiction in a in  to do so to at a at a very very quick period after that would be subject any kind of sanctions by this court and i hope not i'm just curious what what should a i'm having a problem answering that because for a couple of reasons and one is that under the law you are entitled to seek damages under five million in order to defeat federal jurisdiction and the other problem i understand the allegations of the complaint and understand what defendant has posited it does not appear that this is a case in which what you're describing is likely to happen