some segments of the class are treated differently from others and so you cannot get being treated any more differently then class members with the same in the same class with the same claim with the same type of damage where one subgroup gets one hundred percent compensation and the other subgroup get zero percent compensation me try to cut to the chase here your position is that there's a nanny cam problem here come problem which is that we've got a single certified class but that that class includes both present and future claimants isn't that really isn't the case here that all of the class members have indeed already suffered the same injury that is that the failure to be informed of the manufacturing well that's one of the injuries that the classes offered many class members including my client mr west have suffered the damage of actual leakage that they're not getting compensated for and there are two different am kemper it's a difference it's a distinction but i'm curious as to whether or not it's really a relevant  well now i want to distinguish between there's the m come from with past claims and future claims and there's the em cam problem with some classes one through six getting compensation reimbursement not getting reimbursement for that reason is that is that in fact true about subclass seven i mean is isn't the question really whether or not the fund is sufficient in the long run to take care of this class of a category seven and the answer to that is no i because and i write that you're step ahead of me and i understand that would be your position and i would at least concede to you at this point from my understanding that that's at least a possibility but but it's not possible at this point is it to say that the funding will not take care of all claimants the problem is that subclass seven never got notice that they had access to that fund isn't isn't another pretty clear this up for me if you are any of the class represent the named point is members of sub category or category so they are not all right so i mean isn't it a huge problem here that three there's no one there in category seven among the representative plaintiffs to represent the interests of those claimants in category seven even argue whether or not eight million dollars is enough to kate take care of the present claimants in the future like this is that there's that's two different issues but it's correct that there is no if two different issues there's a problem that there's nobody representing the future claimants there's a problem that nobody's representing subcategory seven which includes past claimants well i'm only ask you this if i if i could mr frank on this same line in representatives with future claims that is not true here several of the class representatives currently own class vehicles and could have actual future claims so i think if there are certain is you know just because we had passed doesn't mean we don't have future lang's we might have lots of people have future claims so we're really like the the folks that objectors are saying are on represented what's your response to that i our response is that people who have pas future claims are different than people who just have future climes because the people with the past claims are more concerned about getting compensated for their past injury where they know that they have five hundred dollars of damage then  present problem that the swamps that it makes you think about get money now is that it i think that's correct but i think it's secondary to the subclass seven problem where you have a full subclass that's getting no his construct that set that that up but explain to us why you think that the district court accepted the rationale that this was a proper subclass  problems got to divide this up somehow so frequency of problems is a rational way to do it well frequency is not a rational way to do it i think that's a complete non sequitur frequency does not go to the quality of the claim it goes to the likelihood of the claim frequency in probability isn't that really what we're talking about correct well judge jordan mentioned the expert mr eads and i realize that mr  testimony and his methodology figured significantly here but isn't it true and i suppose this qualifies as something of a softball to you i recall from reading dr reid's testimony at the fairness hearing a week or so ago that he said yes we have this continuum of frequency or probability but nobody relied on my opinion as to where you draw the line where you where you fix a point on that continuum the warriors did that that's correct so whatever his methodology was  didn't determine the rationality of where we decide a certain probability is sufficient to place people out here in categor seven and i wish everybody would call them categories because it was very very confusing to begin reading these briefs and see the frequent references to subclasses which don't exist and why everybody else has some entitlement to present claimants that was not part of his that was not part of his opinion it was a completely arbitrary distinction because as you see in the appendix eleven eighty eight and eleven eighty nine you know some cars with a great much higher above average frequency in category seven and some cars with much lower frequencies are probabilities and in the first six categories and i want to the singers this case from insurance brokerage is going to ask you that if insurance brokerage is a problem for you i don't think so i think that actually does it create a problem for you if we are looking at this is an amp him we were ts it would create a problem for us if what they did was sudden million goes the first subcategories and one million goes the scut category seven and then we would be in a situation where we would be haggling over whether that was a good distribution or rent and insurance brokerage would say you can't do that but it wasn't seven in one it was zero may i