don't dispute that the district court has the authority under rule twenty three d to get involved change the message fix problems so it limits but that please don't dispute the first amendment stands proud large and protects still existing colleague judge arnold got it right in great rivers and they were succinct they got to the point we have appellate jurisdiction because the order is in the nature of an injunction is it dept is it that's my of course if it is in the nature of an injunction we have appellate jurisdiction why is it in the nature of an injunction to reasons that they are certainly certainly the the curative parts not in the nature of an injunction it's just the court doing what what rule twenty three d says it should do is it the communications of bandits it is nature and gumption it's both to respectfully disagree around the first one clearly a ban on communication as a prohibitory injunction is a preliminary injunction or a all ninety one he did that by the way your honor i think it's ok i don't it's why i'm asking is that appealable one hundred twenty one no when we didn't appeal but ok why this one was don't communicate until the curative order goes out because you all agreed not the only agreed that the case got stayed there you know had had to proceed with proceeded without a stay it sure there would be no communication to ban an order within their but there doesn't go away what he did say i'm slow going that the judge's order he didn't say don't communicate until the trial on the merits he said don't communicate until something else happens which i anticipate will happen quite shortly and so i'm trying to figure out how that arises to it surely tells you not to do something i agree to join you from doing something but is it the kind of injunction we can review under twelve ninety one you can because rules like the five temporary restraining orders are good for ten days or less we are way beyond ten days there was no guarantee in the judge's order that we have appealed that it would be ten days or less and fact it was clear in the order it would be longer than that because they give a timeline for us it is a and to answer your prior question it's also a mandatory injunction because it requires communication so that in your view every rule twenty three d order which requires communication is immediately appealable i know this one is judge and i think you've gone too far with your hypothetical well you said it because it it's a mandatory injunction because it requires communication and it isn't every rule twenty three d order something that requires communication there are those that one the answer is yes it does but there are those that require permissible communication community that now you're getting to the merits see that's why i'm just trying i'm trying to focus on jurisdiction doesn't every rule twenty three d order require mandated so we communicate not everyone judge the bill the scope of the remedy is brought a judge district court can say stop doing this now i just am talking i hate i hate that i think in certain certain circumstances it does when it's prejudicial it does prejudicial that prejudicial is not the is not a is not the measure we take for appeal that's what we decide once it gets here i think your position has to be yes it if there is no problem no harm no foul and i don't want to impose upon the ninth circuit or any other circuit more work and more appeals because i answer yes to your questions i just can't say that it's correct so let me ask the question differently and now i'll try to sit back for a moment but what harm do you suffer that couldn't be remedied at the end of the case in other words let's assume you don't get class certification remember i'm the defendants i  can't we just reverse it i don't believe so it's just not another of these circumstances you said you said divine the first amendment was violated we can't we can't reverse judgments when the first amendment is violated we're one where a small us but that's why i ask the question why can't it just be handled at the end of the case it can't because in this circumstance one no contact is no contact i literally can't do in my case and the district court judge i believe recognize that over brett by vacating an oral argument because we were precluded from defending ourselves and then after that the district court stayed the entire case for the same reason our hands are tied we lose our so all our senses we cannot communicate even the apple lease cannot communicate because if they want to challenge which is the remedy below if they want to challenge the declarations they're concerned about if they want to attack the settlement agreement that are being pursued i'm presented in our courts of upheld they can't talk to the putative plaintiffs either it's a complete shut down this order there is no blanket prohibition because it shuts the case down on both sides that can't be cured we just go along in the dark into what happens and that's why does exist we should get on board with the eighth circuit we think they've thought about it they've addressed it and when you make me force communication but when you preclude it entirely it's it's it ought to be addressed immediately under twelve ninety one they will not you're not permanently precluded from communication though it's only until you send the notice right any time a judge issues a twenty three d order that says in essence we think you made a miscommunication to the class you have to send a curative notice before you can do anything else that's going to be immediately appealable i mean that's now maybe maybe that it's not the bad result but that's what you're saying especially essence a lot more work for the for this court maybe it has an image of affect on the district courts but i love to talk about the facts all day long because there's nothing in the facts so i'm interested in jurisdictional question but there's no record below it ought to be big kate and we ought to get a record and then i think you're in a position to make a better decision but jurisdictionally this is where we belong i'm sorry judge i don't believe it every time because that's too much work and and i think there's some good curative notices that go out and i think you counsel thank you basically was a dispute about the proper curative notice and two and injunctions for the purposes of getting jurisdiction before this court as the court pointed out the so called  twelfth two thousand eight hundred