considered branded title clemence now the five hundred thousand dollars vehicles that were part of the w fraud emissions scandal settlement included a smaller group that was never settlement agreement in these evils imaged to them some to a great extent where they're not register bowl others that are drivable typically because they've been rebuilt so of the five hundred thousand class members there  thousand that are branded titles vehicles we represent five hundred vehicles about with about one hundred and seventeen or eighteen owners specific has about two hundred dollars of the vehicles  agreement substantive modifications the agreement says you can a minute and modify or expand the provisions of the agreement but you can only do it in two different ways you can do it either before the fairness hearing in the after the whole business done by a non party it was never adopted by the court and so therefore ready because there was an agreement of the parties going to court approval we don't have any right to complain about the nd half of the always from the beginning contemplated that the branded title claims those holding it really delivers binding options of these types of vehicles that they would be excluded from the settlement  these vehicles back to an operable state you know apparently intent of many of these consumers is the profit through participation in the plains program some of its consumers have taken the position that because claims on these types of vehicles are not expressly excluded in the class action settlement agreement they should be eligible the agreement says the report continues the class action agreement expressly excludes claims by consumers with a vehicle that vehicle in the rebuilt and the in core report goes on to say that with respect to rebuild those may be invincible salvage the well that's what wrong with the district court's ruling that that that that those changes were a modification well your honor which one with that is the very idea that   but the the ability to to go through a holistic review is ones that understand the plain written word exist on the document rights are impacted by a complete reversal of the general frame throw it out it shouldn't bought nobody's rights for affected by that the rest of the administration will go over the ten billion dollars has been what's good is that there is no further sort of fight so less is just more all the others if they for why they chose to drop out and do nothing but right now there's no inhibition to completing this wonderful settlement we're going to ask that the court look at the plain meaning the plain language of the unmodified startlement agreement and come to the conclusion that volkswagen should be ordered to pay a full buyback invest with the modification is that there is evidence in the record before the district court and before this appellate court which establishes some very important things that makes the district court in the record of identical forms of title that have been treated totally differently by volkswagen during the same time period the mauldin time period then is on it before december of two thousand and globalisation attesting to their reliance on the plain meaning of the settlement agreement and documents of title that are identical and during the time frame of just amber to around june of two thousand and seventeen volkswagen was processing and pay all forms of title branded salvage without distinction and it is during that time period my clients attest in their declarations and have submitted evidence that in reliance on volkswagen processing and paying those claims they purchased other vehicles a volkswagen paper brand this position they're protected by rd party beneficiary from a change such as this or the saying that california law overrides the modification of terms of of the settlement which as i read it does not require notice notice to the parties to the class well your honor the yes the cap the settlement agreement incorporates and adopts california law hope it shouldn't change it it should follow the choice of law provision some intent or at least knowledge of the existence of the beneficiary in order and to benefit at person you people already been in existence when this was in the original agreement is me already that they do so which leads to the nd request which is that once the modification is viewed as an error we invite the court to look at the current the language of the contract as a matter of law and where that core applying the tax and structure and plain language of the clean air act bound that volkswagen has potentially continuing and even if it's unexpected in an liability the plain language text and structure as a matter of law can lead to that outcome that is precisely the situation you have here your arse with the plain meaning plain language rivaled wagon with full buyback and restitution that's the one problem i have under the plain meaning of the settlement agreement that modifications are allowed without notice to class members only if there is an approval approval while any appeals are resolved and the defendant needed times names program but here in order to facilitate the goal of compensating consumers and getting vehicles off the road or fixed as quickly as possible b w agreed to start implementing settlements mediately after they were approved but as a result and as a result of all the complexities in the agreement they built in the parties built in various provisions to provide some flexibility to the administration of the diffs district courts order without needing to reach appellants contract or equity arguments to the science class and the amounts of money and issue which is in the thousands of dollars to tens of thousands of dollars for any made and communicated to ask member and then from there the parties anticipated that there would be certain consumers given the amounts of money at issue or to get out who would want to contest those decisions so the parties agreed on a rd level of review which was to be done by a court appointed claims review committee which we refer to as your c v and empowered that committee to make final eligibility determinations and the relevant main which in the agreement is that paragraph five point three spoke initial position is that this is not it's an interpretation of the agreement and wasn't a modification of the agreement and that these would be challenges to individual that remember but even if you characterize this as some sort of breach of the settlement agreement the parties also anticipated as well in the agreement itself and there's a provision that specifically provides that only past representatives are authorized to assert reaches of the agreement and the rationale again is similar to the rationale for making c r c just visions i know which is that if every individual ask ever that has a claim to nag whether they characterize it as a review of their i am or a breach of the terms of the settlement agreement is permitted claims claim that their rd party beneficiaries of the of the settlement agreement and therefore have rights too i don't think the rd party beneficiary doctrine applies here because claimants are there alleging that their class members and there's some complexity here because it's not like a normal class where you know you have one claim you could have somebody who is part of the class who has some vehicles that are eligible and some vehicles that are not eligible and we didn't get into sort of that level of complexity in the district or for the purposes of these arguments we didn't contest that they were class members in which case a rd party beneficiary doctrine when even apply at all but in any event even if it did apply it wouldn't