ask one more question judge wendy's and because i know mr frank has reserved a considerable amount of time which is one more point with the adequacy issues that you maintain exist have been addressed a million rated were eliminated had there in fact been technically subclassing i think so let me ask you a question is it your position that the maintenance information that is given to category seven individuals has no value at all our position is that they have failed to prove that it has value that their only evidence was value was a pretty is was a defect of expert testimony isn't it essentially putting those individuals in category seven in the same position as if they had just bought their car in other words it's giving the same information they should have gotten when they receive the vehicles are purchased well the problem is is that the valuation of that it was the the expert valued it as the same value as a vote so i can personally sense a mechanic to every class members home and did the fix judge went to make kick me under the table since i like having raised that question of valuation i do have a follow up i'd like to  you carefully said in response to george wendt these question are you maintaining that the information had no value that they had not proven of value the information has to have some well could have negative value how if for example the information is go to your forty thousand mile dealer and get additional maintenance on this and we're going to do this additional maintenance and they raise the price of the forty thousand mile maintenance ten dollars and there is no evidence in the record one way or the other what folks wagon dealers who are not in this case who are independent of folks wagon are going to do if their mechanics have to spend more time on forty thousand and i'm i'm going to be interested to hear from the parties their position of valuation but it seems to me that the information has to have some economic value at least to people who do not members of the class who do not already possess the information and anyone else but that there's some time factor that in to that information the information has to have some value initially but doesn't that value dissipate over time isn't lessen over time as the information becomes more broadly the sum and a good expert report would have accounted for that but the main problem is that it didn't account for the cost which could very easily swamp the benefits  information provided the revised maintenance information has no value this position totally ignores the grab and then of this claim the plaintiff's focus in this claim was the absence of information to consumers we have a class in excess of five million ninety nine percent of the class members never had a water incident so the main focus of the settlement which we ha out with the plaintiff's attorneys over a number of months was to really meet the grappa men of their claim if that's the assume for the sake of discussion that the case how does that answer the  point raised by mr frank i'm happy to west that there was nobody at the table to negotiate for that ninety nine percent if it's true that ninety nine percent of them at that table when you were hammered out that settlement well they they were represented the class members themselves all had a very strong interest in the future they had vehicles and they were part of secondary so you've got a conflict you've got an inherent conflict because as income says you want cash now so even if you did want some later that doesn't eliminate your want cash now motivation which is the intra class conflict they point to how does how do you meet that how do you address that i believe this case is quite different than am camp where you had a major conflict from between people who were suffering from all types of especially those diseases and you were dealing with people in the future some who have not yet been identified in this case we knew all of our class members they were before the court and but that doesn't answer any judge jordan's question of alignment alignment is critical for adequacy purposes as we all know is mr frank correct that none of the representative plaintiffs were those in subcategory seven who claimed only future damage that it is correct that they were not only a month mintz men so how is that suggestive of alignment if in fact the differences are as characterized both by mr frank and by church jordan's question as far as their interest their main interest was going forward  and in addition there would be funds left from the eight million fun in fact there were three million dollars left that's what i'm trying to get used to i'm wondering how you can what you archiv reasoning is chase you're you're pretty emphatic in saying people with past or present injuries are different than people whose injuries are only now if you've got a person who's got both past and potential future injury they straddle that as you claim your people do i'm wondering what is the reasoning you've got that undermines and count statement that your current or past injury is going to be a powerful motivator and separate you from those who only other than asserting that it's different you have a case of thord you have a logical argument for why it's different i think it's a significant matter of degree the differences between the two you could not even a dent a fight class members in the am camp they keep the injured people have a tremendous interest in getting as much money as possible into a pot and  no one was representing the future claimants i think we have a difference here with class representatives having both reimbursement claims and the future claims and in addition to anything about whether there really should have been subclasses here not at all but that that unfortunate choice of language was used by the plaintiffs expert and i agree it is confusing these wasn't th e doesn't it communicate something real which is that these