the constitutional doubt can and i mean if we if we didn't have the constitutional concerns is there any reason to believe that the statute just on its own doesn't give this to magistrate judges i'm not sure there would be i think it's all about the constitution isn't it oh i think the constitution certainly matter and i would be considered pardons really isn't the real issue in this case whether or not you're going to have were than one class action i mean that really is what it comes down to there's no way that this survives as a class action where you get  think that i think that's the first question was asked in answer and i got to take this on so if we agree with you on the constitutional issue or the stature issue which i who want to call it how would you have c equivalent of showing up it might be and there might also be ways to try and comply with the seventy three could be that the class council having their point it could then send  that's exactly what's going on so i mean that is one interpretation of what's going on but what if we think the statute doesn't actually define absent class members as parties and the statu but so say we strike that part of the brief because they didn't give the notice now so we proceed i guess that's my question well i've never actually had to address this in a recession so i don't know if that would cure the problem or not but i mean i know they frame it that way but i guess it didn't quite make sense to me because it seems like the statute isn't exactly the problem it's not they have to kind of turn somersaults in my view to get the statute to be the problem it seems like the constitutional question is the problem well i think the statute is the well i mean these are the due process thing behind that case but that case so there's the refusal statute right and you've got to get recusal to work and it seems pretty intuitive that whether the money is coming from an absent class member name class member the judge has a problem i not the cause is there to be a constitutional problem here that's how i see this not really whether we call them a party or not under the statute in that case i would say he statute and today had three reasons that it felt like this would work and here at least two of them don't apply right well i think today has this tension right because it says there isn't a concern but then it sort of says there is a concern because we have these three reasons that make us feel better about the situation and so if those three reasons are necessary to make it not a constitutional problem we don't have all of them here class was not giving up the statutory remedy in money that actually existed for them because they didn't have a good claim those factors are very different here are thankful think they may not have a good claim they may have  all the way down the road but there was evidence of damage and here there is a great well there was in that case but i sort only after the court there assured itself first that there really wasn't one in the first place because they didn't have a but also ok so i mean it also spent a lot of time talking about how the injunction was very substantial in helping the class which we have many problems of that here doesn't seem like it substantial not all the class members are benefited some of them probably don't have these loans resistance by our ass result that ultimately in getting religion so they finally came around and said yeah with chip we changed our practice and we changed the practice in august of two recovery but that would have involved noticing formally in class members as a practical matter that makes no sense that only is because you expanded the class so much why didn't you stick with a smaller class of that the amount of money available is more in line with the forth i have them here but we went down to state zip area codes and we could not get to a class small enough would have changed the practice it would have cost them three thousand dollars but seems very hard to put the question is what does the injunction add that there are and how staff are there outside counsel why would you ever told him you better  class members lost any substantive rights nothing there was nothing taken away from this place there was no release of class release so what you get is the class gives up nothing they get some benefit but the wrong doer agrees to comply with the statute under the penalty of contempt if it returns to its old practices now that is a value i'm aware of cases w but you could settle a case of any patients you want to but you're getting a court to issue an order based upon a remedy that doesn't exist what the remedy exists i mean this is a settlement so they can agree the question is whether this agreement problem that some of these people probably don't have these loans anymore i think the way judge crawford addressed that she said that the injunctive relief college directly to defend practice of making such costs and i looked at some of these people are never going to get calls again it doesn't matter it's true they're not going to get again and i think we run the same problem the question is does the injunction address the practice generally to the class i mean it seems like you're relying on the reasoning that our court had said before wal mart at the supreme court not after