representing mark jackson so you're roughly looking seven minutes and then how much time do the two of you wish to see for a model three minute or so seven minutes ten minutes three minutes as an initial matter the record supports the conclusion that appellant tory party timely opted out of the class action settlement her affidavit explains you followed the instructions on the settlement website to opt out and then without a response from both wagon or the text of the settlement website in evidence there's simply no contradictory evidence in the record that she could opt out online makes sense she received an e mail not regular snail mail that had an attachment that she had to view divines and then that directed her to a website where she could then enter her information i thought it was common ground that the i understand there may have been something consistent was said but that the class action  notices you had to mail it is not right that is correct either but it was but yours and also identified the website so if there was something you're saying there may be something inconsistent on the website correct that is one of the reasons why we believe that ultimately we're going to be able to show excuse one of lack in fact i only mention that tory party believes she opted out to say that the trial court didn't make any findings one way or the other it simply assumed that she did not opt out despite admitting it was unaware of the actual contents on the website but as we stand here today you're on her we don't think we need to remain to answer this question we understand that the time for both we're going to have responded before the trial court entered it quarter had not yet expired and perhaps there could be some argument about whether the website gave some other method for opting out but such an inquiry just isn't going to be necessary because even if this court assumes without  there using the website the facts still so that her conduct was excusable and made in good faith ultimately she made a motion to the district court based on excusable neglect federal rule sixty can extend that how many days late not filed immediately because i had the first obtain pro harvey to you had to get all the requirements in order get that order that order came out on a friday and literally the monday morning the motion was on file that was the soon as possible moment that it could be filed  clean diesel engine allegations and we continue to actually live the gate that claim even after the before and after the opt out date clearly her actions indicate that she thought she had opted out that we intended to think to retain it clearly hindsight is twenty twenty she should have printed something out he should have preserved a record but we don't have it your honor help me understand this is a practical matter she wishes to opt out she did not satisfied with the terms of the settlement that she would obtain as a class member what is the advantage if she's opted out that makes it so worthwhile to her you would be standing here arguing in front of us in order to achieve that i guess because your hon there was a lot of problems with this vehicle it was if not that she remember this litigation began october of two thousand and thirteen this was originally magnussen last warranty a claim relating to water leaks among other issues on reasonable number of repair attempts she's been fighting them from the very beginning and she felt and again with apologies i don't know that all of this is in the record before us but obviously she felt that these would not be sufficient to compensate or for everything she went through and then in the midst of a lawsuit two years in no resolution she finds out oh by the way there's these other frauds that were perpetrated upon you she felt that she wanted the opportunity to explain get her day in court and explain everything that happened to her with regard to the nothing in the settlement is affecting her other claims against you know certainly that would be opposition are ye s so that makes it even harder for me to understand the answer you just gave me as to why it is worth it to her to have you stand here saying she wants to i will say this your honor that the answer to the question has not actually side but none none the less curious assume that her other claims about the water pump and whether other problems with alcohol and a lemon for purposes are just summary are allowed to go forward what's the maximum she can recover  and she's now outside the class action settlement so everything she recovers maybe some version of the class action settlement to the diesel and then something was really related to the water pump or one of their the other things are when what's the maximum she can realistically expect your honor the only reason i'm struggling answer the question is i don't know of off that in any way shape or form would apply i guess assuming there's no offset relating to a class action settlement he c recover the full amount of the difference the difference in value at the time in place of purchase between which he had paid and what's the value of the vehicle she'd actually receive plus perhaps any out of pocket incidental consequential ok i'm still puzzled i mean it doesn't just make an economic sense to me unless you're working for free i'm not your honor but i guess to that point the one thing i can really say is if we don't opt out it seems like some arguments are going to be made and i realize  it's specular but i think we qualify under will six be based on the excusable neglect with the ideas if we don't then we are going to have to litigate i suspect all of these questions unless we get a stipulation from both way and right does there an offset what about the vehicle she return to vehicle through the opt out does she get what value did she get on the way she could keep it there might be some trade in value i don't know your honor but it feels like we're going to have to relive a gate those same questions again even if i win and get everything she wants in the state court i the issue there are a couple of issues that relate to mr chechen he has objected to the manner in which the district court handled the class action settlement the district court elected to bifurcate the  process and instead of in the view of mr chechen following mercury interactive which required the filing of the attorney's fee application for the fairness hearing the district court had the fairness hearing without that fee application there are two peals pending now this appeal on the merits of the settlement and their subsequent appeal which were party to on the attorneys for whart and indeed the attorneys for word that was rendered by the district court  very day the briefs are due in this appeal its cause it's caused concern i believe in this circuit because berkeley interactive has been an important person and particularly well in this circuit about how to proceed in the class action cell another problem that has arisen which is an issue predominately in the second appeal is that when