we have three cases on the agenda for this afternoon and the first one is well that's referred to as convert cases appellate numbers eighteen dash twenty three seventeen twenty three eighteen twenty three nineteen twenty three twenty here couldn't they could not have proceeded together and in fact they did not proceed together you don't you don't get to a question even of whether they perceive of whether there are in dish of coordination or anything like that because they never proceeded together in the first if your case had discovery the motion practice accorded to trial wings sattar but we weren't a beneficiary of any of that at least certainly not yet we were you know we meet we need some of the some of the tests of push the initial test of the cases arise from the same common sort of fact and stance of the law is the same but that's a separate question when we get the real issue on this appeal in this case is whether the cases were proceeding together and to answer that question you have to look to see if there was actual coordination like timing of the filing of these suits is you know connected so why well why should we you know understand these complaints as effectively coordinated well again because you can have for example that would lead us down a bit of a slippery slope i mean any time you have a case that has some roe that has some resemblance to another case you don't be talking about susan i don't we don't think you're not telling us this you also not dispute that the for the district court when asked about no discovery that you would want your client to be able to take advantage of the discovery don there would be very much more to do in from the class action case to proceed opt out to things and that you want to first of all the representations made in that briefing about the fact that there was this overlapping discovery of useful material that were disclosed and of course you are me remember that case we we made that point because we made the point really because the to the question of whether the cases are coordinated the cases the cases that have popped about benefiting from things the cars are benefiting from the coordination it's all benefiting from the coordinated discovery orders being part of the process doing the depositions together those are the is your representation is that if your action was filed a minute after your clients opted out in march while while the class action was still going out and they filed your class action and you're saying that they would not be subject to bar well then we get into the question then we would see if in fact coordination occurred we infer from the timing of the i shout just say that the eight months or so delay between the opt out date and the time the complaints were filed that this was not artful pleading to avoid the p r sorry but sort of artful procedural activity to try to avoid what you say would be this final canadian  requirement not all you are i'll say what i told the district where this list was the furthest thing from our minds i may have been the furthest thing from the defendant's minds of the times we have federal claims and of course there are will recall that those planes got caught up in a innocent eyes and subsequent develop still we did have state claims in there as well but we were not thinking about suicide at all during a conference or where of any other statutes to use similar language about joined or consolidation of proceeding as a single action anywhere this phrase contemporary navy requirement as opposed to it continuity requirement for things proceeding as a single action was that it has to proceed together and so if we were proceeding together with the class action and we were doing the things that you see in some of the other cases th cases which talked about again you know depositions proceeding where everybody attends and they just are they proceed together it's received as a single action and judge kraus definition it could proceed for a while take a pause and then resume but they were never that we did that would assume that they were together as an action in the first place and again we're not just trying to be hyper technical here we understand the argument about timing i mean as i mentioned in a few minutes ago  gamesmanship here because we weren't thinking about sluice so we didn't have to think about it but not necessarily mean big something can proceed as a single action if you have continuity of action but if if if what why shouldn't we  view your client's actions as simply picking up where the prior class action left off after all they were members of that putative class and they are benefiting from the continuation of  analysis is the benefiting all because of coordination itself and since we as we didn't have any coordination the fact that our planes are going to go are going to deal with similar issues as class claims that were previously saddled you know doesn't meet their standards but it's not there somewhere is that it seems circular because we're trying to decide how much coordination is if sufficient coordination procedures a single action and here there was no coordination that's the point the senate simply having  upon its being at issue i mean we agree that we've got complaints which are very similar to the class complaint that's true but that's not the question that's really on appeal here to europe the question of whether this coordination and all those other cases every single different foretaste that anybody looked at you've got cases existing together side by side you've got coordination between them where the lords are working together usually a court orders to that effect so that's when you really see two cases together where must assume some of those cases involve counsel of plaintiffs who are trying to do their best to try to do it to distance themselves from coordination council trying to file actions in a different district to avoid the same court matter from trying to prevent simultaneous class actions kind of down this road of no roping in individual actions that probably should have been roped in if you might you might be thinking the valiant case more recent case where yeah you did have the council trying to get away from the class action for the very purpose however even an act if they had more than fifty plaintiffs themselves so they would have been you know as we say saluted anyway and the lot of this gusher that case involving you know these other issues didn't really matter because they already have their  players they already have to fight the fifty five plaintiffs but you know you want let's remember these this these situations are common in district courts in other you know throughout the and other circuits frankly there's only a binding here we think this is a bit of a matter of first impression we think to remember that we there are two types of covered quiet sanctions there are single lawsuits and there's a group of lawsuits and what we argued but successfully was that the plaintiffs lawsuits should be grouped with the class action lawsuit so as to trigger susa in the provision that we saw it it starts out by saying a group of lawsuits should be must be filed in our pending in the same core that is the phrase in sluice of the