well permission to argue but we are not going to permit that i pause as if you came expecting to but we will accept the brief for filing we are just not going to permit you to argue ok very good all right counsel for morning panel my name is barbara lyons i am with lafayette and coo makai and i represent condiment state and local solutions in form really known as xerox state and local solutions inc i understand that the panel has and i would like to reserve three or four minutes at the end i understand that everyone on the panel is extensively experienced with kaffir appellate decisions so let me open by asking whether there are immediate questions i can address to make the best use of your time this morning get on your own all right so what is the worst thing or oh the worst thing but the worst thing that it did was it completely dropped the ball on the second half of the governmental entity exclusion from caf a jurisdiction it did not consider in any way sove gn immunity so this the legislative history of the statute which may be moot in light of lapidus was reflects a concern that entities otherwise possessing sovereign immunity would remove and then play the i'm immune game and stop this stop the litigation that doesn't apply for a condiment it's a private entity it has no claim for software an immunity and if it had a claim for sovereign immunity there would have been an absolute waiver by the affirmative removal to federal court so that's the worst part of it there's simply no basis for concern that went has any claim of immunity either at the outset or post removal the second issue that the court got wrong was its application of state actor case law to the governmental entity analysis because a governmental entity is defined by nature by the by reference to its form and at the point that congress and acted cafe it was fully aware of all of the nine hundred eighty three precedence and the state actor and now a cease and had it chosen to it could have borrowed the acting under color of state law language from forty hundred eighty three and it didn't do so it instead said governmental entity now there was a little ball drop they are in that it didn't define it but there is other federal law that defines it with reference to forms of entity the a used i'm generous principle where they first talk about the state of the state agencies and other governmental entities implies that what they are intending is for it to be examined under the prism of whether this entity qualifies as something that is governmental rather than whether for nine hundred eighty three or due process purposes it conduct is attributable to the state so that's the that's the not show i don't have much to expand on on my brief on the i don't know whether you intend to entertain argument this morning on the local controversy exception the point there are the key point there is that kelly was a prior class action that very clearly was grounded on the same alleged wrongs as confident as as kendrick and kelly except that the kendrick and kelly complaint drops out most of the federal allegations so it's you know it creates a state law cause of action or at reckitt plead state law causes of action but it does so with respect to an enormous class and in connection with which the the amount in controversy so clearly exceeds five million dollars that it's difficult to see how one could argue that it in good faith that the plaintiffs meant something else and they are that is you know you look at the bar a decision you look at louis freeh verisign you look at the complaint and this complaint says hundreds of thousands if not millions of class members it claims are right to attorneys fees on multiple causes of action those are included in the i'm out in controversy for the  personally identifiable information claim the base damage award would be two thousand five hundred dollars so you'd only need two thousand class members to get past the threshold and i say that because ms kelly alleges multiple violations so we have multiple instances of violations we have a class of the masses we have we have injunctive relief costs to be considered we have an all of this is played in the complaint and we have the rights to attorney's fees so they are simply and for for the consumer you put all of this together of multiple alleged violations over time disclosures to multiple unauthorized entities there simply is no way to credibly read the complaint as having been pled as a five million dollar or less damages class then we should hear from your opponent and give you a chance to respond thank you ok good morning honest paul hofmann for the plaintiffs i'd like to address the state actor issue and also the local controversy issue and i have two points to make on the state actor issue one is that  district court in our view was correct and finding that kind do it essentially was performing public functions and was completely intertwined with state and that is that made it a state actor for the purposes of five da when it was counsel excuse me was there any evidence at all in the record that conduit any discretion in what they were doing i think the way that that was handled your honor was that first of all that it's their burden under surrounded what the district court found was under this court's decision and surround it was their burden they claimed that they lacked discretion but there was no evidence that they lacked discretion and the one thank liberation that was filed did not really address that point and address the numbers of vehicles and that that went through the tolls but it didn't deal with whether they had discretion and in fact i mean on the face of it that they are functioning by doing things like imposing violations for violations of tolls and collecting and doing the things that governments do and so the court in our view at least the court was well within its discretion to find that they had not met their burden and that they was decided in two thousand and two kaffir was promulgated in two thousand and five so it's not only because they had drafted the statute before the decision and just didn't bother to update it that's