the district court we're going to let them combine fashion we have a district court case from the patent case from the district call what we have a veteran's appeal the government i'm going to address that exact issue because that's the question then becomes in this case that wasn't an issue in in these case that was cited the brig's first united states case the judge is which side was a case where the government just offered the name plaintiff his relief no relief to anyone else and the in the trial court said if you offer that relief before the class certification motion is filed then the whole case is over including class action and the court referred back to that decision and relied on that decision in sleater decisions that led to the dismissal this case it's true that it added there are some other wrinkles there as the court has pointed out and the question in this case then is can we distinguish this case from hits and i think that the answer on the class cases is no i want to first though talk about the individual case and whether the into the case that the case would be moot be dismissed and you didn't have to give the plaintiff what he would have gotten after trial you don't have to give a judgment didn't have to give him court costs didn't have to give him attorney class case question of whether the class whole class is moot by this hundred forty nine dollars the courts again said it was and relied on the fact that it was filed the payment was made before the filed a motion to dismiss was filed and in that case i think that it's clear that if the pits decision were applied that the class certification would have been effective as of the filing complaint and the case would not been moot but let's turn first to this individual case and whether going to ask you a question a factual question which may or may not be terribly important but it's under left unresolved at least as far as i can see in the record the hundred forty nine dollars check it was tendered i take it through counsel i assume you and oh was we don't have anything on the record that suggests whether there was a formal rejection of the tender or whether there was any form of the acceptance i soon that the check was not cash but there's nothing in the record that suggested some have to check your behalf like right now  there is some suggestion in some of the cases that it matters as to whether the offer or tender of a a and amount requested by the the  date was rejected or accepted what do we do with a situation in which it was not cash but there was not at least so far as i can tell of formal rejections of the tender well first of all i think the cases say that the only difference when it did when it matters is if the offer is accepted well there's language it depends on how you read the cases i read them fairly carefully w respect to this issue because this puzzled me that you had not either said yeah they are neck and most of the cases somebody will have either said yea or nay so the case is dealing with it is a binary issue but your case is one in which the check seems to just sit there and you didn't say no we will take it well is that correct by the way is that if i may get the record down right in this case there were two checks sent first one hundred fifty dollars check that was rejected in court opinion talks about fact that we opposed the motion to dismiss which i think is inherent in that is the fact that it wasn't it wasn't accepted as being rejected i thought quite frankly that there was an e mail which i which if you look at the facts in this case it's obvious that that didn't happen so i think that but but i want to turn also not to that question about one hundred forty nine dollars but a question of can you move a case an individual case by offering one hundred forty nine dollars seven months into the case and the trial court believe that this case said that there's a lot of other cases that say basically you have to offer the plaintiff everything they could have gotten after trial but when you class represent represented on it is enough to load the case when it's clear that a classification motion will be filed but it hasn't yet been filed and it seems to me it's a fair reading of pits as you've heard is that it doesn't move the case at least where the tender was rejected i i would tend to read it's that way and that's the way you're arguing that pitch should be read however what lewis stands for it seems to me is that rather different proposition courts are doing in their decisions and what the court said what they wouldn't points out is that if the there's two kinds of movies one is issues one is as personal statement and what he points out bank opened in florida and try to force florida to let them do that well then the law changed federal law changed and there was an impediment they could open that bank and so the case was moot and they said well i want to give terms freeze and the course that well no you're you're you're issue here is moot and on the other hand you have a personal statement and what professor hall points out correctly is that when there's personal issue trying to get at the heart of this issue if this is one of two questions that we struck to me here there was a payment i take it to a very large number of potential class members with respect to the u c d p p part of the case that judge also referred to has enough of a payment to not just pick off the name plaintiff but to pick off the entire class i think was his his way of characteriz assumptions which may or may not be true but only assumption that that payment made to all potential members of the class one hundred fifty thousand or so with respect to the uniform part of the case  that was enough to pay the cleans of each of those members does that part of the case remain not moot because of any remaining potential claim for attorney's fees or cost by the name points in your view if you know they were switching from the individual thing that i want to talk about but i am very low i know but i just because this is is to me at least this is an important element of the case with respect to the role of the attorney theon cost question but what pitts says sero why sandoz all these decisions say that if you have a timely filed class certification motion it relates back to the beginning of the case what that means is they readily is when you file a class action case you have two different interests involved one's a class interest and one is the invisible interest and if you think of certification at that time the question is if you had a certified class and the defendant said ok i'm going to send off a bunch of checks to people and i'm going to send you a check plaintiff and judge i want you dismissed the certified clas with the judge do that or with the judge say well what it what this is a class action certified class actions are really looking at the when you relate back you're saying at the time that happened the case is certified and that's a key so what what would it in a certified case can you do that can you say judge i'm going to send off payments all these class members and i want to i think we understand that but in your case there was no certified those is that the one you're going to follow and if you follow that line then what you do is