here all of the actions for all purposes they claimed it with necessary to ensure uniformity and consistency on a range of issues including things like allocation of fault and contribution and even the what the california rules say is that immediately upon assignment as the coordination trial judge two important things happen one is and this is three point five four o b and three point five four one via the california rules one is that the trial judge the coordination judge assumes all of the powers that the underlying initial judges had and two that he must and i'm quoting from the rule assume an active role in all steps of the trial including pretrial discovery and trial proceedings so what happened yesterday and all of the cases are combined for a trial at that point well what it means your honor it's a good question it means that he has the authority at that point to manage all aspects of the case and in fact he decides in answer to that judge kozinski race which appellate court in california all of these issues will go to and all of the rulings in these coordinated cases at uniformity are things that necessarily is judged called wrecking i have to take place through the trial things like punitive damages allocation of fault and contribution these are by definition trial issues and what happens your honor is when the judge makes those decisions in all of these cases all of the parties or certainly all of their representative lawyers are present and the judge can decide he wants for example to try and issue these cases for all of the cases when he is supervising all these cases and then if he decides that within his power he's not going to try all hundred cases he's going to try the first two or three bellwethers and then if the case continues some other judge may try l i had a question about the relationship between the federal statute and the california procedure because one of the exceptions to the definition of mass action does not include an action in which the claims are coordinated soley for pretrial proceedings and my question is whether under the california procedure plaintiffs can ask for and judge risk order that a case be coordinated solely for  pretrial proceedings so under the california law which of course hasn't been modified or updated by the legislature since the enactment of cafe the only type of coordination unlike consolidation the only  that in california this exception will never apply in your view and we have to agree with you on that in order for you to prevail in this case very good question ari it does not have to i don't have to convince you of that because in this case we look at the petition itself the prayer or the proposal is obviously the most operative fact here and in the proposal there's no indication whatsoever that this is solely for pretrial m well i think the language of the statute says that when you have a proposal to try a case jointly that is removable and then congress says very clearly if the proposal or if  consolidation for a trial purpose very specific language and at the language an ad that was we want this case consolidated through trial now remember in ad that it was the same procedure as here which is quite funny the same procedure proposal to try the case jointly and if i may just to follow up with judge kozinski question about the case both in at will and in abbott the plaintiffs expressly said they don't want these cases consolidated what they were asking for and in fact in in at in at well the very language why we specifically said and i'm quoting from the hearing in the motion hearing we don't want these cases consolidated they should not be consolidated we're simply asking your honor thawing one judge to handle these cases for consistency of rulings in judicial economy that's exactly what this proposal is requesting one what if this proposal had said instead we only asked for a consolidation for pretrial years would it would would you then have the same position i think your honor that that would be a very difficult question that you know i was going to be a difficult question not our yes or no and i think the answer is i would think that the proper answer under the fac shoot given that coordination in california for all purposes would be yes it through moveable but i think you would have to ask third question perhaps under california law about what happens if a plaintiff expressly disclaims any coordination beyond pretrial yet you know you view that as a proposal for a joint trial that is true your honor and that's why i don't think you would have to go that far at all in order to rule in our favor here so let me ask another question because you keep saying one trial would necessarily follow from this motion that's not what the statute requires is the statute all that the statute requires is that it be a proposal for a join of the proposal to try the case jointly it's irrelevant whether alternately it is try with muslim let me ask the question it's not you don't need to persuade us that a jury trial would necessarily follow that that is caricatures and we don't need to persuade us of what you characterize as judge ghouls position as you just need to persuade us that they proposed a joint trial in this case that this race and what other end is the language for all a request for a joint trial as i said i think for zero four is per se but in this case even if the court doesn't want to take such a broad ruling the court can simply look at this petition and this petition plainly intent here i think the best way to understand what the plaintiffs proposal was is to read the words of the proposal and they gave justification if all they did arguing likelihood that it will likely result and so it seems like that's your that's you're saying this is the standard proposal now i actually think this court has said even if it isn't going to result that's what the court said in dissented even if it isn't going to result in a joint trial if it's a proposal but when i focusing on the things like punitive damages and allocation of full contribution what i'm drawing the court's attention to is a way of understanding the language honor and your answer would be different but i think it might yes i think with then the court would really have to balance the different issues that were raised in that petition there's