it please the court my name is mark griffin and i represent nurses keith ivey and elizabeth mason in this appeal of the district court's denial of their motions to intervene in this appeal is about the end i trust claims of thousands of memphis area nurses whose were injured by defendant's agreement suppress their wages the only possible way for these nurses to have their day in court is for this court to allow the nurse i v and mason to intervene in order to challenge the district course denial of the motion for class or if occasion i v and ma september two thousand and thirteen motions to intervene were timely because they couldn't have known before that time that the remaining plaintiff wouldn't appeal the class or to cation denial nurse dillard to appeal that denial if they aren't allowed to do that their claims and the claims of all the thousands of memphis area nurses will be extinguished this is important because even the limited discovery had so far in the case shows that the claims are meritorious although discovery was bifurcated and limited to classification issues documents were produced confirming that defendants had in fact been exchanging nurse wage information detailed nurse wage and compensation data with each other including future compensation information exchanges of future wage information are considered highly anti competitive and courts in other and i trust nurse wage litigation have relied on similar evidence to deny motions for factors yes the district court did consider the triax factors but the triax factors in the macdonald factors are not inconsistent factors they are their means of analyzing whether the motion to intervene was timely and it is the plainest position that the court erred in not following the one nine hundred seventy seven decision in united airlines versus mcdonald it's an opinion written by justice potter stewart and in that opinion the supreme court established that when absent class members like nurse ivy and mason in this case intervene to appeal an earlier the intervention is timely if filed shortly after the class members should realize that the name plaintiff will not appeal the denial of class or to the cation in united airlines versus mcdonald the supreme court how that the intervening plaintiffs had no reason to suppose that the name plaintiffs would not appeal and it referred to the fact that the name plaintiffs had attempted  of the class denial the district court cited the lack of such an attempted interlocutory appeal in this case as a reason to distinguish and find in a political the mcdonald holding have they could have your honor however there is no reason for them to have done so because all of the record evidence about nurses dillard's intention to appeal the class or difficult denial indicated that that was her goal all along to appeal appeal that and the american pipe and other supreme court cases explain that the class action device exists to encourage efficiency of class litigation and to avoid the necessity of having absent class members intervene in a pending class action end up settling or just abandon the case you know well your honor i don't know but i am prevented from answering your question unless the court orders me to answer it's not the record you know t but was the main reason that the district court did not follow the district court followed a previous ruling in this court in a prior attempt  nurse named anna better to intervene in this same case and that attempt was appeal was denied that motion to intervene was denied and it was appealed to this court and the court ruled that ms best shelters attempts to intervene was untimely applying the tri x factors the district court when when faced with the i v and mason motions to intervene relied on the batch l t ruling of this court however the interests involved in the batch shelter appeal and the if the humor is to be preserved in any why it has to be through the intervention of a new party that's correct because all of the the that was not the situation at the time of the other exactly your honor exactly in the in the batchelor situation she wanted to litigate alongside the existing class or representative name plaintiffs in the case she wanted to litigate with them here those parties have been dismissed and so hurt she is trying to step into the shoes of ms dillard in order to appeal the class certification denial without the ability to do that all the claims of i v and mason and the claims of the thousands of memphis area nurses will be extinguished i want to ask you about about two things that relate to this case in considering it i started well i was puzzled as to exactly what we might say to the district corps clearly it seems fairly clearly seems to me mcdonald apply in ways that the district court didn't recognize on the other hand there obviously also post me is some rule for the continued exercise of discretion and so i was  i was concerned about what we might say to the district court that would not be conceived thing with regard to its discretionary its remaining discretionary obligations you're only you know half should we go forward in this case i mean if we disagree with the district court we've got it some plaintiffs the intervening climb to the now of class certification before the court for a briefing and that included it in their notice of court yes the plaintiffs did the interveners attempted to appeal and filed a notice of appeal of the class certification to niall this court has dismissed that claim on a motion and so because the ib and mason are not technically parties yet in the case if this court were to grant the rule on this appeal that i mason should be allowed to intervene in this point it is our belief that this court can then exercise jurisdiction over that notice of appeal that was initially filed we have to  you know essentially you know we had to do something with that earlier orders out because they are you going to get i mean we're going to have to act on the existing right well i think once the court rules that i be in mason our parties and can intervene then i think the court will have the jurisdiction they can vacate the prior order  revives the feel of the other one that seems i think i think that it is it is puzzling this is not a normal practice when we reverse this to send it back and let it move from the point where where the court went that that is that is certainly an option for this court if we took that option i don't know what my colleagues would prefer that we took that option what exactly would the district court then have the choice of what would be the i'm curious to know what the something we take the normal what to me seems like the normal course which is the reverse and send it back and do what's in the system in our opinion if we agree with you which i'm not sure we do but if we do agree with you that it should be reversed th the district court would have to act knowing that that one option that it took before was off the table and as for me whatever remaining options might remain logically how we are yes that is logically how it works however i think that the entire issue of intervention and all the different aspects of that decision were before the district court and that if we agree with you it ruled wrongly on one of