please the court will be speaking for to minutes and reserving five for rebuttal plaintiff's appeal sets forth two legal issues that will reoccur within the context of class action litigation that is the fence attempting to buy off a class by utilizing rule sixty eight offers of judgment particularly early in the case to minimize its liability  st whether the picking off exception to move under wilson can be applied to a case in which a rule sixty eight dollars offer a judgment occurs is one issue that the court is being asked to decide the nd issue whether as an extension of the supreme court's holding the rope or can the extension to moon is exist for the name plaintiff to be able to shift the taxation of the plaintiff court ordered attorney's fees on her individual award to the members of a certified class thereby leaving the plaintiff only to be taxed on her individual award leaving the attorney to be taxed on their set amount of attorney fees use some preliminary questions  yes so the way i understand the procedure below and i've looked at the judgment you've got an initial judgement you move to correct the judgment and the district work gave you a judgement on all counts in your favor correct as to the name pla judgement and we only review judgments and so when we review the judgement there's no nothing is moot you are the prevailing party and so you can't  appeal your honor respect that we can appeal the class certification motion would be the same if a plaintiff had prevailed at trial on the merits had a class certification denied judgment is entered for the plaintiff that isn't in the judgment if  so we the only thing we have authority to review is the judgment the judgment says you've got judgment on all counts that's what we review the supreme court said time and again we review judgments not opinions the judgment is on all counts why how do we have the authority to review it how do we deal with all that supreme court authority maybe that's the way to say but you're on your own right my understanding is raising briefs is that when there's a drought for a class certification which was also included within the opinion which was an opinion and order but not a judgment but not a judgment the judgment would only apply to the individual plaintiffs claims that it had nothing to do with the class let's read it before the judgment was entered we amended also too file in a representative capacity because we were allowed to alter the amend the complaint with the the court rules because it was filed within one within twenty one dollars days the amended judgment deals with the amended complaint it has to there are some several works that are ok if you don't buy into the supreme court how about every circuit in the country has said that where is the judgment on all counts in your favor you cannot  then we all counsel or favor the pair prayer of relief also included a request for class certification and if that ok so i mean that is that is i really i see that as problematic i see i see that as problematic this is the st time that it's been raised your honor and so i'm trying to address it here in oral arguments because if here we have the situation where this is going to reoccur and we're going now go on to the fact that change it is further ordered the plaintiff class action claims are dismissed without prejudice as moot or you could yes that was the judgment in place we're talking about a different case you see what i'm on the class claims to come up your honor you can't because rule sixty eight dollars offers a judgment are contractual and in fact the amended one is because it tracks exactly the defendant's language within the offer which was attached to the in other words  operative judgment didn't have any reservation with respect to class claims it didn't reserve the class claims would also it didn't express lee exclude them either or in the op or judgment down and as our court and the supreme court of that sometimes operative judgment make does apply the mooting the exception to move where that the individual who even voluntarily excepts a in their case their individual case can still pursue the claims of the class individual days within the after the case was filed and in our position is that the district court erred in looking at the class a motion for quiet certification filed at that point the classification had been filed there was not after the seven days the offer was made on the th day there was four days in which to communicate with the plaintiff to get what the plaintiff wanted to decide and then to file the class certification motion albeit it was missing numerosity but plausibly set forth numerosity and then accepted the offer judgment and then amended the complaint to proceed  on in a representative fashion to make clear to the district court judge the plaintiff had already relinquished their individual claims and that's why when it says all claims are interpretation which rule sixty eight offers of judgments are interpretive are reasonable interpretation of that is that it was just his individual claims he was releasing not any claims related to the class members the motion or class sort of occasion is filed in the five minutes later the class motion excepts the rule sixty eight offer judgment and then amends the complaint to show that it's in representative capacity these issues are very important they will continue to occur and there needs to be guidance from the court this judgment judgment the judgment of a court it's not like the judgment or rule sixty eight offer judgment copies verbatim what the defendant set forth but you moved to a man right because it was incorrect the st time in time it would have been a different we reasonably believe that we were just giving up the plaintiff's individual claims had they said they'd also include the class claims then there is no reason to accept the offer of judgment at all because then there's not this ought albatross issue of any of the penalties if those are included the players of course will proceed on a class action to have it certified in the judgement about class anything directly reserved class doesn't say understand there is a class no moving of the class all the features that you kind of want to hang your hat on if if that is how this court is going to decide this case that it comes down to the judgment in this case what the exact language is and that also is guidance because then it allows the plaintiffs and the plaintiff's bar to know that the defendants are not including any release you know any class issues or the ability to proceed to pursue them which is very important then the plaintiff doesn't have to accept it because they die or not going to face those albatross penalties throughout the litigation i think i will say the rest of my time for rebuttal and i just have a one to one there's no maybe that there's an obvious answer here and accepting the offer of judgment after