the district court had the fairness hearing but there are two things here that i understand distinguish  ury interactive one is that there was a fisa could be obtained correct so somebody wanted to object or thought that was too much they could do it and in fact the actual fees obtained were half of that amount so they certainly had a pretty good  the fact they inflated feel of what the likely the award was well let me and secondly interests are finished my understanding is that in north korea interactive there wasn't going to be and the time to difference well well there's another fact that i think we need from on the table the notice that was sent to the class a long form notice does not discuss amounts of fees that three hundred twenty four million dollars fee notice was put in the record after the notice was sent out to the class it's not in the it's not in the notice sent to the class and then the district court had the fairness hearing on the merits and said know you think that's inadequate and yes that's the issue before that's one of the key issues for this court now and this court meaning maybe the second panel is is it now going to be the procedure in the ninth circuit that all you have to do is create a settlement website and put your information on the website and not introduce it to the public and keep in mind that when this case was filed there were two forms of notice given e mail to prospective consumers and first class mail which has always been the tradition in all of the circuits class counsel is arguing that at least with respect to the few application all they have to do was as your hon there's a there but you but it was after the class in the class notice was told to check that web site frequently right that's true  true and so the question is is that adequate notice for nationwide class actions people who don't check websites people and that now we put shift and put the burden on the class members to actively check how often are they supposed to check the website once a month once a week once every three months the burden is always historically been on a class council and the defendants to notify the class and i think we think that there is a dangerous the precedent being set in this case is it shifting from mercury interactive in some fashion so now the burden becomes on the class members to have to keep up with notice  that the direction we're going is that also the direction that now you can file a class action in the ninth circuit and not have to give direct notice to a class at all by the traditional methods that have been honored before you just set up a website and post your motion and that's good enough we suggest is not we suggest that this case is leaning toward a precedent that is changing the course of mercury interactive by the way that the court handled both the merits and the attorney's fee and it's also leaning away from the due process rights of class members to receive reasonable and fair notice and that posting on a website is not that notice you know there's also another issue i don't know if the court wants to take it up where a motion is been filed saying that my client because he accepted the benefits of the soundman does not have standing to make these arguments i be right because that defeats that's another thing that is happening in this case that defeats the rights of can of class members to object to understand that part he well that's a that's an issue and that's an issue too in the circuit is now are we going to see a class action settlements this device it's being employed in this case that i've never seen before where you file a claim to be in compliance with the rules of the circuit pursue your objection and then you're presented with the do you have an example there was somebody who has actually signed the settlement and waived his rights to continue to object yes let me let me point out we have a case like that defined in the release that he signed if you go to the summit agreement section nine point two it's the votes wagon parties he's also raising objection about his twenty three a three h writes to object to the attorney your honor i don't want my client prejudiced in the second case that's one thing that i have concern about is that you make a ruling in this case that prejudice is is standing in the second case just based on the argument that a disk a view and the other problem we have here is we now which could be this point i don't know any event the other three other issues i want to point out that i will say though is that we've raised the issue about the revert or and the court applied the standards of bluetooth said it did without the benefit of the few applications and so we question whether the court really did a comprehensive evaluation of the rural issue and whether and it seemed to us that any money th sufficiently uncomprehensible into the law the circuit evaluate to revert or verse it with a few applications front of it because of course supposed to be looking for collusion among other things the other question is is that so why an almost unique class sound isn't it yes we're just a minute where class members got everything they could possibly be entitled to  plus they've done a lot i'll agree that yeah i mean the the river case we've got tend to be cases in which the class members get trivial amounts of money and this is quite the opposite from that case so i'm  having trouble with the strength of the river and argument i'd have to say ok well i appreciate that i'm i'm raising though i believe very important issues about the process mercury interactive the bifurcation the application of  bluetooth and i and those are because i believe that this case is setting pretty precedent for a change arguably a change in the way class actions are handled the notices are handled and the decisional process is handled and it's our view that that is to the detriment of class members ok thank you thank you you used to virtually all your time you've got six seconds left but we will give you let's say two minutes for a response  properly before the court there are people before the court a subject us who are making the same argument subset of arguments is that right there are a few the motion to dismiss that we have on file deals with six of the appellant's including mr chester right and actually there are two additional appellants the seawards who would be subject to the next motion to dismiss that we filed because we've now learned that one of them got his car fixed and was paid the other completed a buyback and was paid and both signed the releases so with this i am just trying to isolate whether there are still people before us who are making essentially one else here today is is arguing and i think it is important to note with respect to that issue that mr czech chick has been paid and signed a release he got over seventeen thousand dollars first two thousand and twelve jetta case as to whether you can still object to the seas but in any event that's could be dealt with and in the fees case i think your honor that's right