are folks with different kinds of problems so they should have somebody at the table representing their kind of problem as in any settlement there are lines drawn there there are compromises made and that was what was done here to the people in the information only class had one and it was a three to one ratio help me there were various reliefs offered here that there was a pure reimbursement on the eight million fund i understand it has to do with all the other cars that were not mentioned groups one through six  made yes but primarily on the claims rate but also design features were what was i wrong about the idea that vehicles were set into certain subclasses or groups and all the other vehicles that were not mentioned now thrown into categories him it's not wrong it's in part right but part of it in the overall scheme of the settlement was looking to what was the maintenance in from yes because their experience in the field was so small i mean even the west object is three out of four of mr franks of objectors did not have a water incident the one person who did mr west it was  hundred fifty thousand a ten year old vehicle so this was a very rare event let me ask a very hopefully very practical question here and it's hypothetical because are not there yet but let us assume we for purposes of the question that this panel determined that there was an adequacy problem that that exists and that is a consequence the class as composed and as a stablished based on frequency and probabilities and with these various categories could not stand as is how much of a practical problem which is also the say how costly would it be for the parties to regroup and fix this class allocation by subcategories mr frank has said in response to my question that yes subcategory subclasses would would fix the problem how complicated with that it's a difficult question i first of  all i don't see it as a problem but certainly it would it would take further work on this case it let me ask you another question based upon the i pathetically predicate that we were to find a and subclassing as an alternative should this panel reach because there have been a host of issues raised by mr frank as well as by the simply another issue raise if the case were to go back i certainly think that there would be a question on attorney fees which we raised and i think they were and that was one of the questions posed by the panel and i don't believe that there was an error opposed to federal law we've got valuations issues there are numerous issues here that have been raised with us and so my question again is is largely practical and that is should we attempt to help and provide any guidance were we to send it back by reaching some of these other issues perhaps counsel your colleagues who want to respond to this as well well it's certainly our position that this was a reasonable exercise of the trial court's discretion and the settlement should be affirmed but if it were to go back i think believe that the value valuation done by the court was was very reasonable she looked at the experts and missions of all parties i thought that she credited these submissions where they should have been she took out unrealistic participation rate such as one hundred percent she took care of double and sometimes triple counting so as far as the of the valuation i thought that was reasonable i understand the court's concern on this sub subgroup seven let me let me take you back then to the adequacy question if i might ask you a similar question to that to that which i asked mr frank and that is shouldn't we be troubled here by the fact that mr eads methodology was not what ultimately determine where the point on this continuum of frequency fell that in fact eades did not make that determination he was asked by the judge whether his analysis fit with the break up of the various relief and he testified that they did quite well and they kind of made sense to him that was not part of his the scope of his work in this case but he found that consistent i ask you about that in fact is the chase you had asked for pretty well bit excuse me argument and i've got a question here the the average claim frequency and i have to get specific for a second i apologize and there's so much stuff going on in  which was in category seven had a freedom we won three in a we could go back and forth like this but i realized that on the margins you know where you draw the line the hard but what are we to make of a wind that's drawn in a way where you have people with greater frequency of problems in the money excuse me not in the money than people who are in the money i mean that starts to feel irrational what are we supposed to do with that i think part of the problem is objectors can so came into this rat the late there was a very significant submission by plaintiffs counsel i think was about fifteen hundred pages on the fairness issue which discussed the whole history of the case we had anomalies that's part of a settlement there were vehicles such as the audi eight which mr frank pointed to w had very high claim rates and but part of that was this was understood by counsel there was a manufacturing problem before that car was released and that was actually noted in the submission to the court there were other torah what point at what point do we say these these you've got anomalies but but the fact that you've cut people on on both sides of this in the money out of the money dividing line and you can't say it's based on frequency because it's not based on frequency with these folks i mean at what point do we say well that's just that's a dividing line the can't work but we in this case we believe it didn't work and the trial judge to review this in detail and was familiar with the history of the case felt it was reasonable part of it was we worked on frequencies we also worked on the zine issues and we also worked on the unique variables that vehicles may have been subjected