were much simpler than this one in the end none of what was ever reach the force merits with first case was municipal utility cut offs in this case water and sewerage without a hearing and the supreme court long flores and make final not only those things that are actually let it get it the things that could have been litigated well this one it couldn't have been litigated on the original complaint because none of the plaintiffs had ever been had their water cut decide if we were asking for plumeri injunction to have them not cut off any radiation and then you gave away claims under the new policy in the release because the release covers claims for loss or damages of any kind out of the litigation including pre litigation litigation and post litigation activities well doesn't that it was that was the first language corrected on page twenty six of our brief this is on page ten of the release clause thirty that would seem at its face to include the present claims for water shutoff under the new policy we went through very carefully in pages twenty six twenty nine brief the three release to put into this case and your doctorate document twenty on the first sentence of it says relating to plans really raised in the complaints in this action which did not include the new policy position provision of the fourteenth amendment a release any and all claims which claims relate to the actions of a ledge in this case to a violated the due process provision of the fourteenth amendment whatsoever they haven't done anything that had not they didn't even know and instigated their new policy yet right that was during the litigation so why isn't that covered under the clause that releases claims arising during the litigation to institute in november and december starting december whatever came into play of two thousand and fourteen they're about to start cutting off people's water under the new policy we want them to stop right so you're asking for relief against the new  policy and then you resolve that claim in this comprehensive global release where we didn't have a claim we didn't have quite what you were asking for really if we asked for relief that's the same thing but didn't you also i mean it it correct me if i have my dates from one of the plaintiffs did allege agreement that's the last person to be in this class that could have any kind of a claim and those are the people who fired who sort of sent who signed the release both the name plaintiffs and anybody who got there fifty dollars are subject to a release but only up to ten thirty thirty one fourteen by the agreement of the parties at least mine which doesn't have that date meditation in fact it's very expansive and covers activities in gauged by the federal waiver for says contractor waiver when there's a constitutional right involved it's for we read this thing to be no waiver of future constitutional rights because of that october thirty first two thousand and fourteen doc date you can try to infer if you like we don't agree but you could try to infer that oh yes we're waiting anybody even though we don't know who they are and it will probably won't be us you know you're waving the rights of the class and that includes constitutional rights and constitutional violations covered within the scope of the release and there's no law that prevents that for the class well except the class and the class only the people up to earth nobody it who had their water cut off after october thirty first would be in the class right but what you're representing now two members of the class one of the named plaintiffs and one of the members of the class and the question is you know whether the claims that were covered by this judgment includ the president claims well as far as we're concerned since they didn't know that they would have water cut off under the new under fork well you know the new ordinance neither one of them did in the fact didn't them cut off until year later one of the many one for five months later there was no way they could have intended to be doing that under the new ordinance which which was something that just had to happen and nobody you're on it i want to answer your question first because i think it was important you noted or asked at my colleague whether or not they conceded that the claims were the same and for bill one is they weren't for m and as the district court recognized in almost language verbatim to the demotion plumber a junction in for bill one the complaint that was filed by the plaintiffs in this sport bill two action was identical in every way in every respect there was the same claim that there was a per se due process violation under the fourteenth amendment as a result of the policy that was in place that is she was put before the court in fort go on and it was decided as a matter of final judgment for purposes  when the parties and into the settlement agreement the settlement agreement was approved through the proper procedure under federal rule of civil procedure twenty three and it was entered incorporated in a final judgment of the court saying that it was indeed a final judgment and that it was a final appealable order that's what occurred when the second lawsuit was filed in this case it was to bring a claim that had obviously by all accounts been settled as a part before the one there's no question and the consignor recognized that the operative facts of the complaint in fort bill two are the same as those raised in the motion for plenary injunction the second motion for plymouth injunction regarding  absolutely and that there is a distinction i think that's very important between how we identify members of the class and how we identify the claims that they have brought and that they are releasing as a part of their settlement the class defines those individuals who are entitled to relief it does not define the claim that they have raise or the claim that they could have phrased the settlement agreement specifically is what does that and the court has been right to acknowledge that it is a very broad based settlement agreement that included not only things that happened prior to the litigation but also during the litigation like the an act of the policy and post litigation that defines the claims that were brought up the definition of the class defines those individuals who are one entitle to relief under that settlement agreement but also more importantly for us those who are impacted and barred from bringing a second litigation to fight the same issue that they've raised and so the definition of the class doesn't define the claims that were raised or could have been raised or that were dismissed as a part of the settlement agreement it defines those individuals who are bound by that settlement agreement and that clearly includes both of the plaintiffs that are built they both were parties to that initial litigation  representative capacity as the representative of class and the other as a class member so there's no doubt and we've cited case law that makes that clear in the restatement of judgment second section forty one that makes very clear that when somebody is represented when their interests are represented by another person and that matter settled they are bound by that settlement that's the case here and it's particularly the case here when you're dealing with a class action where the dictates of rule twenty three mandate that a district court be very careful in terminating whether or not it's appropriate fairly reasonable agreed to a settlement in fact as you know that's the only way that a sudden that in a class action matter can actually be proved in finalize is by the court using that the dictates of that rule applying them to make sure that there has been a fair adequate and reasonable settlement of the and more importantly that anything that is clearly illegal any conduct that would be clearly illegal does not continue so inherent in the decision to approve the initial sort of an agreement if what will one was a determination by the district court that the issues raised in the second motion for plenary injunction regarding the new newly an active policy of the town were not clearly illegal were not clearly in violation of a due process claim if they had then it would have been inappropriate to stipulation which i agree to get that claim against the new policy away for purposes of the class not somebody who moves into the village later who gets their water turned off and at the new policy is obviously free to challenge it i would have to agree with that your honor that they would they would not have been a member of the class they can certainly argue that they're not bound by their would and it's correct that the court didn't specifically enter a judgment or make a decision about the constitutionality of of these new policy per se all that i'm going to say is that as part of the procedure for approved in the class action settlement the court did in fact have to determine at the very least that the policy wasn't clearly in violation of due process but otherwise it would have been stated during the initial argument the class action was allowed for settlement of a class action on exactly the basis that was here despite the fact that there's a constitutional claim involved indeed the constitutional claim of the right to due process was never waived by either of the plaintiffs in this case to the contrary they had the opportunity through for one to enforce their due process rights by litigating that matter to completion that day and the district court saw to be prudent and they accepted that  bargain and they so they enforced rights they didn't wave and they didn't waive any constitutional rights and that's why the constitutional waiver aspect doesn't come into play when you're looking at rest you rested a card as simply as the seventh circuit has has put borrowing words from the supreme court a rule of public policy and of private peace and that's exactly what the settlement agreement was also designed to do as a matter of public policy it is the continue legation of the us to preserve judicial resources it gave some sense of finality to the league ation in understanding what was going to happen and it was meant to protect fort bill from being the exact situation they find themselves now here before you still arguing a case that was resolved years ago none of those goals have been met here the goals of russia caught in fact they continue litigation of this matter is in defiance of those goals it doesn't advance public policy nor does it provide private peace it doesn't make anything more predictable in the course of  class representatives can bargain away the rights of the class the claims of the class and settle and resolve the claims of the class it's not necessary that each of the class members well but eventually consent i'm saying the point that brings up the question of whether this is a knowing waiver or not it doesn't have to be that that whole line of cases that doctrine is just not in play here this is a class action in the named plaintiffs and their counsel you could give away those claims on behalf of the class without a knowing