good morning your honor so my name is brian bromberg may please the court i represent the intervenor appellant cassandra mcnair stepney on this appeal your honour's this case is about whether the rights of  class member who has been actively litigating her case in state court for years can have her rights wiped out without receiving any individual notice miss macnair stepney had been litigating her case in illinois state court since two state court has been waiting on the motion for reconsideration awaiting to see what happens here in california as it was such there is no financial you know exactly there's no final judgment in illinois and again they said you know what this is not the appropriate place to take this kind of final preclusion here that had to be dealt with by the court here and that the appropriate place to take it up was not in illinois that we should come out here which is precisely what we did we came out here and we and i which point we learned a number of things we learned in the illinois case that the notice that had been sent to the attorney for ms mcnair stepney had been sent to the wrong address and therefore it of course never been received and therefore they don't get the pre partners with his wife and his wife while he was ill was checking the mail every day and making sure the nothing slipped through and the matters that would come in she would give to attorneys who dealt with that particular field of law so she was keeping on top of things and there's no evidence whatsoever that it was received and again if you send a piece of mail to the wrong address you don't get the presumption of delivery we can't speculate on what happened to the document all we know is that it wasn't received that the defendant's and that toyota says they never got it back in the mel because it was addressed to the wrong address we can speculate whether it was received or not received because there's no presumption that wa conference and then it wasn't until then toyota waited waited a year until they made their motion for summary judgment and that's when they saw a copy ok so you're all you guys found out in tw to receive i mean obviously you knew immediately but we never received notice of this right it was it came as a shock that i doubt that the control case it settled and it and you had not been given an opportunity to opt out it comes it came as a shock but when you're told by an attorney we mailed the notice to you you never opted out and then it wasn't until it wasn't until two thousand and fourteen but why why didn't you immediately go to the federal district court here and say hold on hold on  learned today or yesterday that this settlement has had occurred and we are here to tell you that we never received that notice and we'd like to be given more time to opt out or something well and never cards anyone your honor i mean you waited two years then you did two years before taking any action out here and i guess i don't understand why oh no in two thousand and fourteen there was the motion for summary judgment and state court right ok so well hold on hold on we never took any action out here because at first there was the motion for summary judgment in state court but you knew that there was a final judgment that had been in and that had been entered in the case here that your client was a member of that class you had not opted out you had to know that they were going to invoke that as a bar to any further litigation in illinois and you waited two years before seeking to basically get relief from the judge and i guess i don't i'm just trying to figure out why would you do that but that's actually what happened your honor is when they were told  that's why i was surprised when you said you first found out in two thousand and thirteen because the i have my notes that the attorney passed away july eighth the twenty fourteen oh excuse me excuse me we found out i'm trying to remember the exact date when we found out there was the settlement conference that took place at which they mentioned that there had been a settlement in the case here and there had been notice it may have been twenty fourteen your honor i'm sorry and i'm sorry if i misspoke  lot of publication notice and on top of all that this was i mean i probably knew about this even though i had nothing to do with the because everybody it was it was extremely well publicized set of litigation i mean it's just sort of not credible that somebody w class the predominant part of the group which they did here and you do the publication notice which they did here why it doesn't need to be perfect as it well your own is there's no other i haven't found any we don't know where it wants but that's the one i'm talking about so do i mean to prevent that from occurring if the requirement is that you must never have a typographic in a notice that is sent out you would have to have you know have to have somebody double check each and every piece of mail before it went out on your own it seems to me to be unreasonable when the standard is not perfection i'm not sure of the time reasonable when you're talking about a case that have been pending for five years i mean they certainly knew where to spend where to send motion papers they certainly knew where to say i mean yes if you think the corporation is  person but and some of us do but in fact it's a lot of different people doing different things it is a whole lot of different people doing different things but there think that wasn't the only place where they dropped the ball the obligation is actually to send the individual they were completely different people doing different things yes but then you're basically excusing them for sending out twenty one for committing vest products liability problems you're basically rewarding them for not being and this court silver decision makes this point when you find out you've got to get into court right away so that is one stand alone ground the long period time you you have the option of taking a run at it in the as a whole and whether it is makes reasonable efforts to get to the class as a whole and it includes tolerance for imperfection and mistakes but you know this as you yes but i guess help me with this the all of the cases that i've seen the imperfections are not really the fault of the let's just say the defendant your client right it's we had the wrong address in our files but it would have taken  exorbitant effort to track down you know each individual person to make sure that that was the correct so we sent to the address we had if there was a mistake in the address you know that's not our fault things like that right i haven't found any case like this one where you all actually had the correct address and but you you guys screwed up and mailed it to the wrong address and so it seems to me the party that's at fault for the mistake might be a relevant consideration in the in the due process analysis it two points one on precedent and there are cases and two on principle we've cited your honor three gets at least three district court decisions in which there was a similar left hand right hand problem that defendant had the right address somewhere but it's a massive program and that's the gross in the defendant's possession the correct information well no i guess i don't think that i didn't view that case is that similar first of all it's not binding that much attention to district court cases anyway but they're the bank i guess had a an address on file right and i assume it just used whatever that database was to send out all the notices and so i do understand why some individual person i don't know if there were hundreds of thousands but some individual person is trying to lob in a new address and it just doesn't make its way that again that's just like the amount of resources that would have to be invested to