think critical to the appeal here two prior class actions were filed alleging the very same facts as the actions filed in this case in both prior cases the district court denied the motion for cla honor plaintiff's individual claims in this case as well as the claims of all of the putative class members are unarguably all timely because they were those claims were told by the statue of limitations during the pendency both the district court conceded that the plaintiffs here could bring individual individual action and i believe the defendants have conceded that both at the their papers at the district court and in front of this court nevertheless your honor the district court dismissed the complaint in this action because and i quote plaintiff's class action claims were time barred under ninth circuit authority the district court held that although the two year statute of limitations  all individual members of the class that they were not told as to a subsequent class action and we believe the district court erred in two ways in that ruling first under this court's robin and catholic services opinions we believe that the district court erred in concluding that tolling for a subsequent class is always inappropriate regardless of why a prior class certification motion was denied we also believe the district court erred under subsequent supreme court authority that holds that when a plaintive has a timely claim that plaintiff may proceed under rule twenty three and that the statue of limitations will not form an impediment to proceeding as a class i'd like to first address catholic services and i'll try to be brief in core whack the second circuit looks to whether the plaintiffs were denied class certification for dispositive reasons indicating unequivocally that a class action suit was inappropriate that's what the second circuit looked at the ninth circuit adopts core wax analysis in the robin case which the district court in this case relied on heavily simply just adopt horwich standard after other robin case we have your honour's catholic services case and i think what catholic services which was an opinion of this court says is these two things number one i think catholic services acknowledges that there are instances where  a subsequent class action is appropriate and number two i think we have to look at what catholic services didn't say and what catholic services doesn't say because in catholic services i'm not sure that's what the first line of right catholic social services i read it says there are certain instances in which the prior class action tomorrow may foreclose a later class action i did not i don't think it's that there are instances in which the private class action toll i think that well i services granted classification rather than denied classification but we don't we don't believe that that's the outcome determinative issue because catholic services doesn't simply say if class action certification had been denied we would not permit plaintiffs to bring us up in class action is what important factor though to the court it was an important factor your honor but again i think in cap it services the court looks to whether the plaintiffs were seeking to read litigate the correctness of denial and i think in this case in the unique facts of this case here we look at what the district court did in the smyth case which was the second class certification denial and the district court was abundantly clear in smyth the defendant in smyth the defendants here said to the district court your honor all the plaintiffs are trying to do is really to get the correctness of class certification to dial in the first case in the second case and the district court said no the district rejected that argument class certification is always within the statute limitations whether the statue of limitations is told asks the sixty four thousand dollar question is why was class sort of occasion denied in the earlier case and here in the unique facts of this case we think it's abundantly clear that in my the district court was playing that it had not ever made a determination that a class could not be certified and so we think under robin and other catholic services that's a vital question that the answer to that is outcome determinative now i know everybody you're headed elsewhere but let me ask you this in the first case why it seems pretty clear to me that he he found that the class proposed class met all of twenty three a then he moved to twenty three b and he said hey i'm reliance you're relying on mark on fraud on the market and your experts just don't allow you to go there so therefore you cannot be maintained is awesome well i agree with most of what you but i think i think your last point i disagree with i don't think the court said this can't be maintained as a class action and a lot of the evidence or record that was before what he did or that's what he determined in dean and the and again these are unique facts here where where you have a second action and you have a second class certification motion and the defendants made that exact argument they said your honor you've already dealt with this issue you already found that a class could never be certified and the district judge said no i didn't find that that's not what i found i looked at the specific issues that the specific proof that the plaintiffs presented to me here and in on those records but he said it would be premature to strike the class allegations in that case  practical problem i have read your position and that is to prove them and one slightly incompetent lawyer after another bringing one unsuccessful class action after another and here we are five years after the expiration of the statute of limitations of a run without tolling dealing with a third or a fourth or a class action after successive after a succession of mildly incompetent lawyers so that does not strike me as a very good way to run a system i mean how do we deal with that problem i agree on and i think it's very simple all we need is one definitive ruling that a class cannot be certified as soon as that happens and plaintiff is not entitled to tolling under robin and catholic services as soon as that happens the plaintiff is going to be hit with comedy and starry decisis under the other cases under both baier and shady grove there are two other reasons your honor number one is it doesn't make any economic sense for subsequent plaintiffs to continue to bring serial class actions in the face of a ruling that a class can never be certified and there's also the statute of repose which says that after five years regardless of what has happened there cannot be another action so i think those those are a litany of reasons why the concern that the district court mentioned that you could have with litigation is really just not a problem and i think you know these are unique facts we don't see this very frequently in this in this context or other context so i think that's the that's the reason i just like to get very quickly to the supreme court cases and then  just two minutes your honor our other point as i alluded to is under the supreme court cases the more recent cases in shady grove justice scalia said that rule twenty three creates a categorical rule plaintiff whose suit meets the specified criteria to pursue his claim as a class action it's a one size fits all rule rule twenty three automatically applies in all federal actions and this is what the s circuit looked at shady grove and adopt that reasoning in the sixth circuit recently and said that a plaintiff with a timely individual