help appellants here because the contract itself says that it can be modified without further notice and so while those rd party beneficiary cases that were cited by change in circumstances or on providing notice to the clacks members and that finding was based on a couple of factual findings by the courts are the district courts finding that any officially reflected in the claims supervisors report and there certainly adequate evidence in the just report record as the parties really as to the parties required to work with them provide information on request to the claims supervisor which produced reports after the information from the parties throughout the claim but to the extent there is any question as to whether the claims supervisors were or constituted a sufficient readiness surely wasn't an abus discretion but if this court has a question i think it would be something that should be sent back to the district court in the st instance and seemed to consider on a full evidentiary record because the parties actually could provide a separate written document if needed  counsel mentioned holistically together with the intent of the settlement and all of the provisions that are designed to gather to compensate harmed consumers people who are harmed by the diesel emissions issue we would argue that this is and a modification it's really just where a fixation of terms which had to be done throughout the settlement because of the number of different circumstances that came up and you know counsel pointed to the different categories that for in the cream supervisors report which i think is a little misleading because the claims supervisors report not only talked about the proper taishan of the agreement itself but how claims are processed what types to the documentation needs to be provided because a lot of this really boiled down to the administration of this domain and what kinds of documentation it has done so there was no effort to create subclasses here it was really an effort by the parties to interpret the agreement as it applied to two different scenarios and again back to the important point here watch was that the parties were and i don't think that without providing additional notice and the parties the class members were all and they were also on notice that there may be a modification of the agreement in order to comport to the intent of the agreement it didn't require further members it only required approval by the district or which is what happened here and so i take it you would you would argue that with the big picture that it's not good it would not be good law to say that parties can't modify and agree that there once there has been a  settlement because that would that would just go away and make everything a lot more expensive it would and it would make it would make it impossible to achieve a settlement like this where the hardys literally agreed th documents were signed at the end of june and the party started implementing the agreement if the end of october right after the court approved the settlements i have some not figures here if it's helpful at all so by about a month after the settlement with was approved which was just again a mere months after it was entered into two hundred and forty one one thousand four hundred and fifty five dollars claimants had already submitted claims and volkswagen had processed one one hundred and sixty five thousand  address appeals by class members and also to make modifications if they were consistent with the intent of the parties as approved by the court you would never be able to achieve a settlement with the speed achieved and view i mean we accept the for purposes of this argument we accept that it was a modification our view and our intent and effort in interpret in the bremer was an effort to interpret the agreement and we still believe that the that the settlement provisions in the entered into at the same time as the partial consent decree with d o j and the california m e f two and so when you're talking about the goals of the settlement each of the different settlements achieve a typical xin different ways but we don't think that we need to reach that because if there was a modification it was perfectly appropriate it was consistent with the intent of the settlement and it was approved by the district or so if i understand you are saying that you don't think that this is a modification in the sense that it changed what everybody intended in the st place but even if it was a change it was contemplated in within the the way they are used to do the job that's correct your honor the intent was always to compensate class members who are harmed by the diesel emissions issues and to be sure there is there are provisions in the agreement and this is a little bit unique to this agreement to that allowed a class member to effectively sell their claim so somebody who was harmed by the diesel emissions issues and was deeply offended by the notion of driving around alluding vehicle and didn't even want to wait the three months or four months that it took to pay tens of thousands of dollars to people who bought with full knowledge of the diesel emissions issues vehicles that were of a depressed value because they had been totaled in transferred there to their insurance compan get paid some amount of compensation but not the full amount of compensation because they turn the vehicles over to their insurance companies and if there was an intent or the vehicles to go from the individual harmed class member to the insurance company to the insurance option to the car dealer who's going to sell it back to book slavin i would presume that the settlements would say that you are the more efficient way to achieve that buyback would have been to just buy the vehicle back to referee from the consumer who had total that in the st place was the harmed so i want to briefly address just one other argument that was made by counsel which was the course of performance expectation of repeat performance here this program was designed for a claim by claim review of individual members the vast majority of claims were submitted by individuals less than five percent ribbon submitted by those branded title claims that had been paid comprised less than point four percent of the planes paid by may of two thousand and seventeen which we would submit is nowhere close to being sufficient to establish a course of performance that would require rebuilt so we bought it rebuilt it and why those members of the class have been denied relief remains a mystery to all of us there is no there is no way these folks ever could have understood that ok it'll just be happened here the consolidated claimants rely join the operative time they should be made to bear the cost of clearing up of volkswagens pollution mess these vehicles remain on the road the issues continue as the hillsborough case points out whedon's liability may continue we appreciate that they wanted everything to be done for all time in the past but that doesn't permit them to make errors of law that are  unbelievable it almost sounds like they're arguing that the contract is illusory and they can make it to mean whatever they want whenever they want and that is contrary to challenger and and should not be supported or held by the sport they promise to buy back one hundred percent of these vehicles they their interpretation of the agreement as finality means nobody genevieve's you their errors is patronage of decisions by judge prior that have been approved by this  the interpretation of contract is a question of law and that is why we are here to say that the unmodified summit agreement as a matter of california contract interpretation covers the consolidated claim