talks about timing that's the temporal phrase congress could have said this only applies to cases pending pending at the same time in federal court but it didn't say that instead it said filed in or pending in federal court why has that is the district court acknowledged just to counter the fact that one of them  this provision simply to cases that had some overlap with the class action they could have done it very simply because or said this applies to cases who are pending at any time at the same time but they didn't they said filed in  that we have something proceeding as a single action if one of the one of the that one of those actions in fact that when it's necessary to aggregate more than fifty has ceased to exist before the other action ever comes into existence right so so let me answer that in two ways first of all as a technical matter it didn't cease to exist it still continued to continue drugger purposes but the class action continued there were peels on attorneys fees issues there was the continuing jurisdiction to make sure that the settlement funds were distributed so as a as a hypertechnical matter the class action  continued during the time that these cases were filed but i think even more to the point if you look at the language which says joined a consolidated or procedures a single action for any purpose  or any purpose we know that it's not literally proceeding as a single action because this is the grouping provision this is a provision that groups distinct and different actions so we know that it's not literally a single action so what does the phrase mean when it says a procedure is a single action for any purpose well what are some of the purposes that you see when actions actually are joined or consolidated right what you are what you actually see in those circumstances where sometimes in the consolidated action you'll see an amended consolidated on the same complaint these plaintiffs i know we keep trying to back away from that they literally n i have going to say we did an investigation and we're now alleging facts from various confidential witnesses so they copy the complaint and they also copied an investigation that they didn't do the class action points investigation and so that's another way that they're not only benefiting from the first action but by proceeding as a single apple she would say and then they came to this board and they said to conceded that this isn't literally a single action my concern is what does the phrase proceed as a single action to is as a single action surplusage what work is single doing on you reading here that would mean exactly the same thing if the word were not in the statute right so i think what the what the word connotes it's not it didn't say it must be a single action it's said it must proce on it this is the grouping sanction this is the section good already assumes that the cases you're looking at are distinct cases all right but congress has given us a principle for dividing that here and you have a talk about a used to engineers it's joined consolidated or so so the doctrine that you're siding says when you have a statute that says a b or c if the context is why you can say well then see must be similar in some respect so the two points i'd make is number one the statute doesn't say simply a good or c it has a b or otherwise c for any purpose ok so already it's a little bit different and if you're trying to ask yourself well what this i mean for any purpose it doesn't mean for every purpose it doesn't mean for most purposes it doesn't even mean for the most significant purpose for any purpose is just about the phrase congress single action for some purpose before or can be for any purpose as a single action because the new congress knew this was not going to be in fact a single action it's in the it's in the it's in the part of the statute that t certain aspects of the case or equal or even even that there is a state in one case pending a disposition of a motion in the class action where there is some procedural coordination that that would seem to be by the term otherwise in that list of disjunct or otherwise means different from congress could have said there must be procedural coordination they did congress congress had coordination as one the by the term otherwise and why isn't that christie will coordination that happens when cases are joined consolidated and otherwise proceed seems like it's referencing what what is common about or congress could have said that congress could have said or isn't ours otherwise coordinated or otherwise procedurally coordinated and it didn't and and i what i think is the similarity here because i think there is a some what i think this is similarity here is exactly what the district court focused on which is the benefits that these opt out claimants are getting from the class action and it's not just comping the complaint it's not just we whine on class councils investigation it's not just adopting the discovery record which by the way was a huge benefit for them it would cost them millions of dollars here to do the work necessary to do the discovery in this case and it's and it's not just saying to every court there in this is that we waited case right this is a really big case it's all of those things and it's trying proceed as a single question you seem to alina get on the land on the two words as a yes so from your point of view do i understand you correctly that it's proceeding like a similar to a and so you're using that as an interpret commuting to use a message from congress well because it's the end of the phrase which we should not forget is for any purpose for any purpose the broadest language congress could put in and say there if there is any similarity here if there is any purpose here then you're then you're captured under susannah and other courts have looked at it this way i am no rosa and this i'm going to mispronounce assisted saying case both said let's take a look at the commonality that's a compliant look to be the say and guard the way when we talk about seeking a discoveries ok but our justice are those from your adversaries part of you different because at the time that analysis was happening better number one congress could have said the case is must be put must proceed together as plain as counsel kept saying or must be at the same time or must be pending at the same time there are so many ways congress could have sa explanation for it and and it didn't work on the federal crime because the supreme court's ruling on specter repos who waited too long and the notion that you can just wait out the client's action and then burden federal courts with the same action that just happened successively and be here ten years later fifteen years later is just one of yes i'm sorry you are speaking to seems to go lower too playas with the opt out  deadline and with the statute of limitations but congress was trying to strike a balance between the due process the constitutional rights of the individual  class members who may want to proceed on their own to be able to opt out and even if they are then to file an identical complaint i it as long as they're at it and even if the benefit as  same language from the complaint that they've lost their due