to even on the assembly and any case less support for the idea that the frequency of a particular problem justifies distinctions between class  see extent of the damages yes that is the type of factor that is used in the automobile industry in fact there were three service actions as part of this settlement and what our clients would do is look at the field experience that's very important they would look at design issues which is important it's really a poly centric issue and i think that this settlement was appropriately valued and it was appropriately distributed as far as relief and that was done through hard work of counsel who had lived this case for three years this was an extremely hard for what litigation where were it where or were that were this is not a settlement class this this case went through a a lot of litigation haw very hard nosed and i i compliment my adversaries they were they were fighting for the class and when we you know i think somewhat when we talk about did you have an appropriate representative i don't think that's the whole picture i think counsel and in the real world of class actions i think the council's role is very important and we have a third factor in this case we had an extremely hard working magistrate judge  it was the court i have to say that i don't fully recognize the settlement i've heard discussed so far today and i'd like to try to clarify what really went on and who's really in these groups because i think that that gives us a chance because i see  with the tide is going to i think it gives us a chance to to make you look at this a little bit differently let me let me try to clear up a couple of the misunderstandings number one let's talk about group seven first because that's really i think what's at the core of your concerns group seven is not a clear a group of people with future claims group seven is a segment of the people in the class that have had water damage occurred in their course and who have not had water damage occurred in their cars the same as all of the other six groups that dr eades created as a convention for his analysis isn't the whole idea behind the preventive maintenance information that if you do this you will avoid having a problem which would otherwise be likely to occur isn't that isn't that that's your argument for why the preventive maintenance information has any value at all right because if you don't do this you'll have problems and we've saved you money if that's not a statement of a future claim what is it mr slater what my point is this and i have two responses that there are people in group seven and all the groups who have had water damage occurred in their cars and who have not so i'm not taking issue with the term future claimant that's as good a term as any for people have not yet suffered water damage what we have in this case is something you don't have an amp cam you don't have an ortiz you know the any of other cases that i've seen and that the court is focused on its letter which is the ability to prevent the future harm from a point in time you don't have that obviously nam khem in ortiz where you have people who've been exposed to his best this and you don't know what's going to happen you don't have that on the table as an option this case stands frankly unique compared to those other cases because it has this aspect that you can give significant value whatever the valuation is that's a different discussion i understand that and i and i and i appreciate that comment that i think that really the concern of the objectors is the valuation not the question of value you didn't have that option in those cases so you have to look at this case i think differently than you look at him kevin why why is i understand that distinction is you can see the distinction you're drawing which is you may be able to prevent the harm with an automobile with preventive maintenance w it's going to do what it's going to do but how does that undermine the basic principle which seems to be teaching pretty emphatic lee that is if you have people with a late problem it may or may not  their interests are different and distinct from people who have a current quarter past problem and so they deserve some different i understand your your suggestion that well maybe they'll they'll never have the problem if we can help them but they're still a class of people who haven't had a problem yet and who interest is there four distinct and different from people who have had a problem are they there's no question that what you're saying is absolutely valid let me tell you what what i think we did in this case and where i think a lot of the misunderstanding exists here you have this option that we took advantage of to prevent harm in the future whereas exposure already occurred with these vets that we don't know who's going to get hurt now i'm going to tell you what i think the real to the real disagreement is of the real at what i think the interplast conflict that they see on the objector side which we believe is not fatal to the settlement it's among the people who suffered harm that's the real issue in this case the issue is not between people who may suffer what are in ingress in the future because that is every single person in the class hasn't has that same problem and we took care of it with the preventive maintenance information that prevents the harm the issue is how did we how do we split up or allocate the available relief based on our negotiation where the defense said this is far as we're going to go how did we come to an agreement that this is how we're going to say you're going to have a chance to get money now and it's not one hundred cents on the dollar by the way only the people in the service actions we're getting one hundred cents on the dollar to people you do have people in medical research that actually and that's what i'm exam saying if there's a problem to focus on that's the problem is that there were people who were