the motion for class certification was filed i assume that that probably was trying to deal with some of our case precedent burnett and and carol but should we really play significant here on the timing that the offer was accepted after the motion was filed is that case law that is developed that there really even needs to be a class or for case in motion we just did as a protective procedural matter and if there's no further questions or reserve you have your full five minutes for rebuttal all right thank you think your honor i am i'll state quite simply our position is that this is not a class action it was not a class action the class motion for class sort of cation wasn't even filed when we rendered my offer for a rule sixty eight offer judgment in accepting the offer of judgment that's when the motion for classification came in and then point of move the court for an extension of time to do extensive discovery so it's quite telling from those filings that they never had a case for class there is no class the elements haven't been met i won't get into the trial communications between myself and opposing counsel but there is no class in this case and even if there was have accepted an offer of judgment which moots the plaintiff the name plaintiff cannot proceed under rule twenty three dollars class action because he no longer has commonality his cause of action has been settled and resolved and he accepted our offer of judgment which again to put things in perspective was over two thousand dollars in this case on a sixty dollars demand letter the plaintiff has been made to hold many times over now whether or not he has standing to proceed as a class on the basis that he's going to have to pay taxes on attorney fees is a is really mirrors claim in this case because that was not pled and neither the st complaint and then the nd complaint that's just something they came up with as a tactic argument visa v what this means for future class actions and i understand your your argument is that this is really not a class act and this putative class action but you've got this concern that defendants can quote unquote pick off would presumably not obtain relief if the class action is dismissed and that's the only effective relief they can get here so the argument is here within a very short period of the time of the filing absolutely and there are safeguards in place your honor for picking off of a valid plaintiff in the hopes and efforts of negating a valid class action or not allowing them their due in court and there's wilson there's you know there's a lot of cases that were extensively briefed in the courts in the district court's opinion and we don't phone i don't fall in any of those exceptions in my firm doesn't and the court goes into an extensive analysis of the sliding scale of what the court looks at when they're matter of trying to give direction in between the the the rule which is once a plaintiff as was mooted they no longer have standing and the exceptions and the exceptions are very fact heavy so if your theory is law i'm not i'm not certain what move the court to make those exceptions but what i would say is the exceptions i think are the intent behind those exceptions is to give rightful parties and plaintiffs their day strong guidance and that you look at the behavior of the defendants and you look at the circumstances surrounding for instance in this case the rule sixty eight offer of judgment why it was made when it was made when it was made in relation to the pendency or the maturity of a class a motion for class certification in this particular case one wasn't even filed so i think that gives a lot of guidance to courts as far as how they apply the exceptions to the  ok thank you mr ana thank you thank you your honor whether there is a class or no class is the factual matter there requires discovery the planes mark can only take what they know and see and make a prediction of whether or not there is a potential class party discovery turned civil jurisprudence upon its head as far as judged the par your question about a clear rule of the sliding scale i think that wilson in this case is one where you have the early pick actually absolute madness including the local court rules that allow the briefing so once it is if you look at the rule sixty eight offer of judgement case on this too is you allow the parties to go through this discovery method you can take away the name plaintiff which under duke's versus wal mart it but i think you can't you don't really need a name plaintiff because for example commonality and adequacy is on the type of the claim not on the on the individual person representing them you allow discovery to discover the plaintiff's attorney in a small case like this it's kind of hard you look at what you see you only know what you know you look at the websites you look at the i thin because it's a based upon a form letter there is enough to say that there is a class potentially class when you take discovery this is not a large debt collector such as such as a middle end that you know sends out tens of thousands of form dani letters here so the plaintiff's bar has a kind of gas and takes facts of what they know if for example discovery shows that there isn't forty maybe there's twenty say well there's twenty you're either still some cases and because of the type of the conduct in the and the consumers that are being dealt with that maybe there is a class here that can be certified if there's only zero or players the only one which is seems improbable then you ask the court to rule forty one because it puts pressure on financially distressed comparison was to hang in there offer judgments are useful if you take after this the discovery and you tell the place where because it's contractual the defense can write it all that they want we will pay you for your your plan of x dollars which is their individual claim and we're only going to pay you x dollars and attorney's fees so and we're going to cut that off because we don't think you should take in discovery in this the attorneys fees right off so there are the protective measures and so it is just simple you look at what the facts are in the case you make a reasonable the terminations whether to if there is no class to stop the litigation because that i mean that that's what should be done in talk about settlement and you don't even need a rule sixty eight offer a judge where you can just settle the case individually but in this case this is on a sliding scale with moon and wilson and other cases in which the pick off offer comes in early and the presumption the prime official case is that it was to pick off the plaintiff into in this case part of any discovery done i think that guidance is needed from the court on these e appreciate your arguments this morning both of you mr warner and hannah and i will take the case under submission and you may call the next case thank you