claim had every right to proceed under rule twenty three and a prior class or difficult day prior class certification denial of course the statute of limitations and whether or not plaintiffs are entitled to the exception for tolling that came from the american pie case the supreme court has only spoken about tolling in the class action context twice american pipe which says that the smith and versus they are actually prove don't talk about tolling they're not going to let me see if we can establish what common ground we have or don't have with respect to all of the individual plaintiffs in this case both named an unnamed if they were to bring find that where we are you agree that the plaintiff could file individual suit if they were within the class they could file individual actions only ok or not class action so that's all good so there is to say so everyone every had sixty days to step forward and apply to become the lead plaintiff that's very unique these plaintiffs were perry unique is it unique well it's unique in the sense of other class actions don't have this notice requirement and here and as your honor pointed out they at all times vigorously pursued litigation catholic social services also speak directly to their case and i quote from the opinion if class certification had been denied and c s s five and of plaintiffs in this action were seeking to relate a gave the correctness of that denial we would not permit the plaintiffs to bring a class action citing others but that doesn't help you with respect to whether or not there is in the abstract an ability to and do nothing and here they waited that which are they waited after and in light of all of those notices not only did they wait but mr rush holt himself out on his website and we put this is in the record as an internationally recognized adviser in the field of securit litigation his job is committed to monitoring through our investigative team of professionals potential securities fraud class action cases he has caused over one hundred class action cases to be filed now we hear the word the term professional  around that is what mr rush calls himself his job is to represent shareholder interests and what was he doing he was going in and out of the stock with which on aggregate he bought after the bad news he sold he was playing in the stock he claims to be court's decision and shake shady grove and smith versus barrett it just it seems like the landscape has changed a little bit maybe a little bit but let's just end enough as though i don't think it has your honor one of the shady grove it's not about tolling at all no but it's about class actions it's about class of the good part of the right but there's nothing to tone it's a class action says if you can satisfy rule twenty three then you then yes you can file in federal court as opposed to the new york so you know one thing that kind of i thought kind of strange here is that everybody refers to a class action claim class actions are not the claim is the violation of the statute and our rule twenty three does is allow for aggregation the new york statute which is right so that's right but it doesn't speak to such limitations issues and whether or not you can aggregate those claims after the statute has run there's no tolling analysis well seems like it seems like what it does suggest is if you're going to ask whether or not these particular plaintiffs who could file an individual lawsuit whether they can still aggregate their claims and to rule twenty three right and if you look to what the supreme court said in shady grove it seems to be that that's what you look to and then whether or not as judge fletcher said a few moments ago whether or not they you know there has been a prior determination which i think is very significant here but it seems like the correct analysis is whether it's barred by notions of comedy or wanted to extend the aggregation of these claims to the class vehicle and would have at least addressed the two definitive cases that are out there from the court american pipe and crown court but the question because there wasn't there wasn't a state there was not a statue of limitations problem and court to really look at the cases compare them apart county if the first ones entitle the comedy but we leave it up to the second court to decide to what extent they should preclude the second class or the judge will say or the second judge would say well the kind of issue he went off on they didn't introduce enough evidence obviously they could have introduced more and this case shows you what the how they failed to do it in the first the and justice kagan did address the tolling case that is the supreme court case in american pie and if in footnote ten it reaffirmed that under american cuyp quote a putative member of an uncertified class may wait until after the court rules on the we're extending this out that you can file a new class action she reaffirmed that it's an individual claim or moved intervene that's the only thing she said on it anything beyond that is we're just we're trying to speculate as to what the court was where the court was going but that what the court said just like to make three brief points your honor with respect to the contention that these plaintiffs here have slept on their rights that they were not involved in the process that they didn't step forward quickly enough american type in crown court speak directly to that and those cases say that class members who do not file suit of a class action is pending cannot be accused of sleeping on their rights because rule twenty three actually encourages them to rely on the name plaintiff to press their claims i think that leads me to my second point judge reinhardt you had a hypothetical as to whether a poor class action might lead leave other lead plaintiffs in the lurch and i think that's i think that's exactly right and i think that if this district court opinion stands what it means is that every punitive class member with a claim would be forced to file a prophylactic action as the statue limitations starts to come to an end because those class members don't know how whether the class certification issue might be denied solely on the grounds that you know the counts are lead plaintiff were inadequate and that would be the very outcome that crown cork in american pipe seek to avoid finally with respect to better you know bayer was cited very heavily by the defendants in smyth that's exactly the argument that the defendants here made to the district court in smite as it related to dean what the defendant said was your are you it you dealt with this issue of classification in the first case in dean under bay or under what justice kagan says what you should do is apply comedy and started to sizes not to the opinion of another court but to your own opinion this was the district court considering its own opinion in the second case and as i said earlier the district court flatly rejected that argument the district court applied there apply the issues of comedy and started decisis and denied the motion so i think you know in closing i'd just like to emphasize as we've said the plaintiffs each of the plaintiffs have timely claims here and that the district court never definitively determined that a class could not be certified in this case and so we think under robin under catholic services under fit under bay or under say grove that the district courts really should be dismissed and we think that that's reversed and we think that that's perfectly consistent with the very rationale that the supreme court set