order by the court if only temporarily prevented the parties from communicating with the putative class for ten days while there was a meeting for requirement after that it i want to ask a question about that because i couldn't tell from this record i know the proceedings in the trial court have been stayed correct yes by the by the trial judge yes so i take it that means does that also mean that the communications ban has been stated in or another which one could stay proceedings one could say i'm not going to i'm not going to continue with the proceedings in this case until i hear from the court of appeals what does that do with respect to each side's ability to communicate with the class if a curative orders given out has that been stated well for plaintiffs point of view we cannot communicate with the class because the feb twenty link and in the absence of an appeal what would have happened was presumably you all would have used the notice and communicated the proceedings below have been stated please or anything in this record it tells me whether or not while their sta people can't give out the notice and communicate you know there's nothing specific from the court however both parties have a soon that is the key i did or did that's the way you do both do appear to have so assumed i was just trying to figure out whether somebody instructed you in that way no not at all your honor the reason why the parties have done that bundle of caution and or to maintain the status quo because that's the whole purpose of the state and the appeal obviously if we were to run out they were to solicit more  represented to the motions panel in your papers that don't worry we're not doing anything right now they don't need to stay as actually but it doesn't change the fact that this is a temporary order it was only meant to be in effect the handful of days it took the parties to purposes of discussion what his remedy by way of appeal i mean does he have a remedy by way of appeal at the end of the case that gives him any i mean you have to at that point the   in this case actually we have multiple classes we have a class in the fs l a under rule two sixteen and then we also have a rule twenty three b three class and so there's probably going to be noticed actually issued in conjunction appealable order however as a discretionary matter as as a discretionary matter other rule twenty three of course however the other thing too is not take me to the end of the case let's just put it and for purposes of the end of the case mr armstrong side loses and he's very unhappy about this notice what how can we fix it well there's two main issues i think that were brought up in the notice first is this fs away waiver which is whether the  waiver in the settlement agreements listed by defendant in this particular case or enforceable this is something that could be decided on peel and should it be decided on appeal the parties get their answer i answer that's binding on everybody additionally the other issue that was the primary driver of the corrective notice was these boilerplate declarations that were being solicited obviously if these were admitted for evidence at any point that that evidence could be a ed whether or not they should be amisse it into evidence of what weight they should be given so at the in the day there are remedies available to the appellant so should this case actually come up to final appeal and there really isn't any prejudice here because within the corrective notice there's nothing in there that is inherently prejudicial more fact all the points that judge use and made it his corrective notice or points are valid points of law that there would be a fairness here even if there was any settlement that the fs allayed does not allow parties to settle their case without the involvement of the department of labor or the dis itself that of course parties have the right to counsel the parties have the right to seek documents before they sign up all these things are simply statements of law that are well accepted and not prejudicial to the client the two up t and i think that actually dovetails into the merits of this particular case one of the things that opposing counsel mentioned is that there is just no record here now looks like we're all agreed what the standard of review is here of course in the gulf oil versus bernard case the supreme court has stated when there is some sort of prohibition on communications with punitive class members and needs to be based on cl record and the supplements of the excerpts of the record you'll find that appellant submitted to declarations in the defense one from the counsel one from the gentleman that was actually having x party communications with the class members defending himself and you have the documents we also have because you know you have to talk well the only way we're actually able to get the documents again somebody was trying to get into that you had and we have the documents because they actually contacted a representative a member of the class and so through that contact we were actually able to get the documents but this actually brings up the court's finding of facts the court's actually made specific finding the record and we can see this in the transcript for the january thirty first hearing from our facts specifically the transcript at pages forty two to forty eight of the record indeed the court first looked at the situation doubted that these in person type of solicitations are exactly the type of solicitations that had been mohnish by the supreme court in previous cases from our fact there was even a  circuit case heller on this particular matter that stated when having in person communications with the class and allows the defendants to exert pressure on them and force them to basically take the offer without any counter information our ability to basically discover additional facts also it prevents the court from exercising its profit they have to protect the class because most of these communications would be in a media that's just not  will and that's exactly what we have here in the facts of this case is undisputed what mr griffin did when contacting the putative class members he first started off with text messages and e mails and these war extensive america back from mr burt burnham he contacted of four times and twelve days between august and september of last year and when he did answer those ones he contacted him yet again in december of last year to try to get the