throughout their small family business and sugarcreek ohio that transports perishable goods along the east coast they purchased eleven of navistar struck six with the untested and dangerously defective engines and ha pages of scum with navistar taken twenty plus depositions and experts and they were in the homestretch towards their trial and they will have a case when they were told that their claims have been picked up and forced into a class  talk about is the reasonable indication stay in defense of you before before you get too much into this topic i wanted to just put on the table one of the things that concerns me about your position which is that this record seems to show that is early as july of two thousand and nineteen well before the opt out deadline you were all aware of this one hundred and thirty five million down to the number the one hundred and thirty five million settlement being proposed in the class action and i find it astonishing actually that you wouldn't at least check the docket on the class action prophylactic lee opt out since you clearly want your own litigation in ohio court and it makes me worry that your reason for not doing that might have been this one way intervention  concern that that the district court articulate so so so why shouldn't you be held to the notice the actual notice that you had of the of the class action proceedings and your honor well st of all we do not you know how class actions work this is a twenty three b three class action the way not to be a part of it is to opt out not to send some counteroffer to somebody else or to continue with settlement classes they'll be a lot of preliminary work that goes on discovery and the like sharpening of claims and then then there's the settlement not that many class actions go to trial and the settlement class is all sort of part of the process of resolving the case which is why rule twenty three dollars now has quite a few subsections directed at the fairness of that giving people another opportunity to opt out even after if there had never been a certification there's a lot of protection and the court reviews these things so i guess i'm really concerned that that you didn't follow up on something getting what comic notices we did not we did not ignore any simple rule deadline what about the notices sent to your corporate address were there a couple of regular postal service notices you district court considers that and found as a matter of fact that the notice was effective teacher klein got it and so immediately i looked to see an argument on your behalf that that finding was clearly erroneous but you're not making that argument as i understand it you're just asserting the opposite is there any reason basis for a conclusion that the district court's findings clearly erroneous  well i don't recall x or i didn't make a record of x but that's perfectly consistent with x being true right one that's one reason why we need a district judge to resolve questions of fact and there was a finding of fact if i recall there was also a finding of fact that your client was invited to submit email addresses and failed to do so do you think that's clearly erroneous i don't  move vence drasko and s and c trucks had actual knowledge of the settlement but made no attempt to follow the procedures to opt out and they had a lot of notice the court approved notice of settlement was  bloat to two of their valid addresses by united states st class mail and those envelopes were not returned and the presumption under the law is that they were received and the judge found that they failed to rebut that presumption on top of that the movements themselves admit they heard about the settlement in the trade press that was in june it was all over the news you could google it then and now and you would pull up the settlement website with the long form and there's more back in june as well movements council admit that they had actual knowledge of the one hundred and thirty five million dollars settlement and they knew it involved the same and trucks at issue in the ohio action that yet at the same time they took no actions to opt out and when it went to the district court for relief from the january order the court did not apply some wrong test or some bright line it reviewed five filings a substantial record that was presented before it and then it followed burns the hour rot long time th circuit case that instruct it when court considers whether to permit the late filing of claims it should only permit a lay claim when the equities on balance favor the claimants and in its fourteen page ruling the district court did just that wayne all of the factors and deny movements motion those are the facts and they drove the decision and there was no abuse of disk pressure i'd like to consider st the motion as it relates to the conduct in the ohio is a geisha and the reasonable indication standard the counsel has talked about the district court did not abuse its discretion in finding that the movements had not effectively opted out by what we consider simply litigating in the ohio action trading settlement offers except the class action standard is earns the al right and its controlling the reasonable indication standards not the law  circuit and there is seven circuit precedent stating that a court must apply considerable flex about flexibility when they're analyzing and deciding whether a class member has opted out when they haven't even tried but even if the reasonable indication standard applied and it does not the outcome would have been different here based on the facts as found by the district court this just her court didn't just rubber court did express as judge would indicated legitimate concerns about the oneway intervention on the part of move