process rights receipt individual and so so you have the right to opt out you don't have the right to bring a new action if there are other impediments to that action if it's after the statue limitations or the statute to propose you don't have a constitutional right to bring in your action these pointers had they opted out earlier had they filed didn't you different district had they disowned all of the benefits of the clients actually might be in a very different position ok but that's not what they did here they they sought every benefit including the benefit of their prior status  class members they came before this court and they said to this court we get a benefit in our new action because we were class members of the by car and car sanction and that gives us various towing benefits so we came to the court if if these are bad consequences congress can amend the statute i can't understand what work the word single is doing in the statute and you're reading why is it there right and so and so but i don't think that that's a  what what what is filed in and you can think of different circumstances but certainly it's to indicate that it's not necessary simply to be pending and if you look at the word single  means simultaneous i think is going to harm you may find it's not so defining and it's ambiguous but it certainly doesn't connote that they must be pending at the same time and then undercut earlier part of the statute that's the that's the issue i think one has been reading this this this provision describes can i make sure i understand darkness four of your argument because i'm here we have where is left  purely state law claims correct right yes and so if i understand your position correctly these plaintiffs could file their individual actions in a different diffs district court yes they could file their actions in state court you have to and they but they can file their their actions in this court that because this court is the one that had different district would probably try to get it over here but the statute says you know pending in the same district and all the way but the statute was cracked cracked in a way that even if they'd made you effort you said they could have if you could ever moved transferred it was another day trip get it back to the same choir but then your argument that they didn't see benefits from the kinds i should be a little bit stronger but i got to tell you i said you sing about the benefits of the class action statutes about making sure people are doing  so maybe it works out provision only applies to covered actions you have read so cover it's current actions that they could be right could be transferred or removed and a covered action would require that it be filed in or pending in the same court so i think the point your honor if it was clear that he transferred are removed but if it were filed in state court or a different district court right so i think the point is the reason they filed the district of new jersey is in fact where marks headquarters are so so so it may be hard to actually prevent you purposes to file somewhere else frankly i haven't you know i thought of this case from not have a simultaneity requirement and if it were read to have one i think it would violate the filed in or pending cause and it would be wholly wholly not in keeping with the purpose of source pointed out so this is not about benefits it's not about getting into the minds of a plaintiff certain awards figure out motivations we did everything by the book here we opted out and was supposed to we file their cases when opt out federal claims that we had and they were successful there thanks to n z they don't want these coins but it's certainly nothing to do with it another class action that's going on around the body back so again there's no proof no benefit analysis and we haven't received class or to the settlement rather than striking wish construe from that no i will take you through very quickly it's pretty normal for opt outs to happen on the last day of the opt out deadline and for complaints to be filed when your ad are pretty close to get to the deadlines i mean that's how usually works in this particular case there was an op back in right so we decided taking time to evaluate whether we want to do that but no there was no and as i mentioned earlier we had federal claims we weren't thinking but  sided we opted out of the case so i mean things things sort of things sort of started changing but all that really put aside i'd like to just focus on what i think you are the focus on the plain language of the statute and the purpose of the staff of the statute is very clear to  it says you know are joined arkansas and you can you can repeat the word are our joint arkansas later other words are proceeding that's all present tense i don't see any other way to read that preceded as a single action i mean as i think your honor has pointed out and is not a big word if congress wanted to talk about the past tense again we could have here the fact that in a different part of the solution element you get into a filed in or pending before because the reason we have the pending is because the crisis may have been transferred so we might have filed this case in the district of california mr kramer would have transferred that case to new jersey so it wouldn't have been filed in this district new jersey but it still would be pending in new jersey that's why you have both words ok so and that's a separate part of slews anyways the parliament also means that it could have been f and closed and pending mean skylab well that's i guess you can you can think about it that way but if i'm to me the most common sense answer to the question of why they have both filed in or and pending why they need both words it's the reason i just suggested because often these cases will be filed somewhere else and transferred maybe it would have been filed in state court and removed so you'd still have to get into the pending court congress didn't want to limit it to have to be filed here that's what we think they were doing but even so you can put all that aside because we get to the proceeding as a single action part and again you can twist the words around they just can't mean anything else but that the cases are proceeding together they exist at the same time and they're coordinated all the addition of coordination are things that are happening as the cases are going on that's the whole point of the coordination we may have similarities but for example if we had copied an f t c complaint and you know once and would we be talking about  that i would urge the court this is certainly a bright line you can't have two cases coordinated when they don't exist at the same time period unless again remember the purpose of slews of preventing duplicative class action so is it came about after the p s l or a because you had plaintiff lawyers banding together hundreds of fun use the form basically it's out of place i said because they couldn't when the lead plaintiff motion that's the kind of things those are really were designed to prevent and we get that it wasn't designed to preclude a couple of individual cases that are existing when there's not even a class action around thank you thank you