given the right through the service actions the p nine in the jail you they got reimbursement right through that then there's the reimbursement fund and people were given the right in the third service action plus the other three groups of course to go to that reimbursement fund for water damage to their carpets or to their transmission control module and then group seven they're allowed if there's a residual to the reimbursement fund to make the goodwill claims so the question is how did we decide who has the right to go for money now and west to wait to see if there's money later and i say that is an insurance brokerage situation informed by the type of discovery that did not occur in community bank insurance brokerage however i did not talk about an am camera t s problem that and i don't think those cases remain mention i don't think so i don't think so i don't really think we have an am  understand but if but but if we think that there is one for purposes of resolving that we can hardly rely upon insurance broker there's no question i mean this is this is a judgement call for this court but if you look at things the way i framing them everybody is a so called future claimant and they've got the same relief for the future this is quest i'm sorry no go ahead with the question is how did we split up the money allocate the money and the relief among people who have suffered damage and that's why i say as to those people those people who suffer damage and frankly mr frank has an issue which i'm jumping ahead but how did you how do we split the money up among them and i think that's an insurance brokerage allocation issue and what the judge had to do was act in an equitable way and come to a decision that what we did was reasonable based on the fact that this was a very uncertain litigation community bank seems you see it's not like you can we said specifically if you had dealt with subclasses here you could have resolved this problem so i ask you when i asked mr chase is is the fact that everybody started talking in terms of subclasses you're kind of an indication that there should have been subclasses and how hard would it have been that's that's a great question that's the question i was about to go to and so great minds so so great minds think faster than ita i think you could always say in the abstract oh sure would be great to have subclasses because that'll fix all the problems because everyone will be at the table but here's the question this court has talked about it so many times are you going to balkanize things will be a stock and i think it's a legitimate business or not here that i understand and i want to see judge it's not a theoretical problem it's actually a very very practical problem in this case look at mr frank's clients look at he represents he is somebody who actually suffered damage at one hundred fifty thousand miles will be who's going to want money for his damage then he represents three people who didn't suffer damage so now they're going to say well i  we're concerned about the future now do we have to have a subclass and and i'll answer your question also do we want if we go back to we want to wreck should i say as a plaintiff lawyer and a trial lawyer please give us all of the direction you can on the trial level when and when  leaves something ambiguous it's always a problem for us because we don't know for coming back we'd like to know exactly what we have to do to fix a problem down to the t v obviously to be practical from its are also says that it henri seven receives which is th what's not because if you look at the terminology of what the people were told they were told something that it was interesting to learn and learn things as lawyers just cleaning out the debris out of your plenum what you pop the hood once in a while take out the leaves clean around the sunroof that is an important thing to do with these drains and also at a forty thousand maintenance don't flush it out where you can do that yourself so it's not a significant cost and what we learned is how they're made i'm sorry just how does that sort of hit the question of this doesn't that you have conferred a valuable benefit on a class he didn't say common sense what he said was he didn't even know it actually was and what he said was it's easy to do and when i asked him about value there's quite well he obviously valued it in the court accepted there's value because if you do this you're going to prevent water from getting into the car and causing significant damage and in fact i will say preventing the harm is far more valuable than having the harm occur and getting the money to fix it later i may get an answer your question are and maybe there's not a good to have to it from your perspective but you likened this to an oil change you know in a sense it is like that if you have to say to somebody if you've got rocks and twigs i down in the air or leaves it's a good idea to take them out have you really said something that is a benefit class or have you merely stated the obvious and then claim it's about well that's that's one of the things we did in this litigation is we fought and had to take many depositions to get the feel people for this company to admit to us what was going on it was in hindsight it sounds obvious but they weren't telling anybody and nobody was doing it and what we learned was the reason they weren't doing it was because this was how they kept their warranty claims down and this is how they denied warranty claims as quote unquote outside influence they knew when i had deposition testimony in this record we learned that you had the field people saying well you got to talk to the warranty people because they made a money decision if they gave this maintenance instruction then it's no longer quote unquote outside influence and when someone comes in with what the damage now we have to covered under the royalty and what we did is we changed that and this was not an easy fight