good morning please the courts are westcott on behalf of objector appellants lewis frost and richard denning sixty nine two zero sixty nine different courts across this country have recognized mr todd hilsey as an expert in the field of class action notice zero have accepted the settling parties purported notice expert mr stephen weisberg if you didn't testify in this case right you know he presented evidence regarding the reached out to you didn't testify right there his evidence was relied upon in the courts determination as far as the reasonable most of the notice going what it boils grows a little bit it's still growing i think so lightly we're still under half of one percent you know but there are twenty eight twenty nine thousand is the last number i saw that were it is i think that's where it is as it stands right now and i don't have the updated numbers from settling parties bettors but i long can it keep growing until the claims rate until the claims close and once that is there are daily there's an eighteen month period when does that date purity and that's what i'm after i don't think it starts until because of the claims created zero point two nine percent one third of one percent of the class here regardless of whether it's seven and half million or something less only one third of one percent is going to receive the benefit of this settlement and we're not asking the court to overturn the settlement solely on the basis of this appallingly low claims mary because there could be circumventing the best case for this approving a settlement based on claims really you know i was just saying we're not asking you just to disapprove a settlement on the basis of the claims right because there are cases cited where a one percent or two percent claims rate has been found to be acceptable all right and we're not what's your best case on the issue of claim your your position on  the notice did not reach the class there was no actual desire to inform the class there are major problems with this notice this case is distinguishable from those he was satisfied it was the best reasonable but there are several problems with that the fact that he accepted as truth and one of those being that remington has warranty card data it's in the record  actual warranty card itself is in the record it has the physical mailing address for individuals who purchased these guns the model numbers oh wow if they have the physical addresses under my lane and car i've been versed carlyle they're required to use the noticed experts everywhere that direct mail notice gets the highest rate and they simply chose to disregard that and in the district court in making their decision relied on the argument of the mental challenge brits are probably my age and don't understand social media or the internet well any involved in there and new ways the way to do it to reach particularly young people today may be completely off the chart in terms of what experts would have said ten years ago you should do and we agree with that we're not trying to rebel but that's what the district court was dealing with trying to change and the law has general principles that have the have to be of that but there are still required to send the best with to tinker with what the judge did i'd like to point out what one major problem and that we see is that in accepting the settling parties vendors from remington notice provider mack erickson i wanted the hearings where he said we saw this as an opportunity to revolutionize the way in which notice was done in the united states and bring it up to the leading standard but we recognize it's an innovative expert todd hilsey who's been recognized by a number of courts as a leading expert heat in the cotton field approximation notice has pointed out major flaws with their experimental their own words an experimental plan lots of experiments fail and this one did and they don't have the claims rate to back it up if you're going to do an experimental notice plan you need to have a claims rate to back it up to show that that worked and the court blindly accepted the event notice rendered there's a difference five hundred thousand people didn't receive no what we have is all you're saying is well these idiots didn't submit didn't didn't put in for some rifle repair reimbursement that they good of and so they can't be stupid so they must not have gotten the notice i don't i don't go from i don't say that a plus b c we're raising an issue with whether or not the class actually was given the opportunity to be informed and there are so many problems with this didn't your experimental plan they're saying that forty million were reached and they're using that as as their number but the court ignored all of the where were the forty million forty million impression  from the internet advertising of course that's not it that a person forty million ok but it's really years here is what i wear i struggle a little bit is that your argument is that we look at the claims rat now proves that no this was not proceed and yet i look at this thing and i say you know listen i want to fifty year old remington rifle never had any problems with a trigger my dad never had any problems with the trigger i'm now holding none of this gun i've never had any difficulties with it you know and you want me to send my gun to you or give me like you know after something i mean there's an end and i'm going to lose the anonymity that i'll miss gun and then know somebody is going to have it all these guys that that all these firearms you don't watch percentage of firearms are held by people who are a little bit concerned about the government finding out they have them because they don't want the government to come and get them so there's all kinds of reasons for this very small benefit that a firearm owner might just say not worth my trouble so why are you not i mean what why should we draw from your inference that they must not have been reached as opposed the inference that they just don't care that were not provided that shows that were known to these are known to media betters you know how many people click on a banner ad you know how many people open an email these are statistics that are easy to know and that they're settling the settling parties bender's chose not to provide the court if there is evidence about their that the district court is relying on one point i'd like to make and response to your are going as far as the claims process that's another thing that we raise in our briefing is that this claims process is so burdensome there is no reason that these people had to send back the cynical in the question you had some of these guns go back to the one nine hundred forty eight so we're talking about a huge sweep of time and this is a i mean this is a complicated settlement and to say that the judge mailed it in or had no backward looking anachronistic view of notice i mean and it speaks to what judge logan said earlier times have changed the can he was proven he's run a business in the case but he followed the amakosa brief with the district court for electronic communications when the situation warrants it that's exactly what we have here rimington communicates through to its customers through its e mail list it has a rob e mail list which it keeps up it's got about eight hundred thousand names on it but only ninety three thousand recognized this e mail is connected to these guns right not even that many probably others use in e mail notices to ninety the notice the notice effort here was was almost unprecedented we went beyond you know we beyond is good as practical and part of that was demanded by judge smith do you believe that the  million e mails with two people who are definitely in the seven point five million class some of them absolutely