them and has ruled on the others well i think that that th  court there are cases that say that this court can't decide as as a threshold matter the intervention issue initially we the procedure in this case is that we appealed up lies but that it hurts on that and went why can't we just send it back and let the district court do whatever else appropriate with the with the one thing that they did before being taken off the table well the reason that intervention is the only that if if whether we read man to the district court for let's assume there's you're a man whether it's simply for interest of an order granting intervention  because this case is so close to me there's not really anything left of the discretionary factors or whether it's for a further descriptive disk consideration of the time of this issue in view of the correct interpretation of mcdonald and other tablets issues left for consideration what the district court is going in or think is an order on the motioned intervention it's not going to enter another fan of judgment in the cat and only why your client can proceed is under the original notice of appeal and waived dismiss that well your honor the instructions that you could give the district court might include things like the court distinguish mcdonald based on this lack of of an attempt our briefing shows that the six the seventh circuit has addressed that issue expressly this court could give the court guidance that that is not a a reason to distinguish and not to apply mcdonald  plaintiffs in the case there's another six seven circuit case that rules on that issue and disposes of that saying that that is and then we have to reach out to decide some other issues other than the proper interpretation of mcdonnell well i think i think that part of what the district court did was that was as a threshold matter decided well mcdonald's to be different than the facts of this case so i'm not going to apply it and then looked at the triax factors i think what this court could do is say no mcdonald is is close enough to the facts of this case here's why and explain these t good morning your honor may please the court my name is brian marie and i represent the defendants appleby's the hospitals your honors i think the beginning of the end of this appeal is simple in their reply brief on page six plan of said and i think we agree this case largely boils down to one defining idea masons relevant interest and to determining when they should have realized that the name plaintiffs were not adequately protecting it and with respect i believe what my friends are trying to do is to cap in their interest into this narrow window of we have an interest in taking an appeal but that's not what rule twenty four speaks of in terms of intervention the interest that allows intervention in the first place is an interest in the underlying claims and that being an interest relating to the property or transaction that is the subject of the action and rule twenty four goes on to say that you have intervention of right when those claims are at issue and they may affect your ability to advance those claims unless existing parties already adequately represent that interest and since we heard today i think clarification from the plaintiff's counsel that their concern is that their claims will be extinguished that's really their interest in this case is the claims not some narrow window of they want to take an appeal there is no separate right we believe separate interest in taking letting them a litigator underlying any trust claims then judge mays did not abuse his discretion in applying the tracks factors as to when they knew or should have known that their ability to litigate those claims was in question specifically you know judge mays looked at of the tracks factors and said there would be prejudice here the suit has moved on the individual name plaintiffs have all gotten rid of their claims the defendants reasonably believed that there was nothing left of this case and when you know the class certification was entered the denial in two thousand and nine there was no appeal of that and instead plaintiff's lawyers the same lawyers here took the tack of trying an intervention of a new class representative and that was denied anywhere in there warning bells should have been going off in the heads of ivy and mason that their interests were no longer being pretty  original batchelder appealed this court very carefully squared mcdonald with the try x factor's what macdonald was about was when someone seeking to intervene knew or should have known that their interest in the underlying claims were no longer adequately being represented by the pla was what she actually knew whereas here judge mays we believe didn't abuse his discretion in what i viewed mason knew or should have known secondly mcdonald i think is easily distinguished because mcdonnell was a case about numerosity the way i think about it is this you had a name plaintiffs in the mcdonnell case who litigated class certification and then the merits all the way through to the end the only reason for denying class certification in mcdonald was that there weren't numerous enough  plaintiffs those plaintiffs the name players were as good as anyone else to continue to advance that argument all the way to final judgment that's because whether there was an intervention by mcdonald at that point or whether the nameplates continued forward either of those people had an equal ability to advance that argument all the way to final judgment it was only when final judgment came and the name plaintiffs decided not to appeal that mcdonald knew or should have known that her interests in the underlying claims were no longer protected that what they say happened here they they say that but the problem is here the district courts denial of class certification was not numerosity it was adequacy and that's what makes this different from mcdonald at that point the people in the arena the the original plaintiffs clerk and and  appeal have a different point of view i think not only because it's you don't have to wait until it's absolutely clear that your interests are being protected and again this comes right out of this court's prior batchelder decision all that you need to know is that there is a six once that admission is done and filed court documents that say you know we have a real in fact they did it's in the batchelor opinion that these plaintiffs there were concerns from the very beginning of the case that these men named plaintiffs might not be adequate at that mason you're no longer justified in sitting on the sidelines and hoping that they will vindicate your claims one day these people are no longer as well situated as you think you are as an adequate class representative to push these claims forward you have to get in there and make sure that you are protecting i think these two representatives are representative and are valid class name class members whereas the plaintiffs in that cellar didn't think they were like two different theories of how the case should go forward adequate and if you think that they're not adequate the need to get it if you think that they are not adequate at that point you have an intervention as of right under rule twenty four to protect your