settlement at that point he actually was rep is represented so this is another violation  but after he secures this in person meeting we have information from this cromwell who stated that he wouldn't release the documents to her so she can review all with her attorney so i defendants are also and that finding a fact is entitle to deference under the clear air standard now as we also mentioned the court found that the fs l a release to taint in the settlement agreement was troublesome if not downright unlawful and this is also supported by the case law and it hasn't been disputed by the it polls here the parties cannot release claims without the supervision of the court and this isn't a rubber stamp there's actually several cases that have stated that these fs allayed releases will be the nod if they involve claims that are just completely outside spew kind of like under rule twenty three b again here we particular instance again the the defendants in this case have had improper communications with the class but more importantly they have represented to the class that they do have the power to  settle these claims without the involvement of the court and that these claims are actually settled how this is directly prejudicial to the class because after that it's a way specifically section two sixteen b unlike rule twenty three class this has to be off to class we actually have to then subpoena that class members to opt in and that they actually have a plane so by stating that they've released the clain they've schildt the participation of the class additionally then we move on to the declarations the boilerplate declarations the court specifically found that these declarations were made without the input of class members and not only stated that they don't have claims against but also that others don't have claims against the fed and then attempt to chill again the class action now evidentiary issues aside whether there was foundation for these statements or whether these statements were pollutions of law it's problematic to ask a declarative to issue a declaration without any input in its writing at the same time that you're offering them a large check additionally ethical concerns as well as was pointed out by the northern district when into these such as corporations are dealing with representing members are members that aren't directly represented by the  entities council they into these council has to make it known that they might have adverse adverse position to them and by you know issuing these declarations that might be used against them and their coworkers and this simply wasn't done the court goes on to state that some of the declarations mean some of the disclosures within the settlement documents were simply misleading and again there is support in the record for this we have the documents themselves so we can determine this from the face of  where defendants are interested in pain the individual additionally there is no reference within the disclosures that state that the individuals through the settlement will get paid for their entire claims and then even  suggesting that this is that the settlement amounts were actually complete compensation for all their claims is simply what is it under the fs a way of course we have trouble damages which the settlements didn't take into account you look at the declaration through sells the settlement agreement as releasing claims that can't be release the fact that there was in person communication the fact that those in person communications withheld documents from individuals so they can review them with their c the record is clear and the finding the facts were clear is that before judge used them below that there was harm to the class now in balancing that this against the interests of the defendants the only interest of the defendants had was a commercial interest in this particular case and commercial speech is not protected to the same amount as other speech america fact there's plenty of laws out there that prevent cordial speech from being false and misleading that nobody's done anything since since the appeal was filed no one is willing to risk the contempt or if it is a court judge so when i'm not in this courtroom which gets us to i think something i want to make sure we've already discussed great rivers issue i think you're wrestling with the tour which is to qualify as an injunction what must in order be and it goes through a four step process it's at three twenty two twenty three but in summary it says it has to be directed towards a party be enforceable by contempt design to a court of protect the substance of relief and threaten a serious or perhaps irreparable consequence and therefore rendering it challenge will only by the media feel i think that's thought been fully briefed but i do want to flip the side to as we talk about the wayne that we're concerned it did not occur may regard as the i believe view that our speech is maybe not as the worthy of protection as other speech is where does the burden lie this is the way that should have occurred below the go forward choir's and at the ninth circuit has recognized and domingo and that is can we fix the issues that the apple e's satisfied with the contract trot out the contract offenses that is the forum that is the place for resolution not here it's there and the remedy exists and could have been fully  in a small twist of irony the at billy's lost that ability when they saw the relief below they could no longer gather their evidence to attack the declarations they could no longer speak to the individuals and find out did they in fact feel they were remedy without one i think all four makes a very good point twenty three d exists to make sure that we are further rather than hindering the purposes of rule twenty three this court has an opportunity in case to ensure that our thirteen district courts into territorial courts understand that one gulf oil is alive and well we meant it and domingo to we this court court can judgment on these very agreements standings do we have a specific procedure in california adopted by our courts of appeal that says you want to go get settlements we think that sufficient a little less time in the courtroom this circuit can tel litigants and wage and i was very active this is the way forward gulf oil is alive and well pick up sticks is alive and well and if you want to fight those issues out we'll even consider them on summary judgment there's no reason for decision by the court