obviously what happened right you know what the provision was designed to stop and it has to the congress didn't want them screwed up and so what congress said in the legislative history makes clear in our view is that if you were within this category you can use kaffir that calf and that a case that involves state entities particularly something like this where you have a statute that's purely state law hasn't been interpreted very much of at all by state judges this is exactly the kind of case that congress wanted to be unstuck or then it would have said if i'm doing your opponent here is a primary defendant which i think you have to concede it is but we haven't we haven't challenged that in the appeals ok so except so then obviously the statute does whatever congress i thought process was it does cover i think it's less obvious than that in the sense that that is certainly the way to sr circuits have viewed it in the fifth circuit in the tenth circuit and the word case and the phrase a case which is the one that cited but neither of those cases they're going to account ones u s c section one which says that when you're when you're interpret in a congressional statute the plural includes the singular and so if congress really was it whether it had had made it clear it would have said all or at what it said is that the defendants which is plural which includes the singular which which based on the legislative intent means that if twined with the enforcement of state law within the statutory scheme as this is the fan that is and so if you're trying to avoid gamesmanship you would you would affirm the district court because this is gamesmanship they file an brief they don't say oh we're waving to or they don't sit make any statement about whether they're entitled to eleventh amendment a minute and why didn't they join they were they had a joint opposition in the district court they don't do anything with respect to removal they have the alleged private entity that's completely intertwined with them and is and is forcing the state law do the removal so they can make this argument here our suggestion is that if you use this to the principal source that story construction the reason why congress put this in place the fact that they had lapidus in front of them i think that when you say that they just made a mistake i don't think that's the way legislative should go right to you should say to make that that they put it in three years after lapidus they knew about waiver right and so there's no why would they put in a provision that would automatically be satisfied why  wouldn't i mean if conduit here wants to be left as the only man standing right in terms of who you're able to collect against and they want to remove why why would congress say well your primary defender you want to be the only one that can  actions one in federal court one in state court against the state entities where they're all response we don't know what the indemnity agreements are that never came out i mean the point we've had a state court that has the ability to interpret state law and you have the primary targets of this being the state that the target is there's no question about that it is true that kind of it is a primary defendant based on the fact that there are also a target but two of the three men defendants and the main the vendor it's the state that's going to pay this right that's that's the issue right and so i think that if you look at it that way i think the circuit should address the question of whether it's only one contractors well that's well you see that's the i think that there was dispute about that in the district court they tried to claim that they were contract which goes to the judge as was question about discretion right there you say well we don't have discretion we just do what they tell us that but there's no evidence of that and they're there in twined in the day to day functioning of this state system that includes not just collecting tolls includes violating people making sure that people don't get to have to have their car registration because they're taking action about that i actually don't know personally as manning the booth i assume that it's their employees that well that actually the way their works  brief sure if we've accepted it yes you can follow instructions but let me ask you just one more question so why doesn't the statue say a primary defendant as opposed to if your reading were correct why wouldn't congress have just said a primary defendant then that i don't have an answer to that i mean i also don't know the answer it's the way it doesn't say all i mean that's basically the the interpretations by the tenth and fifth circuit are this means all right but then sell it says the primary defendants which under the rules of statutory control pretension that congress operates under means this singular as well as the plural so we don't know the answer to that and i think that the what we're suggesting is that the a primary defendant or that interpretation of singular in addition to plural effectuate is the congressional purpose better than what the defendants argument does which creates the very problem or can create the very problem that congress seems t legislated to avoid remind me is there a definition of primary defendant elsewhere in kaput i don't believe so actually i think this court and chalion discussed what a primary defendant is and so that it's it's one of the entities or defendants that is primarily responsible for you know for for paying pay basically and so we haven't challenged what the district court did on that you're reading doesn't make sense to me because what but tell me if you envision a different congressional time what congress didn't want to have happen is that the case removed and then the plaintiffs have to go forward and they basically can only recover pennies from the the loan defendant who's who's there  problem and instead they're in state court where they don't have that immunity where they should be where the state court can interpret the law which is exactly what congress thought right congress the reason for this is that they