we actually get started to housekeeping questions we got the court's order yeah allotting one hour total thirty minutes per side as we counted them there were actually four sat four different appeals going on if we if the court would indulge us for five extra minutes hour and five we have that divided that thank you i will we will take twenty  that before we get to all of that park with the threshold question of whether we have jurisdiction whether there is jurisdiction in this court to entertain the claims of the interveners on the to appeal are those who are a student of to figure out that they need to formally intervene which doesn't give you anything you haven't done anything else if you have objected below if you have actively challenged the settlement blocks your view only ones that really for short treatment it was the first four months because of g e s determination that it should wait until the settlement the court finally got tired of waiting for certify the class at that point it was not consumers into thinking that the dishwasher is not be repaired in new york need extremely strong case in connecticut is the class action that was moving for summary judgment against collateral estoppel frowns because the new york judgment for it seems to me the judge patel made a very very careful you have to rely on some source of real information and the source i gather you're relying on is the actual order of the new york court before the appeal ok and what is the standard of review th o what the facts were before the court by law from filed the first nationwide class action in isis which court in tampa under we go we also advance various common law and one statutory claimant or a four deceptive trade practice the lawsuit was met with a motion to dismiss that hearing before united states magistrate we agreed that the enterprise theory allegation was the fact that so rather than have the recognition go to the u s district judge that a claim dismissed we asked for was given the right three plead our complaint which we did and changed the enterprise theory which happened to coincide with a decision by the united states supreme court in the don king case weiss a law firm who is also one of the california counsel contacted us to seek our cooperation and litigating with them the very same claims i provided to them the complaint which they filed in california which was eventually consolidated with the case that mr donaldson was the counsel and when that trigger at least some sort of co counsel relationship or at least you know you may be counsel to the other counsel which might suggest that you could build them directly for an appropriate i've never thought about that i will tell you why i think we were you know back to class council in this case named counsel look at the time this case was filed you had plenty of opportunity to make an appearance prior to the settlement and it never happened i may never have filed a notice but i appeared on behalf of the plaintiffs in california at a deposition in kentucky as a result of the coordinated efforts to advance discovery against me and i was the only one there for the plaintiffs here in california and i took the deposition  several present were former employees of g e while mr donaldson was negotiating startlement that i helped him craft with g e the attorney for g e in house and they had an only to a party having a right to  judgment the rest of my career you know i'll remember that but i thought what i did was right and the fact of the matter is general electric knew i was there general electric encouraged my support honor let me start first with the the issue of standing since you were the first issue that was raised and while it is laid out in our brief and i'm not going to spend much time on it i think the notion that somehow this court has already resolve years ago in marshall the holiday magic really overstates the holding of the case i think the question is fairly joined by the supreme court's decision in gavel and they were very careful to limit that decision to be one class actions and for good reasons chapters the opportunity to opt out they have their own actions pending they have every right to pursue them and continue them they chose not to and in those circumstances i think there's a very fair question as to whether or not they have seen any and i submit in the unique and that's the reason for the class action you have to push through in the context of a class action so the only way they're going to better themselves or to get a better class so that we have no plan a practical remedy is that well i think in the case of certain people that is true and i would agree with that i would stand by mr levy that judge patel didn't say anything didn't consider anything other than you conclude that the lawyers were jealous and greedy that's just not fair and it's not true and if you read the transcript  supposed to the argument you heard today you will see that judge patel went carefully through all of the factors relevant to the settlement she queried the lawyers for the objectors on several occasions as to what they thought was a fair they're coming here claiming that this one is unfair what do they think is fair and they couldn't answer the question they were asked several times and in fact with respect to the new york decision which again they claim judge patel w so in the first instance we talk about what is a matter of record and that's put before and that's clearly not mis informed of what you must have some sense about what he's talking about when he talks specifically makes the allegation that was there was misinformation communicated by the number of stolen plaintiffs and the amount and so forth g e made certain representation but i was not in a position to do that i had no information to make any sort of representations what i was able to do was simply read the decision and see what the court said as to what one would have to prove in order to be a participant in the new york action and it was a far more difficult burden of proof and a far more limited class of people that are in place by the class  of the class element gets released everybody no matter what their circumstances are if they fit within the group in new york you have to go further you have to prove that you in fact would not have bought a dishwasher unless you had with these disclosures these allegedly false disclosures disclosures that we believe are false as well and acted in reliance on them now g e gave a qualification to the court as how many people they thought at that point in time would be entitled to recover as i understand the matters that have been submitted subsequently the number is larger it's still far smaller than one of them the case here but i don't call that misinformation i call that people reading the decision and telling the judge what they think ma until the actual process occurred now lastly i want to point out about new york i mean what we have in this case is we had a claim that people who bought a dishwasher for two hundred twenty nine dollars that's what  dish washer cost what did they pay for it after the rebate they paid one hundred fifty four dollars for it and they gave up an old machine on top of that they got twenty dollars or fifty depending on whether you look