action it was proposed on behalf of six hundred or more former intel shareholders the allegation the operative allegation in the complaint was that intel had defrauded the class by failing to warn them and then  concealing the fact that their stock would be transferred to the california controller as unclaimed property where it would be sold out from under them automatically by operation of law the alleged deception as the complaint sta the class of their stock investments which then ran up in value thereafter dramatically in the hands of third party purchasers how the complaint asserts both federal securities claims and class claims based on california law dismissed with prejudice with respect to some of the claims and expressed without prejudice with respect to the claims that are subject to this appeal the judgment that was entered in two thousand and three expressly provides that the claims of the named prejudice all claims that are sorted on behalf of the class are dismissed without prejudice what we are seeking here by this that deal is to have that dismissal reversed and remanded so that it can be changed to a with prejudice on the basis of sluice of preemption why should we stand there are some issues you would like this to reach but isn't the case affectively over with the absence of the main point of having a claim or controversy no the the us supreme court addressed that precise question in there are issues not only for the named plaintiffs but also on behalf of the class the fact that that along the way the named plaintiffs claims become moot or decided does not necessarily moot the case o recognized that the named plaintiffs that was appearing before the court no longer had a viable claim the court said it is a separate question whether that person would be able to represent the class as the as the case went on but it did not moot the issues with respect to the class that were then up on appeal you know unlimited of course the appeal and that carries only into the issue of certification of a class that is correct but not all the other sides involved a situation where the class representative tried to get the class certified certification was denied the case went forward and ultimately the named plaintiffs settled with the defendant then another party a punitive member of the class sought to intervene in the case went up on it the judge denied the intervention motion on two grounds saying number one he didn't think a class could be certified and number two the case was moot because the named plaintiffs had no claims in this particular person because these claims were time barred have no claims the case went up on appeal the ninth circuit affirmed the rejection of the class certification but and that's what we're seeking here there is an issue with respect to the very same class with respect to claims that are now pending against intel in another case that is lying for you say the very same class there is no question no that are gone so why should we reach out in the song i think i understand why your client wants that why should we if your state of another way isn't within our discretion not to reach that issue i believe that the answer to that question is no i think intel has a right to have the ninth circuit hear this issue for the following reason or decide to decide the issue of of course your hearing is today i understand but to decide to have this issue decided the either of the two cases you just decided come almost to say that we have to the two cases that i just cited we should the two cases that i just cited to you i believe stand for the proposition that there is a case or controversy that the the issue is not moot we stand as an aggrieved party in connection with this appeal is there ending the state litigation area is completed that's underway but you honestly deciding the issue that affects a class that hasn't been certified represented by a party that doesn't have any claims for its collateral effect on a state court proceeding that hasn't even reached this sort of occasion do i have that about right you do you're missing a couple of pieces let me let me see if i can see what are before this case w plaintiff's counsel in this case represented to the court that they had additional named parties that they wanted to bring in and that happened in march of two thousand and three there was then subsequent litigation and counsel changed their the district court dismissed the name plaintiffs claims with prejudice the class claims without prejudice so what we have here is an attempt by the class representatives cooperated together to move the venue from court to state court intel had requested before any of the named plaintiff's claims were dismissed to have the question of sluice a preemption decided in its favor so that those class claims could be dismissed with prejudice under this court's decision in farmers versus mcdaniel and other decisions that we've cited in our brief when a party a defendant receives less than it asked for e when it when the claims are dismissed without prejudice when it asked for them to be dismissed with prejudice it becomes an aggrieved party that can then appeal to get what it asked for what's the standard of review if we were simply looking at that question the choice of the district court to dismiss without as opposed to with prejudice with the standard the standard of review that applies here is do no vo nobody is party tried to have a class certify the federal court went through the certification process tonight certification and then the same lawyers found another plaintiff and filed the same claims in another venue failing to enjoin that subsequent case now you know that circumstance as in all applications of collateral estoppel it's always for the second venue the second forum to decide what the collateral estoppel consequences are of a judgment good morning william w palmer on behalf of plaintiffs your honors were here out of respect for the court we lost the underlying case there's a few details that were lacking in the reply brief that i'd like to fill in for you quickly the motion to dismiss brought on the salutes a can claim but the parties decided to move forward on the statute statute of limitations timing claims and there was a summary judgment how the intel wish to preserve this claim they should have brought it in that summary judgment or at least alerted judge white and the plaintiffs that they intended to try to move forward on this was the defense they didn't the plaintiffs lost the statue limitations claim they were ruled to not be viable class representatives it's absolutely accurate my colleague pointed out that we did discuss bringing another class representatives but we discussed the case with them they have a right to select their forum and they chose state court have the opportunity to bring the sluice argument later they have a live case they have active class reps representatives now in this case there is no case of controversy my client's last what i hear property laws were being were found to be unconstitutional the way they were being applied obviously it's a real leap in logic logic to find that sluice an act of congress could somehow in the a nice and unconstitutional act so i would urge the court to look at four o two fred third nine twenty four it deals with intel stock the man in that case chris let's be taylor was friends with steve tucker they're both citizens of england and you know until recently neither of them ever set foot in the state of california they had their stock taken from them in england sold by the comptroller in the state of california and deposited in our general fund so i suppose  in other words a constitutional issue might have to be brought differently if there was preemption i don't know the thing i'm sure you know obviously doesn't prevent somebody from attacking the constitution thing what i'm trying with there's a i think one of the seven circuit opinions saying that it may be even more important to preempt claims that would be successful in the absence of preemption but are not successful with preemption that one of the purposes of preemption is to limit the kind of