i don't know how many because the e mail district judge no how about how many were about how many were you know we no one knows it can't be known the list we put together was wildly overbroad but we were judged miss said listen go back to the drawing board you send notice out we have you know two thousand two hundred claims after the first round of notice in that was in due process notice with a breach of seventy three point seven i believe he said do it again and so we had to step back last counsel and i'd say what what do we do now i mean we did you process notice the judge is not happy we make you happy we need you we need to stimulate claims that's why we went to signal interactive media and we got them to put together this targeted social media based notice campaign was it innovative sure that's what we wanted but we didn't stop there not only did we do this test case proven know this program we also we we layered on a radio program which was you know played in ninety percent of the markets in this country but we didn't stop there either we larded on this email program or we were we took all our active e mail names in we drew in from every other source we had while ago and they started a new program but what we have is this active cuss that's what the company uses to communicate with but did we bring in the warranty information to the extent we had it we made this one million person e mail list sure we did and we brought everything else into when we d dupe that list and then we sent it out knowing that probably a small fraction of it of those individuals that got the notice had guns that fell within the received seven hundred eighty eight claimed personally injury or property damage now what's the what's the status under the settlement of those persons with that claim and limitations arguments against any statute limitations defenses though in the settlement right we yeah you remington don't wave get up no we don't you don't  in the period of time passes for the judgment to come final that's when the period eighteen months lame starts and it's eighteen months thereafter that's right so we have a good long time at least two more years two three more years yet and let's keep in mind and or is there someplace we can go like the district courts website or any other place it indicates the status of claims and any relevant data because they keep changing every time somebody files a brief i notice they do and i can tell you as an officer of the court right now when we filed our original brief for final approval we had two thousand two hundred claims at the final approval hearing after the supplemental notice program we had nine hundred thousand claims as of now we have roughly thirty one thousand five hundred claims and let's keep in mind we haven't even started you know the period of claims yet i mean there will be pub there will be certainly press information i think the reporters in the room right now that will pick this up and so we expect an absolute uptick in claims and the company is ready to begin this process we have inventory on stock our claims people are ready to answer questions are already are see people who we've trained are ready to fix guns and we're ready to fix straightforward and that is to determine whether the district court clearly abused his discretion in approving the settlement this court's jurisprudence from the marshall case confirms that settlement agreements are pres that the district court's determination is entitled to considerable deference now the eighth circuit has developed a fourth factor test to be used in evaluating these settlements and the first and i think most important factor is recognized by the court is for the district court to weigh the merits of the plaintiff's case against the terms of the settlement this case involves plaintiffs in a class who own remington firearms various models of them with a defective trigger mechanism it's an economic loss case but it's also a case which produced presents a public safety problem a safety problem for the people who own the guns those who are around people who are using the guns the result of the defect is an unintentional discharge of the weapon something every everybody everywhere wants to avoid the settlement goes right to the heart of that complaint and that's why it's quaint it's council we think it's a good settlement to the players believe every gun has this problem a percentage of them i'm sorry i've not looked at your actual allegations and i know we're beyond that stage  but at one point what's your view of the case on that point the plaintiff's view of the case is the way the guns are designed manufactured the potential for that is there in every want to yes yes person and so we ort we want to get that fixed and what th settlement does is provide a way for that to happen and that's why it's a good settlement from the plaintiff's standpoint now in the seal case from two thousand and seventeen just last year this court was conducting this very same analysis in reviewing a class settlement certification in it upheld the settlement because the outcome of the case was far from certain if the case did not settle and because there was a substantial benefit to the class and that's exactly what we have here it's right up to three percent right partly it's settlement claims rate got up to three percent right i think it may have your honor but in terms of substantial benefit of the class and obstacle to the law in obstacles to the litigation judge smith below went through that very carefully he outlined some of the statute of limitations issues the the plaintiffs in this class would face because of the age of their guns and he even reasoned that if you take the statutes of limitation into effect it could reduce the size of the class to about a million guns just by virtue of time so that's a substantial obstacle that is now a way for purposes of this settlement to get as many guns fixed as can be fixed which way you don't need just economic loss not just a personal injury right you know that's that's that's correct your honor of course a personal injury case would arise when the gun case and of course remington is defending these elusive firstly and aggressively and so they're arguing no defect in the causation so the court did not abuse its discretion when it approved this settlement the settlement went right to the heart of the complaint it's feasible it can be done tens of thousands of guns are getting fixed tens of thousands of more maybe up to hundreds of thousands we don't know can be  the end of the eighteen month period and so this is a case i think it fits directly with with jurisprudence keil within the jurisprudence of marshall to approve this case the trial court engaged in the correct analysis has forced choice of law and everything only have about a minute here some to try to touch quickly on a couple points that mr sherk made one point that struck out to me is that he cannot tell you how many of those e mails actually reached class members i think that's critical here they don't know and he said this is the best we could do and i don't think that's the correct answer this is not the best they could do they left out friends and television campaigns they could have done a stronger internet notice we're not completely discounting the use of digital media hair but what they did here was a you know not a thorough effort and that's the problem that we raise and that's the problem that mr healthy raises and that digital ad expert mr foley raises in his  he also stated that they expect an uptick in claims because it hasn't even started the notice program is over they're not expecting to do any more notice any notice at this point that class members would get would just be over as a result of these proceedings and i