no balancing ground balancing because on the federal scheme you cannot if the judge no don't try and so forth suggest not to go it was it's up to the judge it is entirely up to the judges once california is judicial council takes a position for coordination and grants that it authorizes that judge to play an active role in all aspects of the case including the trial regardless of what the plaintiffs ask for suppose that the plaintiffs were very clever and they petitioned citing the language in the cafe exception of coordination solely for pretrial proceedings under civil procedure code for a four point one once that coordination petition was granted could the coordination judge nonetheless say i'm hanging on to this case all the way through the parties are before the coordination judge in santa rosa and the judge says i know that you asked for coordination solely for pretrial proceedings but it just makes sense to me for coordination of judicial resources in avoiding inconsistent ruling that you would give the district court well in all of the other states or what's the rule that you would give the just record some of the rules i think the rule is in california if you propose coordination for all purposes under four hundred four that is a proposal for could take a a thief lightly less rigorous rule and say in the situation where the petition is that war with the statute in the rules then maybe we're going to give more credence to the of the federal statute you just enough that it be proposed to be tried jointly it has to be proposed to be tried jointly on the ground that the plaintiffs claims involve common questions of our fact which is makes it in our guest to a typical class action question so why isn't the appropriate rule that the particular petition regardless of what state it comes from requests coordination or consolidation  all purposes or for trial because of common questions of law or fact or isn't that just the simple answer regardless of the niceties of california practice i think that would all to be a no without without having to parse the particulars of the state statute or rule look at the petition for consolidation coordination join whatever it happens to be called if it covers either all purposes or specifically covers trial and the reason is that the plaintiff's claims involve common questions of law or fact why isn't that just the end of the inquiry if it does that it falls within the definition and if it doesn't for whatever reason it doesn't i think in california your honor under four for that's that's correct and that's what happened what happens when you're part of after year when you apply that here you number one they are invoking for a warrant for and they are expressly thing they want this coordinated for all purposes number two they're expressing what all of the common questions of law in fact are and they are saying we want the coordination to have consistency in these issues as they go through the trial not just for discovery not just for pretrial not just for summary judgment but even for things that require an actual trial like is controlling except in this one proviso where congress they say in the event that there is actually a determination before the time for removal that it is only going to be coordinated or consolidated for pretrial illegal if you have a petition like this which is not express train for purposes of trial and a possibility under state law that it that the state court could do that white when it make more least way for a ruling from the judge about whether it's going to do this because that's a situation that happens even if you filed with one hundred one plaintiffs in one case it's possible obviously that the trial judge could say i'm not going to try these cases jointly correct but the exception isn't triggered in your hypothetical at the time of removal if the exception were triggered at the time of removal then there's no question it would be accepted but the other thing we learned from the succession is that congress wrec were going to be attempts to coordinate and to consolidate and they express lee said when coordination or consolidation has been effect weighted just in this narrow category it's not removable  it's the thing language that california always you that's under four of four corps and the language is that the case is coordinated for all purposes and then under the rules and three point five four  defendants argue from a false premise to reach an incorrect result they want this court to believe that a petition for coordination under california civil procedure code section four  which seems to be that's all that's required of our well i disagree your honor and i think it's important to understand that at least under california civil procedure coordination and consolidation are two different  that the end of the case for you while i want why isn't that if it's because coordination is not a proposal for the case if you try is really there and the judge says i'm going to tie these cases all together there's nothing you can say or we didn't most of us are familiar with is a related case procedure this is a way of saying to the court here are a bunch of cases that have that raise common questions of law in fact and therefore it is makes sense to put them have files a proposal or a petition requesting that one judge hear all the actions for all purposes and the basis of that is that the claims involve common questions of law or fact that meets the definition in the federal statute for a mass action and it seems to me maybe that's an overly simple way to look at it but class action which is also remov pleadings and what the plaintiff has filed remember they prove it or not at that point is irrelevant and similarly here once you have filed this pleading that appears to meet the criteria of the statu again whether it alternately results in the trial or it's settled or something else happens to it and i don't understand why that matters your honor it doesn't that doesn't matter what matters is whether have proposed that the claims be tried jointly which i think honest back to whether asking that all the actions you heard by one judge for all purposes counts yes but we've asked that all the actions be heard by one judge for all purposes we've not ask position is that this is a two stage process