make sure that we you know double check this database to make sure it was correct that would be unreasonable here though as i understand it your client decided or the whoever decided to construct this notice program decided to send notice to council for all of the people who are in active litigation and the only address you all have in database to begin with was the correct one and it's just for whatever reason that got screwed up through a typographical error sure mistakes are made but all of the fault is is really with with your client that's how i guess i see it so why am i seeing it wrong because you know but the principle has to be the same it has to be the same analysis you've got twenty two million class members including many many people with individual lawsuits this was a bass of thing and so  it is impossible to have a situation where you're not going to have a typo and if you don't one of the reasons why just us this let's say that you made a typo and every single one right  that you just say well typos occur even though so we've sent out twenty two million notices we screwed up the addresses on all of them we had the correct address but we sent every single one of those to the wrong address and it turns out that half these damn people never found out about this you would say individual notice as a whole aizen didn't consider at all the issue off individual mistakes made in isin the i defended argued we don't have to give individual notice to party it's too costly and the court said no you've got to make a reasonable effort to give notice as a whole if this district court lie at all on the timing question in ninety six to the district court did not i would a situation where you're more than a year and there's no conceded in court this morning there's no rational ground for it you can do it but you again you don't even need to reach that point because the standard it's clear it's reasonable  you're right that there's an initial analysis in section three of the opinion that deals with the due process question writ large and it does say that you look at the adequacy of the program as a whole but then in section four of the opinion the court goes on to do a much more individualized analysis that basically seems to suggest that we weigh a whole bunch of factors one of which as i said is whose fault was it that this individual person did not get the notice and one of the other factors is how long or how diligent were they once they found out about the mistake in that kind of thing but it seems to me kind of a totality the circumstances type analysis that i don't know that the district court really did that here and that that's really what gives me most the most pause about affirming well you are actually the district court did do that analysis is important to remember they didn't even make the contention on prague to unsolder they argued this was a violation of due process so it's void as a batter a law and you don't get to prostitute that's why you haven't heard the words of discretion or abuse of discretion anywhere in their briefs they didn't even make an argument on prop two the district court nonetheless without that argument even being made considered all of the factors and so over the degree of compliance in the program as a whole because when you talk about who's fault it is you as you pointed out earlier it's is this a one off or is this a system right now i don't i don't think that's what the court was talking about i'm sober it's there was a mistake made and everyone recognizes that mistakes occur but it's who do we ascribe the fault to i mean it could be for example that the plaintiff gave you know the wrong address and never updated it and you'd say well yeah a mistake was made you didn't get those but it's your fault we're going to tag the defendant with that but what the court suggested in silver was that a defendant who who is at fault for the notice not getting to the person doesn't have any reliance interest in the final that judgment right that that's the just kind of a basic notion of fairness if i know you want to come in and say look my client thought this was wrapped up we paid out the settlement this has to be done and what that analysis suggests is that we'll know if it's your fault for not notifying someone maybe you passed void and into an analysis a phone it doesn't say even a reasonable time the motion to rule sixty b must be made within a reasonable time when you suggest so it has to be a reasonable time right but the point is the silver analysis judge watford is talking about it's not a judgment void that's an appeal to the district courts its discretion sixty six yes what was i don't think that's on the table because they went soley on void in this case but they asked for relief from th mean i don't know it's an equitable appeal to the district court's discretion saying listen you have the authority to give me relief from this judgment here in fairness is why you should do that and lays lay out the circumstances as to why they didn't give notice it seems to me that's got to be a sixty six  and if it is then the timing counts so we're just going back and forth on this so the timing doesn't count if we're just under void ok but if we're under sixty six the timing most certainly cow and you i'm sure you know just your honor in silver that that plaintiff moved within eight days he was asking them laughing learned along and critically for purposes of this motion that plaintiff moved before the judge had finally approved the found this case a year later sour this well was after us after we had already lived litigated the issue before the state judge we filed this action when the state judge said you know what go deal with this matter in california in addition we didn't find out about the mailing of the notice to the salvage yard until we saw the response of papers to our motion in the district court here so in other words that was the very first time we realized there was an allegation that notice of been sent directly to our client and it seems like the kind of hid that because it was that's when we first learned that it hadn't actually gone to a client and gone to a salvage yard which goes back to the issue of the reasonableness of the program as a whole you have cars that you know are having problems and you know that they are running into ditches and you know that there are going to salvage yards which is actually what happened to our client and meanwhile you have a process set up where notices are being sent to salvage yards when the problem is with cars that are being totaled and people that are getting injured so there seems to be a problem with the entire process that was set up by the by toyota to deal with the subtle meant finally there's no terribly credible you know that i guess you can i just ask that is one way of looking at it i guess the other way would be to say that it's entirely credible because i think under the settlement your client was going to get like one hundred dollars and you had this litigation for five years i can imagine how much your your predecessors invested in terms of monies fees and that there's no way if you had known about the settlement that you wouldn't have opted out right to preserve your right to pursue whatever relief you were seeking you know no and just get stuck with  hundred dollars i would make no sense it would make absolutely your honor if we had known that we thought the notice had gone to the right place and that somehow slipped through people's fingers it was only when the summary judgment motion was made in state court that we suddenly realized why no one had seen the notice why the entire procedure had been messed up and then it wasn't until the later time that we saw other thank you ok i'm sorry for taking additional time thank you i found interesting arguments interesting