claims right adequacy is not so they can technically  asking for i think it's an intervention to defend the honor of clarke and dillard that's very different than numerosity they're not here picking up something that they were equally well situated to litigate as the name plaintiff they're now trying to get in and do something they should have done earlier which is to give this application of donald would be on time and certainly ben childer was much earlier than these planets and was still and i'm lazy absolutely i think as long as your owners get to the point where the relevant interest here is not some free floating interest in taking an appeal but the relevant interest is in litigating the underlying claims forward to judgment i think this case sets up just like batchelder if batchelder untimely than these folks are also untimely because they should have known based on what went on in the district court that their claims were at risk vehicle for possibly being timely they way they string their legal position clearly that way you know and we don't think so only because mcdonald is not about just the right to take an appeal mcdonald is about the right to litigate your underlying claims it was only in mcdonald when the final judgment was entered that they knew that no one would take on numerosity further and that they were equally well situated as the name plaintiffs to take on numerosity here the question is when did these people know or should have known that the issue of the adequacy of these plaintiffs in other words that these plaintiffs were no longer representing an entire class in pushing their idea masons and other people's claims forward when should they knew or should have known that these people were no longer adequate and i think judge may certainly didn't intervening to take over and try to be a new class plaintiff and move the claims forward and she's untimely and why are i b m mason in trying to intervene at this very late date relying on this narrow interest in taking advantage of an appeal when what we really know that they want to do is push their claims forward they are just the same is batchelder right there they're limited because the only arguments they can make down the road and i'm not sure how the road twists from the only one the only arguments as i understand it that they can make and even want to ask counsel on basket that's how they think they can win is by winning that appeal that's that's not the same as that is the it's a different way of approaching the case but it's a limited one but i don't see why they don't get the make and i think the answer is if they're challenging the adequacy of these individual plaintiffs now as judge mays found they should have known about the adequacy of these individual plaintiffs or at least have real reason to concern that they were no longer being protected as far court the only order before your honor's is the order on intervention and i agree with what i think i heard which is if for some reason you find the judge made abused his discretion in denying intervention the result would be a remained on whether intervention was proper u the hurdle i'm allowing intervention then well i don't know that they have a basis to do anything else that that's the real problem is what are they pushing forward there is not i mean you've got a class certain aisle they timely appealed while they appeal that they have to get somebody else to represent representatives is that they might have been at some point but they're no longer here there is no one to represent the class and that's the point what they were trying to do don't exactly present it in the read and it seem like it's a pretty important question the district court concluded the name plaintiffs were inadequate class representatives and since they have since resolved their personal claims and as such cannot represent the class even if we were to overturn the district court's determination there's no no really for us to afford  will to pursue their underlying law and that's exactly what judge may said when he said you know as a district court the purpose of intervention is not to allow counsel to present new arguments attached to different litigates faces until one succeeds i mean imagine if you were to die intervention of these people here the plants could continue to intervene more and more nameplates until they finally found one that stock is adequate i mean this would be a never ending loop until there was either a settlement would have to be a settlement there's no way out of it bottom line here your honor is when walking through the tracks factors as anticipated against macdonald as this court already held in batchelder judge mays did not abuse his discretion in finding that these people live in mesa knew or should have known that their interests were no longer adequately protected long before they attempted intervention here this thirteen hour intervention was too late and he did not abuse his discretion in so finding we would ask that his order  honor i ask the court to look carefully at macdonald it expressly addresses this these different issues that that we've been discussing and that judge rogers through his questioning seems to understand the the the interests of ivy and mason is not to litigate alongside the the prior named point of but rather to step into their shoes and to appeal the denial of class certification mcdonnell teaches that an absent class member has that right and it's simple and it's an important right as i tried to explain forward from that i now i mean they've already thought oh well this court what what what we would ask is that i've been mason be allowed to intervene in order to appeal to the district courts prior denial of class certification co right now i understand that the issue though is is not the the facts as they currently exist but but at the time that the court made the adequacy determination he ruled on certain then then this court needs to reverse the denial of class certification remand the case to the district court in order to look at those two people and by now they clearly are not adequate and well but but given given that set of exactly you know i don't think so i mean i think they can i think they can raise the issue that the district court the basis on which the district court not i class certification and the district court was quite probably correct on that and it is it wasn't correct it's probably moot now and so i don't think you get your client any player well i guess i disagree or honor the if you if you if you read mcdonald carefully what happened there is that there was a settlement of the all of the party is in the district court action and the absent class members moved to intervene and that appeal went through the court and the district court reversed the denial of of class certification and it would have had to dismiss their claims that would be you know you can see how it would be easy to re but without a class representative your honor i don't i don't know i just don't know because you know adequacy is an individual thing well the in order to certify a class the rule twenty three factors have to stablished one of which is adequacy and you have to have a class representative to represent the class who is adequate and necessarily one