at it from the cash standpoint or the becomes under restitution theory are they entitled to more i look carefully at the law i frankly just agree with what the new york court did i think it's great if you can get that but i don't think it's something that could have been a change in this litigation i don't think lawyers should be making settlements based upon class in the area oh that just regards what i believe the african law of restitution be which is the difference between what you receive and what you part with here received  twenty nine dollars in value and you parted with one hundred twenty five dollars now you have you also parted with all machine it only cost twenty dollars to buy it new is it worth one hundred dollars or seventy five dollars after it's been there for twelve years a compromise is a perfect settlement there is no such thing as a perfect settlement we tried to craft what we thought was a fair settlement the circumstances taking into account the risk of litigation what we've done before judge patel for some time junction motion she laid out in clear detail what she thought the problems with the case work we took that into account i think that's what responsible lawyers are supposed to do and that's what i think we did in this case last on the subject of jurisdiction are subject to the type of aggregation rules that apply to class actions and in fact there were two cases down in the the northern district of california where this was brought in which the same issue was framed in the courts held there was jurisdiction you could look i believe clearly applies to the party and the party is not this aren't differentiated group of people in the general public and keep in mind this case i never thought of this case when it was brought as being a case it's limited to the economic loss to the particular owner of the dishwasher when we first brought this case the issue really at the forefront then was the fact that these dishwashers were still in the stream of commerce and they as such the people that are affected are truly the general public i mean if an apartment has one of these things and it catches on fire it's certainly possible that the damage can spread to people other than those people  dishwasher but let me get back to your point your honor about whether you have to throw it out there's a second ground in this case wholly up apart from the first city for jurisdiction there is a separate rico case that was brought by another california counsel was non class seven thousand two hundred claim there is no case in this circuit that that's been rendered to date that i'm aware of that holds the fact results in a finding that there cannot be diversity that came out of the northern california that was the very issue raised in miers and judge for a cal no in any non class action seven hundred case we will look at it from the defendant reckon i really recognize that but nevertheless it was certainly the key issue because that's what they moved to dismiss down judge work rejected the argument came up here in this court ultimately affirmed the ultimate decision kate the fees in accordance with the order i read that to say that as a contractual matter is that legal matter is part of the court's order i'm not supposed to be turning around and giving giving fees out inconsistent with the order i think the fact of let's start off in response some of these questions about the new york case it was a summary proceeding before the trial court in new york it was brought by the attorney general in new york as the summary proceeding there was no right across examination there were no discovery there was no was she heard about it at the fairness hearing she heard she saw writes about it from the objectors papers she was she was fully aware of it and nothing's changed since the fairness hearing except for the fact that we didn't win that we are human and we didn't win that appeal that opinion is the same one that the same one that you were viewed at the time she made her fairness determination is the one that's in effect today now we know from the from her elaborate on there one thing we did say was that we hoped that the amount would be limited to about two hundred new yorkers and of the basis for that was that there was a letter sent out to about fifty five hundred people nationally two hundred of them from new york and it said that repair was not an option on the recall program in the context of the letter it was clear to us we thought that that meant just what it said it was not and some of the program the court we thought that that would affect only two hundred the court had subsequently determined that even people who got word of mouth of that communication would have a right to participate and that's what jumped the number from two hundred to two thousand but we didn't make any representation that that was the only group of people that could be affected point of the new york case was that it was a very limited group of people people had to file individualized proofs applying they had to swear under oath that they had relied specifically and but for the representations they would have not purchased another dishwasher and as a result only about ten percent of those people that were eligible even participated as compared to this class where one hundred percent of the ninety thousand people not only didn't have to f cases most of them were dismissed we were aware that he invited himself to a deposition although he was never a counsel of record and we objected to this protest a patient in that deposition we went on record in the deposition participate his conversations related what were once they will telephone call where he called and said i understand that you're not going to pay me and the answer was that's absolutely correct we did not know we were very clear about that we didn't know who was going to come out of the woodwork and asked to participate in terms of the current species we were not just thinking about this reinsurance for we was thinking about all the other lawyers who filed these these lawsuits none of them deserved any compensation and had contributed anything toward the doesn't give a standing and i think you can't read it that way nonetheless judge patel should have determined whether there was federal jurisdiction found that there was none and no colorable basis dismissed the ca period just like in macaulay which had gone away far distance before it was found that there was no federal jurisdiction and just remember here mr donaldson's case was brought solely as a federal case there's no place to rema advance that claim on behalf of the consumers who are members of the putative class case was filed a motion for class for vacation was filed and we did everything we could to advance the ball on behalf of the consumers the fact that we don't have a notice of appearance on record should not under ten twenty one point five to the strength of fear ward i want to when i was growing up in trying for have to decide what i wanted to be i remember watching freemason religiously impregnation was rather unique in that there was always somebody who stood up in that one hour program who admitted to guilt i did not expect g e in their briefs or before just to tell we even today to admit that our firm or our law