it who made no effort to communicate a desire to opt out to the court movement's conduct does not have a reasonable indication standard even if were that the standard so miss miss shows are the one thing about that strikes me you know if the timing were such that they could stay off from the sidelines litigate the ohio state case see if their projections of a of a generous outcome there turned out to be true if they won you know take the larger sum of money and if they lost get back into the class action if that were the scenario i would really be worried a lot about one way intervention there was though a deadline for opting out was there not you couldn't just sort of hang out forever that would that's just not the way these things work and that deadline would have long since expired by the time you trial was over that's that's right the opt out deadline was before the final approval of the sun and the trial was not scheduled until tw that but there were a number of people who did not opt out that had ongoing litigation and they did choose to file a claim all of those people could have came in the back door and and there are some real risks by you know creating a standard that's more liberal you know you've got this situation where you might upset analogy of a complex adjudication you've got you know a potential floodgate if more parties decide well they've got it why don't i try to get it now  or opt out now depending on you know what it is a scenario that they want it could it could play some significant rate you know you know judicial resource concerns but more to the fact i mean navistar paid a substantial amount of settlement here it was bargaining for finality and certainty and not this continued trickle through and as the judge also indicated your honor it's prize the court of information not to know who's really opting out at the time the judge needs to decide am i going to go forward with this settlement oh i think that's a most serious problem with what went right here because the judge doesn't have any idea who's in and who's out unless the court itself is notified of the opt outs not just some private side deal going on with various parties right movements to hang their hat on in re brand name prescription drugs and to us that makes no sense because the final settlement order there it was in june in that case there were other claimants trying to opt out just as drastic as doing and they were denied re only party that was given relief was randall's food and randal's food had to follow the procedures by opting out on time it's just that they sent it to the court instead of the address you know address that it was supposed to go to under those procedures movements here took zero steps they received that court ordered notice and just kept litigating thinking that was enough and in the northern just it's long been the case that the pendency of an individual action does not excuse a class member from up to now and as the district court did here they didn't create some new bright line inflexible require it to another  circuit case see under as and specifically noted that sanders provides helpful guidance in weighing the equities markets no bright bright line the court was using it to weigh just as the weight of their equities in the case the district court also igs them at the evidence and found that the settlement administrator and navistar did not meet they did meet the obligations set in place relating to the e mail notice and as a rule twenty as this court has that rule twenty three does not require defendants to exhaust every conceivable method for identifying party now when it comes to the final arguments i'm going to pass it over to appeal and then the nd is there actual substance of the notice that was sent to class members so turning st to the scope of the appeal we'd like to begin by stating what is not in dispute before the court right now the district court held that this was an excellent settlement appellant does not challenge that holding the district court found notice was appropriate to forty five thousand two hundred and twenty and excuse me twenty four class members  ant challenges only notice as to himself in other words there is no dispute that notice was appropriate to forty five thousand two hundred and twenty two dollars other class members out of an abundance of caution we just like to stress that the supreme court has held the even had appellant tried to raise these issues he would not have been allowed to present them to this court the power and this is the devil in case from the supreme court quotas but power to appeal is limited to non numbers who have objected during the fairness here again there is no dispute about these issues i don't understand appellants to be disputing this proposition but we don't just want to begin by making that clear turning then just very briefly to the substance of the notice we would like to stress that this report was correct in finding the substance complied with due process st the short form notice stated unambiguously you will release your claims against defendants it  very clear on this point and secondly the long form notice when even further and said quote you cannot continue to sue if you are part of a lawsuit and advise then one part of a lawsuit to actually speak with their lawyers precisely for this reason and to the extent that appellant is challenging the idea of a summary notice and a long form notice that has more detail we would respectfully note that the manual for complex league asian actually recommends this procedure to increase the chances that people pay attention to that st notice and then seek out more information and this is a standard procedure very recently approved by the th circuit in there on bonk i and a opinion u