you laid back the class certification to the filing of the complaint so if you relate back to the filing to the filing of the complaint then when these things happen you treated as if it's a certified case made it may ask you another question getting on to the question just lowered rates before and i think we understand your position with respect to the individual claims but this is just laurie alluded to was not a case in which only one tender in in may this was a tender to what probably a third of the class or at least it was an audit of a third of the class and the taker to thirty two thousand people in your view if we assume that the case would be moved in assume with me for the moment that the case would be moot if everyone in the class had been paid  what do we do with a case in which the government has paid more than just the name plaintiff but fewer than all of the class members but is acting with the intention of continuing intention to try to resolve all the other claims what do we do with that circumstance in that case so i take it your answer is to that question is the same as your answer to the individual on which is in the interim cases not to be is an act which alas individual plays with small claims filed their claims against the government anywhere in the country in their local u s district court that claim in this case with three hundred dollars if you can file a three hundred dollar claim your fine views three hundred fifty dollars and what what the government's position here is and which i think is very important for this course jurisdiction the government's position is that even though in this case you were given the complaint governs given complaint two months before it was filed so they had plenty of time to pay the money they litigated the case actively for seven months after their after and then they sent combine mounth this three hundred dollars and if you were jurisdiction is destroyed by that then every case out there every little talk or ask case that is certainly all the ones lower than the filing fee will never be filed because the plaintiff can have his case taken away at any point may please the court my name is elisa hunt on the half of the united states there are two appeals before this court today and the district court should be affirmed on both appeals i will just each appeal in turn on the first appeal the district court dismiss mr russell's claim has merit and should be that he didn't send you back a copy of the check or a notice saying we don't want it when it was quite clear he wasn't accepting but he never argued in court below that he was rejecting the tact and i would point the court to the holstein lot that it was one third of the class at that stage in the case there was only complaint that alleged a class and i paragraph forty eight of mr russell's complaint said that the class he was alleging of the audit covered that exactly now that is the group that is the forty six thousand adjustments and thirty three thousand refunds the other numbers thrown out there are other contracts that the exchange addressed later that were not part of mr russel twelve percent but not everyone was due a refund and that's because we're talking about the link when that someone might start over the exchange a thousand dollars have gotten a hundred dollar adjustment in interest but that doesn't mean that they were do or we aren't so anyone here when this adjustment was down the re you say they covered everyone who was within the scope of the complaint i mean i understand there are some except groups depending on which plan they were under and so forth but your assertion is that the complaint did not cover those other subgroups that incorporated the one hundred thousand additional wallets i think this is an important issue because it's a difference between having made a tender to some of the members of all members of the class have a few credit agreements that provide that the permissible d p p finance charge is between twelve percent and prime plus four point seven five percent per annum all class members now that was the alleged thousand to later but those were not part of mr russell's class allegations now what do you say to the argument first of all do you accept the proposition that pits would answer this case if the tender had been made only to mr russell now let's set aside the question for a moment of whether he turned it down or not let's assume that his conduct should be treated as having rejected the tender would you agree that pitch would require us to reverse the district court i think more directly on point i mean those pits and wise in cases like that and their main concern is with the defendant strategy of targeting a name plane up in order to a class action that is the concern that is talked about in all of those cases suppose that there is a partial payment to some number of members of the class let's say half the members of the class and that may or may not be the situation depending on whether you are right about the way you've characterize the extent of the play but suppose that a tender is made to half the members of the class does the pits rule still apply in that setting and if not why not i don't i don't think it does it's certainly certainly not squarely on point because the concern there for to the policy of only should we follow pits and say well it might apply in the following sense in that you might say the government has concluded that some of these people are entitled to a refund but by no means as many as the class complaint a eges and therefore if you see the case is moot as soon as the government pays more than a handful of the claims then the real dispute doesn't get adjudicated right as i mean i don't think that issue needs to  here because it was the class less than one but if you're wrong about that let's assume for the moment that that mr fisher is going to get up and tell us that no complaint really did cover the whole hundred fifty thousand people and if we conclude that he's right and you're not how do we deal with a partial what amounts to a partial tender well at the district court mr fisher made that argument below and the court gave mr russell three months to locate an intervener on those other contracts and interventionist and i that's not before the court but the court did allow three month period between the dismissal order and entering judgment but i would also in terms of the legal question go back to two the cessna case and the garrity case and it's very clear that a plaintiff must have a life claim at the time that the class now the district court said that mr russell claim is not capable of repetition yet of meeting review that is still an exception that can apply at this early stage apart from any cost action question it does not apply here and that rationale well it does if  take the view the mr russell is in the same position as some of the the plaintiffs in these other cases such as pits and you view mr russell's as being a having a transitory claim because it is subject to being eliminated by the government through a picking off device now i understand your argument that this is not a pick off case but the at all analysis applies to pick off cases per pits that leads us to the problem of what do we do about the fact that you