what we had when we filed the petition were a number of cases all over the state of california in different courtrooms we asked for the benefits of fission case management that all those cases be placed in the same court room before the same judge for all purposes for all ok now but when my question is did you want them to be tried together no we did not your honor then why didn't you say so because the issue of join think typically what happens is exactly what happened here i mean this this is a pretty bare bones petition we sent it talks about settlement i mean no talks about a lot more stuff but it's says the hoping at the very end when this is done you hope to have no  bellwether trials that would provide guidance to everyone about what whether these cases had value and what that before they're going and if i understand you know the big the big picture here this complaint was filed in state court what two years ago something like that you know answer filed  been two years fighting over whether it be a state or federal court which is the disadvantage to you to be in federal court there is there is no particular disadvantage of being in federal court your honor then why two years of fighting about it motions remain they were granted in thirty five separate courtrooms well at least at some point along the way you could decide it wasn't worth the fight and yet that hasn't been the plainest decision and i should share the curiosity and i speak to the result of this case but i understand if you have the same view and that is is there any requirement under california law that you seek coordination or was this purely voluntary this was this was voluntary your honor it was that the the court can do it on its own initiative that's not what happened but no but we know plaintiffs perceived it benefits of coordinated pretrial proceedings and we perceive that there would be a benefit to having one judge render discovery rulings rule on dispositive more or less like federal law i believe so your honor but i would not want to represent that i separate independent cases in these cases happen to have been filed with by groups of plaintiffs but this could have been fifteen hundred separate lawsuits by fifteen hundred separate plaintiffs each of whom sued completely individual and well and i'm not trying to be difficult i it strikes me that as i understand it please correct me if i'm wrong that that is the difference between the court needed rule and that and the rule for consolidating that that's exactly the difference your honor and that's the difference that i think is critical here because cases that have been joined together this is what sending this is what the seventh circuit said and bullard you know if you've got one hundred plaintiffs together in a single legal proceeding the assumption is we're going to single trial with more than one hundred plaintiffs but if you've got separate cases that have where there's a little back and forth about whether the whether the issue of joint trial could you that you have to make the proposal for joy to the court that is in a position to act on it you know ultimately the person who makes the decision to join trial in the california transferred to a single judge for all purposes that does not have the effect of joining them for trial in fact let me try to be happy you have to join if you only do this for prose but we haven't proposed that they be tried let me direct you we cite this in our in our supplemental brief let me direct you to perry to put a civil procedure provision for a three and the difference being for a three and four a four is that for a three governs non complex cases whereas governs complex cases code of procedure for a three says that you can that the court that after you file the petition for coordination the coordination court may order the case is consolidated for extraordinary powers including trying to cases together and i think we're talking at a substantive versus a presumption a question i can take a look at four or four three four four three says the judge also has the power yes has the power to order that separate issues  of the provision that says the judge can order it separate issues be tried separately right if there's this expressed provision telling the judge that when he wants to try things separately he has that you're going to have one trial that resolves all the issues in that lawsuit what that provision of three point five four one allows the judge to say no wait a second i think the critical issue here at particular given that we have lots of lawsuits is going to be this question about whether  you know whether we're going to let experts testify or something so i'm going to address that issue separately or we're going to separate trial it's kind of strange language it says the judge may order it separate issues be tried separately that does seem to just california it's california last any single just separate out issues this is in the coordinated proceedings provisions and it says if you want to try separate issues separately you have to so order to me that maybe i'm wrong but it seems to will be tried in its entirety and they need a separate order to not try ms romas case in its entirety but it does not start from the assumption that is ramos case will be tried with mr quarters case or any of these other cases that that assumption statute and how to interpret it the portion defining mass action we've been talking about what it means to those to be tried jointly on a particular ground and then the exceptions that follow proposal to try jointly can cover either consolidation or coordination for trial if it is beyond pretrial proceedings i think i think your honor the fact is that different states use the terms coordination and consolidation differently and somewhat interchangeably so yes the statute uses both words i don't i don't so right but they do mean i think commonly two different things consolidation means it becomes one case coordination suggests that it isn't just one case but it's being treated in some fashion together agreed so why doesn't that s leaving it all together which is what we're supposed to do to try to understand what congress was getting at and i think what they're getting at is not allowing artful pleading to get in the way of their main goal which was to