wanted to exempt those the standpoint of what they were trying to accomplish and actually the this is a little segue to the local controversy issue which is which turns on this question of whether the prior case should be viewed as something for falling within the exclusion or should really be viewed as the same case and our argument and that is that broadwell disposes of the idea that a technical that that technical fact is dispositive completely and in fact what the local controversy provision to go back to what congress was intending was to avoid a situation where there were multiple lawsuits and they wanted to make sure that the federal procedures for multi district with a geisha and and for coordination of class actions would be available under the principle of bridewell i think that the fact that there had been they simply a false start and then and then a restart should not be held against because all the other criteria are here this again for the same reasons i argued about the first part of this this is exactly the kind of case that should be in a state court it's one case it's dealing with a new statute it's dealing with something that affects californians it's not about something that's nationwide or even regional your argument on this this exception and then they were consolidated so if you're taking a hypertechnical view of the statute you know they couldn't they couldn't get the local controversy exception and what this court said this well no that's not true they can solve that it's one case it's not all these cases plaintiffs although you can add additional plaintiff's attorney same counsel going has to be involved i don't think i don't think that the same counsel matters as much as the same person but i mean essentially this is the same case where i mean that's that's that's what that's what we that's how we see it it was filed there was a problem with her health so it was dismissed with without prejudice and then it was refiled and that's basically we would suggest either bridewell given the reasons for the the balance of her time to respond to all those points that you just  ride because bridewell was a consolidation case the cases became one case this is a relating case there was no possibility of consolidation by that point because kelly had been dismissed and they are not the same case because kelly had federal causes of action so if we're talking about a sleight of hand here what we're asking for what's being asked for appears to be to take a case that was clearly a federal question case call it a state case and sent them both down to a state court and i don't see the rationale in that on the plain language of the statute i believe that congress understands the distinction between plural and singular and that if congress wanted to say a primary defendant or one or more primary defendants it could have said so in the governmental entity exclusion instead it said the defendants there is a second error in the sovereign immunity is more attenuated and they have not taken a position that they have sovereign immunity i will leave their brief alone but i do note that there is a question of whether by joining in an opposition to motion to remain and there was a similar kind of waiver as affirmative removal to federal court they haven't addressed that and i won't speak to that because of that but it does seem as if the same principle governs that if an entity indicates that it wants a case in federal court it means it wants the case to go to through the federal judicial process this really is not a local controversy either the several bridges in the bay area you being from southern california  predominantly covering are traversing interstate highways so you have the golden gate bridge that comes down interstate one one you have the car keenness bridge and the bay bridge that go along and using and there is an interstate system for collection if you get an out of state tag you right away to the other state and you get the information and you try to collect so it's not confined to california on the immunity issue there is a very clear delineation between public and private entities and the cases we cited for you in our supplement state replevin garnishment or attachment statute there is also an over emphasis on intertwined meant here because the liabilities under the pianist statute are several the they are all independently obliged not to release p r i and therefore if they do release piet it's not a question of whether there is an agent immunity or whether it's done at another defendant's be hast it is did they violate the statute so the in twined ment issue is not really one that i'm sold on and then the contract issue isn't one that we had to plead because they had they admitted and alleged it in their complaint that there is a contract between the two and they laid out in their complaint the delineation of condo then xerox has responsibilities under the contract so  really convinced in any event that you look to and twined mit you look to it would be more rental baker are they are they conducting a state function and in this instance they're really the back office they aren't you know they aren't the people who are deciding they are not empowered under the statute allowing contracting for this purpose to decide what they're going to do in the way of setting fees that is it remains the tolling agency is responsibility bad as orgy g p s for them they are set for four condo and it's simply a processing agent's agency again the back office function and in the analogous xerox case the court said that doesn't get you there numerous of plaintiff's case has also addressed this issue of not having sovereign immunity if you're private i need  those cases include ballard and randall baker so so we aren't talking about an eleventh amendment to munity issue here certainly not for conjoint and most likely not for bad or the golden gate bridge transportation authority either ok thank you thank you very much one thing before we let you guys go this are often you asked for an opportunity to file a response to the amicus brief we are under the gun because this is a catholic people so