and on the merits of of of that issue the mercury interactive issue of course the district court  that's the big distinction with mercury interactive but whether settling defendants plaintiffs can object to the seas and i would think they could but it's not for us at this point it's not before and but i would i would say your honor that in this situation and again we're dot dealing with the with with some of the radical class action revealing with this class action in this class action settlement in this class action settlement of course it was not a common percentage of the common fund award it wasn't adopted from the class the settling for settlement class members have gotten their payments directly from volkswagen nothing has been deducted from fees we'll deal with that  as an issue in the field fees appeal but i think it's important to note on the merits that when the class members themselves indicate satisfaction with the deal which includes the structure of the attorneys fees which they were all aware of that was in the class notice which everyone got when they had an opportunity to object and be heard on the amount of the fees and the fee methodology and the lodestar in the multiplier which they were under the procedure that the district court set following mercury interactive you know neither standing nor merits would suggest that those th are compelling claims again this what the district court did in this case was specific and unique to the particular circumstances of this case which as the panel has and as your troubling the fact that there was not a separate notice on of things i was on the website i understand it there and then maybe said well sufficient that they were specifically told about the website there was a look at the website  say that instead the court repeated on the record repeatedly repeated in his preliminary approval order posted on the court website posted on the settlement website of the timing the briefing schedule the procedure is that the somebody could think when they said you're going to get notice of the fee motion that he made he would get notice in the same way that he got the other notice perhaps your honor someone could think that the standard here under rule twenty three age is reasonable it is not equivalent to the best practicable notice standard of rule twenty three this was a case in which unlike most class  actions everything that happened in the case was front page news and i'm not talking about law three sixty i'm talking about the general media front page news it was front page news when class counsel filed their statement that they would seek a maximum of three hundred twenty four million in fees that was front page news in the general media it was covered in the automotive magazines it was covered everywhere it was on the chat groups it was the talk of the volkswagen diesel world  similarly when the final when the preliminary and final settlement approval decisions were made those were news when the actual fee application was filed and posted and served and put on the website that was front page news as well so i would say under the circumstances of this case particularly given the district court's unceasing efforts to make sure these were transparent proceedings but the class members always knew what was going on they could phone in and listen to every status conference they were told to check the website and where the same website was the hub of all the claims activity that was after the millions of hits on this millions and millions your honor and where class council had one hundred twenty four member class member response team we also communicated with at least one hundred thirty thousand class members to answer all their questions about the settlement including questions about the fees and fee timing and including how to get them to their volkswagen buyback appointments on time so this is not a case where any aspect of the settlement or the fees or the fee procedure or the deadline was anything but in plain sight front and center for those who were interested in the settlement and your honors this isn't a pass interested class where the court has to be the guardian because the class members don't know because the class members don't care here we can prove the class has demonstrated it doesn't know it does care four hundred twenty six thousand four hundred fifty six claims going through that same website have been paid or approved in schedule to be paid a settlement has now reached the seven point seven six one billion mark in payments for buybacks and fixes there have been three hundred thirty four nine hundred six buybacks completed whether those cars are illegal or not they are off the road they're not being operated and forty four thousand emissions repairers have been completed or begun those cars regardless of the prior argument are legal to drive buy and sell eleven thousand four hundred one eligible sellers have been paid and the the the number of unique vins the number of actual vehicles that have signed up in the claims portal is over eighty eight point six percent of all the vehicles so that concern about the eighty five percent target it will definitely be reached and exceeded and by the way the obligations under the settlement aren't that will pay eighty five percent that volkswagen pays one hundred percent if one hundred percent shows up one hundred percent gets paid we're doing everything we can to make sure one hundred percent show up and frankly it's the economic incentives that have put the consumers themselves at work here to enforce the clean air act and their own consciences by making sure these cars are bought back and off the road or fixed and operated illegally that's the best way we know to solve the  problem in the real world is is to put the settlement in place and to put it in place quickly the court was very concerned about transparency and information and that did extend to the timing of the fee and the fee process the court followed the procedure in n f l concussion and deepwater horizon two other very high stakes high profile class actions to defer the final three to termination and till everyone knew whether the settlement was real whether volkswagen was in compliance whether it was operating successfully and whether there was a substantial level of class number and it seems to me that it seems to me that the bluetooth concerns about reversion would include concerns about the class fees your honor i think that that is correct i think in a in a ten dollar case or a coupon case all of the bluetooth factors come into high relief and even though the bluetooth factors were arguably irrelevant here judge bryer addressed them comprehensively both at the preliminary approval stage of his thirty three page decision and the final approval stage in his fifty page decision in fact blue proof blue tooth factors have pride of place in place in both because this was a very careful very conscientious district judge and i would also say this i think the lesson of mercury are active the lesson of staten versus