take what otherwise might be class actions or something very very similar and putting it in federal court whether we agree or disagree with that as a policy matter seems irrelevant but your honor i think i think you are correct as far as class actions are concerned and in fact if one looks at what the supreme court said just a couple of those claims and there is a proposal that they be tried jointly whatever that turns out to mean but i think if we read that whole section yeah other it suggests at least to me that coordination is a form of jo trial for purposes of understanding this stairwell it except that coordination except that it's not because of the exception it makes clear that the truck ordination doesn't doesn't count the i think it's a right that that's we're back to forty five hundred s spent as best as plaintiffs together in one case one court room i don't know how they did it but there were forty five hundred claims formally adjudicated in a single trial it was in a class action like forty five hundred pla names were on the complaint somehow that was the the that was the singular example the congress kept pointing to and say this is what we are trying to prevent we're trying as the supreme court said in good the mass action provision functions largely as a backstop to ensure the calf was relaxed jurisdictional rules for class actions can not be evaded by a suit that names a host of plaintiffs rather than using the class device now contrast that with what we have litigated through class actions these are cases this will the n d l process in federal court was designed for cases where there are some common questions for the common questions should be addressed commonly and there we ultimately are going to end up with a bill with the process well it's more  we were to disagree with you is that in the state of california you presumably could not make such a coronation motion because you would then be asking for a joint trial defendants the california courts would be welcome to consider changing the rule if they want to get rid of this case and some of the federal court i'd like to i'd like the public just knocks over madison at that point you'd be asking congress to change its  here somehow interferes with what the state wants to do we can change the rules and you can say you can as a plaintive you don't have to play this game of saying for all purposes my we don't really mean it that we you know this right i mean there's always just say there's just you can just ask for purposes only there's always the sort of give and take but i think i'd like to i'd like to focus on one last point in my limited time remaining which has to do with the issue of bellwether trials because i think even defendants concede that this is not a case it's ever going to be tried jointly you know one hundred plaintiffs claims are going to be litigated so the question is what is a joint trial if not a trial with one hundred plaintiffs before the court we agree that where a where a case is would be binding on more than one hundred plaintiffs that that would be a joint trial even if there's even if it's done in some sort through some sort of procedural mechanism but the fact is bellwether cases are not binding on anyone other than the parties to the bill where the trial itself like they are binding under defen very useful purpose to educate all of the lawyers and all of the parties about how a lay jury is going to value this case and has certain legal rulings are going to get made but it's not a binding ruling and i think you could have that without having filed the petition for deep talk about a circumstance where everyone agrees that this case that these cases are never going to sit end up in front of you know a single courtroom where we're going to juda kate the claims of more than one hundred plaintiffs at the same time or that we will render any sort of judgment that will be binding on more than a hundred plaintiffs and yet defendants tell you that we have proposed a joint trial which is divide defined as a proponent here the claims of a hundred players be tried jointly thank you thank you i believe you have three minutes said justify trying the case jointly can for coordinating through trial i think trying to case jointly are those your words those are my words and the words are implicit in the specific form of relief and the rationale that they're provided it's regarding the other language in the proposal there were many other words that were in there that talk about discovery and pretrial issues do we disregard those words but your honor petition it said five factors discovery experts summary judgment and joint trial everybody would agree they proposed a joint trial the fact that there  inconsistency on the issues and the claims that are going to go through trial there has to be a binding impact there has to be a truly doesn't have to be everybody here in safeco field trying the case all at one time but the judge they are requesting again the focus is you can either decide it based on the rule itself in california and say to the extent people think it's unfair leave it to the judicial council or the legislature to change it or you could decide based on the specific language of the proposal but either way it seems to me that what this request is saying is the issues that we're concerned about go well beyond pretrial they go through issues that are necessarily trial issues like punitive damages and i think judge graber correctly pointed out that the statute talks about coordination not just consolidation obviously and i think judge her work properly pointed out that the default here once you have invoked and propose coordination under four for the default is that these issues will in fact try jointly and obviously the judge has the power to then decide some of these issues separately and of course the judge may decide to try some of the claims some of the issues in this case for example the science issue can propoxyphene cause a particular type of injury if they that with a joint trial on that claim and these are the kinds of things that happened in state court that would have an enormous binding impact on all of these cases again we have a case here with one defendant from california and very few plaintiffs in california they could have availed themselves of different