pick off some but not all this is not that and i understand your argument is all we did pick of everybody but if you're not right about that but i don't think it's fair to say taking off when when it's a comprehensive audit that the defend it conducts to voluntarily correct the problem to follow but suppose the comprehensive audit had produced the decision that one hundred fifty people were entitled to payment but no more intervene or they might bring their own class action and the district court ruled prior to pits the district court's decision seems to me the rationale of the district court's decision seems to me at least potentially having been  overcome by the analysis so the nights are getting hits so looking to what the district court said seems to be problematical for you have to have a different rationale maybe it is that there were a lot of people who were picked off but that's if that's the rationale that seems to me is not the rationale that was employed by the district court well the district or didn't rely on the fact that there were thirty thousand papers here plaintiff they were unable to because they had also received a payment and so they were out there searching and conducting a search so it seems to me that the pits decision can could arguably be extended in this situation because the actions of the government not only picked off mr russell but also deliberately picked off other exchange retroactively up by the lowest minimum rates under that set of contracts let me let me ask you before the voluntary nature of the settlement and i just have another question in that regard hopefully just one more but  you say it's it was a voluntary settlement what do you mean by that it was it was something done outside of the courtroom case my understanding of lewis is that the supreme court was saying that if there is settlement of the basic that a claim for attorneys fees does not save the underlying claim and what i mean by our knowing claim here that's the little talk or act a contract damages claim that claim is moot and this hypothetical interest in attorney's fees does not seem that cl i'd also on the attorney fees if you like to direct the court to the pecan in case the kind of versus west virginia department of health and human resources and in that case the supreme court rejected third party but also includes cases in which one of the parties to the lawsuits has conceived and terminated the will suit in a way that produces success for the plaintiffs but not by way of that they are just released that settlement negotiations didn't think hey this is the settlement negotiations that big us now the court talked about a judgment versus a contract to pay and that's that's the context in which the court was saying well in judgment we understand why you would want to judgment over just a mere contract agreeing to pay but here there was no contract agreeing to pay there was a payment a payment was already made and the simmons case just simply doesn't apply to the facts here anything further now i would also just urge the on the second appeal the court denied mr russell's our will sixty two motion and i'm happy to entertain any questions but that is subject to an abuse of disc that there is an assertion that the that was paid actually is or is a significant it's a number of payment i guess around thirty dollars to mr russell but presumably if it's similar to other members of the class it would be not a fair amount of money as the government looked into the question of whether there is merit to that recalculation or reached a conclusion with respect the recalculation as to whether it has merit or not if you know feel free to say it's outside the record i mean it is outside the record the record stands with with the twelve percent right  and there are many reasons why that analysis fails as a matter of law ok thank you miss this three minutes republic forty eight that is not true that is not the paragraph that defines the class to class if i'm sorry i just thought i had the complaint here but i the class definition includes everybody who  was charged from six years before the complaint on and what they did was they cut off everyone after a may of think two thousand and two and they didn't give anybody after that and they apparently didn't understand what the class was and so they looked at this paragraph forty eight and said oh that's that must be the class and when they decided to do this audit which was incidentally only in november of two thousand and nine so they first found out about this problem in november of two thousand and seven when we filed the brig's case which has these dental cleanings it been doing voluntary audit to see if they could do something and then  we did this audit starting in november and they only went back six years only we're trying to look at who we could get in this class that we're trying to say oh we're going to be the good guys and take care of her but it is twit who can we how can we get rid of this case well paragraph forty eight with the language the class of persons breaks in brussels represent is defined desk i mean it sounds like that is the paragraph where one finds the class as being defined right that's pretty  subject to these charges from a certain date within the last six years so it includes everybody who suffered these charges with the last six years they they only included the people who are subject to charges up to two thousand three so they didn't clued everybody from two thousand and three to two thousand to two thousand and ten now did they include those people in the second round the one that picked up the additional hundred thousand people what they did  that they'd be the last that they include lot more people whether they included the whole class when you must you must think that they did because they you come up with a number of people in the class by editing their two numbers of the people  your right to collect fees from your client your class and that's what happens in a class fund if the defendant just goes off and pays people then the court has died that opportunity in the class mechanism is severely hampered in any kind governmental efficiency they cut one hundred thousand checks for five hundred dollars and get them express mail the next day do you still have a claim for attorney's fees i think it's more difficult case and that's why i pointed out the fact that we gave the government this complaint  be a different cases one it's important to me at least to know what your answer it's well your honor i think that if the case was if if you follow this line of cases the logic in pits and the other cases you treat that case as a certified class from the time the complaint was filed and if you do that you have to look at if you have a certified case how can you get rid of a certified case and you can't get rid of a certified case by sending out checks to everyone for a number of reasons you don't know the court wants to maintain who'd you pay how much did you pay did you did you how about all the people that the checks came back wh you go out try to find them and how about the fact that this is a common fun case and the plaintiff has a right to have all those people pay some of their money and any and all those issues would be destroyed and the