boeing is that it's not a matter of structure and bluetooth too it's not a matter of structure and one size fits all with class actions it's a matter of function and what would be an appropriate notice and what would be an appropriate sequencing of the fee process and how soon or how late the court should address fees and what types of notice should be given always depend on the particular circumstances of the case which is why the proposed amendments to rule twenty three which are pending in the supreme court the standing committee approve them have gone to front loading by providing more information sooner judge prior to it front loading and also recommend in the advisory committee notes in line with that i felt and caution and deep water horizon and mercury that in many cases it may be appropriate to defer consideration of the fees until the claims rate or perform participation level of the settlement is known so the district courts are being told to pay close heightened attention to the particular circumstances of the case and design notices and procedures and sequences that are fairest there and this district court spent and in it i would say was an incredible amount of time but it wasn't incredible because it actually happened making sure that the procedures here fit the case and that the class if this had been a class that was not active not engaged not not  involved in claims over an important and emotional investment like a car yes i think that the structure of the settlement the type of notice the amount of fees sought the way fees were structured could have been very different but that would have been a different case and a different settlement and i think what this quote the the jurisprudence of this court teaches that each class action settlement must be evaluated first by the district court as fair adequate and reasonable under its own circumstances using the hand one incher chill factors with heightened attend attention attention under bluetooth if it's a simultaneous settlement and class certification and if there are peels that the the circuit court also be attentive but also be deferential to the broad discretion that a well informed and conscientious district court has over the management and resolution of the cases or trusted to him and finally here i think the class has decided the merits and the value of the settlement you know it's a truism to say in every case it's the class that decides what the class settlement is worth and whether it's a good one here we are at ninety five percent participation by this class i wouldn't be surprised to see us reach  from eighty eight percent to ninety five percent had that happen that happened because eighty eight percent are vehicles but vehicles have have had such a multiple owners this is a former owner plus current owner the class i don't know the details of the of that scenario i will say this if she has other problems with her car that are not t d i matter related the class release does not stop her from pursuing those claims she can have the best of both worlds she can participate of the class member do a buyback or at least one hundred twelve point six percent of the september two thousand and fifteen clean retail value of her car whether her car is clean average or rough because under the settlement all cars are cream puffs and she can pursue the lemon walk claims that that she has so i i don't see based on what i know and inequity here  obviously the right to opt out is an important one it was exercised here it was meaningful here i don't know why she didn't do it on time but i do know that the settlement work will compensate her very very well and doesn't prevent her from pursuing her other non emissions related claims thank you thank you m you know precisely because we can't figure out why she wants to do this we can't figure out why you care district court has done very successfully in this case which is to manage a very complex structure in and as in a way that has allowed it to be as successful as it has b is important to remember that if and perhaps at any point this is an ongoing program there were about three there are three hundred and this is me thirty three about thirty three hundred opt out from the class meaning that more than ninety nine point five percent of the class accepted the settlement here afraid to somebody else is going to show up tomorrow and say this i do not think people can say i did not understand my rights please let me opt out now this i do not think that is a structure that we should indorse and i think it is exactly what the district court was trying to prevent from happening here but what concerns me cabinet she did  was september sixteenth i believe she asked for it she requested to be to be let out to be or to have a second chance to be let out of the settlement on october seventeenth or was about thirty nine days except that that is cause here or an excusable neglect her what her affidavit says is that she received the court approved notice that she downloaded the long form notice that she sent it to her lawyers reviewed it with her lawyers and  out the notice itself oh provides the mechanism for opting out and that is mail to an independent claims supervisor that is the only method of opting out of the class and it is an ex plain language and that is part of says i thought i could do it another way what she never does is say why she thought she could do it another way and there's certainly nothing that i'm aware of that would have led her to think there was something that let her do it another way but more importantly i think it is important to remember that the court itself that who acted after reading this affidavit was certainly aware of the contents of the long form know what risk flames made on line a sumter stood that there that she could instead of mailing a letter to the independent claims supervisor submit a claim for relief and that would be and seen as a valid opt out it's almost respectfully a little bit nonsensical and i think the district court recognized that for what it was ok thank you you thank  it please the court and i'll use less than two minutes but thank you i don't hear any denial nor was there any in the briefs that tory party acted in good faith even if she did it wrong the idea is again different standards operating here i notice that as well in the reading your honor and i can't speak to that other than i agree that there does seem to be two somewhat similar there's overlapping tests but i think in the end the test still remains the same ultimately it's paper in the sky and said right and of course of course i don't think i can deny that i think there's lots of reasons why it was reasonable under the circumstances with the method of communication but the only reason i wanted to come back up your honestly your honour's was to point out that to the extent that and there's not going to be a problem about the rest of the laws yes right ok thank you because i think both sides with their arguments on the settlement case with respect to volkswagen is now s