and we had to get the top people in the warranty  department we sided not prefer this you know this isn't fair and this wasn't right and we shouldn't be turning these claims down so maybe it sounds obvious now but that's what a lot of the great inventions in the world are they sound obvious after someone turns on the light bulb it wasn't obvious they weren't doing it so i hope that answers your question that and it is significant value because again you don't want this to happen end and we put a number on it that we think is very defensible and then maybe some issues around the corners but this is a common fun case of the evaluation doesn't have to be exact to the pe not going to be you know there's three million dollars we know it right now there's three million there is right now there is three million dollars if you well the clime sorry to interrupt to get to the i think you're saying there the money well the claims have been know how much money is left five million dollars you do know we know the number it's about three million dollars and we have an interesting account so it's been accumulating interest so there is three million dollars there which you know based on the claims rates we've seen so far and dr reid's did evaluation and frankly that was my decision to value it one hundred percent because we felt that was the right way to go and we looked at boeing and reasonable minds can differ i suppose but we told him to one hundred percent valuation so he projected based on what number of people were out there the claims rates what the full amount every person with a potential claim out there for all the damage came in and made a claim and it came in and i think i don't know the exact thirty million dollars or something like that but in practice the claims equal about five million dollars i could get you the specific number but we have a pot of money there's three million dollars there that if if we've persuaded you that money is going to be available or here it's very clear that the car is in categor if somebody makes a claim through volkswagen through the goodwill program which is sort of the corollary to the warranty program you know you're out of warranty but the volkswagen dealers will give the money and then reimbursement a volkswagen will come from the reimbursement fund so the money will fix my and that's what i that's my understanding will funnel it through volkswagen as one of the attorneys in the case and that's what's going to happen thank you very much i was i was going to try for a little more time but i'm not going to be really i thank you very much appreciate the comfortable that we have given this a lot of attention and are well you know mr chase was saying hey the magistrate judge worked really hard this was an obese nobody's disputing that this was  noted from the questions we've got at concern and we appreciate people helping us with about twenty three a war and about some other issues and so yeah when you say please i hope you like oh no i didn't say that i wasn't saying that definitely man i was i was saying i hope that maybe i've clarified some things i would speak to two things very briefly one doctor is not the person to lay out for us how we should do the settlement i would take issue with that i think in a case like this it's for the attorneys and the litigants and remember one of the litigants in this is the largest automobile manufacturer in the world they have tremendous technical resources tremendous access to data which we provide through in extensive very very many months of confirmatory discovery to come up with this and then we have dr reads to value this because we knew valuation was important so that's my answer on that the last thing i want to say is again ask mr frank how many representatives does do we need to add to this settlement if we go back do we have to have a subclass representative for every single one of the models when does it end because the big concern and i don't think it's rhetoric and it's not rhetoric in this case is do we get to a big table and you have somebody with an outlying situation and says well you know what better throw me some money or i'm not going to make this deal  you suspect mr frank is when asked for divisions of category with well category seven you can't just have one class representative for them most likely in his plane his his objectors some of them come from the from the the service action group he has a golf client that got the service action the right to get reimbursement through so you're suggesting that sort of category seven itself lacks cohesion what i'm saying is what i'm saying is this i mean no what i'm saying is if you take his argument to its logical extreme because this court has been very concerned about taking the subclass route so far that make it impossible to settle a case because people who are being treated fairly in the whole say well you know what i'm going to hold you up and that's my only concern it's a very very good pursuit what so your concern is about re noticing after there's been another settlement and getting another group of objectors in that as a secondary raising my concern is practically if we do go back obviously we want to make this we want to make this the best settlement we can not have to be back in front of you and i can see my concern is who's going to be at the table before we say ok we can sign the piece of paper and i'd like to keep that to a controllable number of people and not people who can say well now i gotcha hypothetically if you do go back we need to reach the notice issue that's been raised two years since the case would have to be renewed i don't think so and i think our notice was was fine anyway the whole settlement agreement complies with the rule it's sitting on the the website i mean and and what about the fear shoes which really in terms of all preponderate here more than anything else i think that you know you know you identified one issue i won't go off and talk about everything else obviously you have read her preferred carefully i think the idea that rule twenty three h would not have applied to the attorneys is here it really makes no sense i mean and i'm not going to profess to understand dearie i didn't in the appointment of counsel it actually addresses some attorney's fees issues and then the defense would say well now you're going to jump to state law and skip twenty three h you're going to now you're going to stay you're going to slice through rule twenty three it really doesn't make any sense i think what the judge did below was was entirely consistent with our trucks and your best example you can have a federal case based on state product liability claims and you do it through the federal cases in the third circuit you decide how the fees are going to be awarded that's that's our thank you i'll start by answering mr slater's question you don't have to have any subclasses under sullivan versus the investments you could have one single class and everybody gets the same relief and we have one class you have but you have mr west you have they have a different frequency right that first that's a non sequitur because the underlying certification the class is everybody has issues in common everybody has the same injury so on and so forth so we have in sullivan as a possible well again a settlement is a compromise it doesn't have to be the case that everybody gets one hundred percent compensation it just can't be the case that some people get one hundred percent and some people with identical claims in the same class with the same representatives g zero and you know they say how old mr west car is but you have people in subgroup a or categories one through six who have cars as old as one thousand nine hundred seven you have people in category seven with cars as new as two respect no you should treat everybody alike with respect to the eight million dollars and five million of that is gone well the five million hasn't been paid out the five million of claims has been made to my knowledge they have not been paying claims and folks so i've been sitting on the money waiting for this court to rule i do want to go to the goodwill issue because nobody until plaintiffs appellate brief thought that category seven could collect money the didn't say category seven but said you're not one of the eligible vehicles the notice does not say that a category seven class members can make a claim that said appendix for three and in general we discussed this a page fifteen of our four sage brief the fact that there's this three million dollars left over so the judge found that there would not be money left over made her ruling based on the assumption that there be no money left over you know you don't just use the factual assertions made to us that five million dollars claims have been made now you're there are a million vehicles in category seven with a zero point three percent frequency of injury rate and an average claim of five hundred dollars all of them could be paid from the residual if there was every man's with instructions to give notice to categor seven that they can make those claims right now nobody in category seven knows that they can do that bait according to the plaintiffs what you do is you go on to the website you ignore what the notice says you go on to the website you ignore what the website says you go and read the settlement agreements and you make a contested arguments about an ambiguous provision in the settlement that the goodwill applies to categories of and the judge having done all that with all the care that she took thought the category stuff and doesn't get to make any claims you if you are firm there's nothing in the settlement saying that they're eligible other then counsels representation and brief and oral argument which aren't on the website either there's no way anybody in that class knows to make a claim somebody gets a notice maybe i should check this website for years later to see if they change their mind at that that doesn't work so you know to the extent that the defendants are going it's ok to have category seven without relief because they have different design features and they're basically different vehicles then you have a commonality problem you don't have a single cohesive class anymore if what you have is several different vehicles if category seven really has different claims that justifies excluding them from peculiarity relief why not throw toyota's in the class either these are all identically situated vehicles with the same claims in the same class representatives or they have wildly different claims where one is entitle to one hundred percent of relief and the other is entitle to zero percent of relief and that's they can't have it both ways i simply put wal mart vs dukes and permit that so what you could do is you could have a sullivan versus d p kind of settlement where you have different claims getting identical relief but what you can't do is you can have identical claim informational leaf one of the retrospective reliefs and the court found this this is facts of the court found it cos that's why i can fifty five million dollars to provide twenty four million dollars of benefits a class and that's with one of the higher frequency vehicles so it's not outside of the realm of possibility that the future relief costs more than the benefit it provides in provides an average of eight dollars per class member according to the optimistic ease projection which assumes one hundred percent ignorance one hundred percent people read the letter one hundred percent comply the letter and one hundred percent effectiveness and with all of those assumptions he comes up with a value of eight dollars per class member in that's a category seven once you start ticking away at those unrealistic assumptions and offsetting it with the additional cost of the forty thousand mile maintenance it's far from clear that this is a