to be before you today representing the plaintiffs in these cases but i'm here really not only on behalf of the plaintiffs but on behalf of the florida supreme court the district judge threw out all these cases on summary judgment because the district forty two thousand and six that told the statue of limitations for absent class members neither those decisions use the word told that is true but in two thousand and sixteen the florida supreme court in a case called  half dozen or more of those cases in our brief against two florida supreme court holdings and a half dozen or more intermediate court holdings and now so it's one thing to have a court later label something but we look at those two cases are much much different you know the differences better than i do it does seem to me that all there facts are not applicable to what's occurring here mean it could be extended to what's happening here but their class actions preceded the reserve occasions and at some point suit before the ingle class action was decertified in the florida intermediate court of appeals says we assume the filing of the ingle class action complaint told the running of the statue limitations as to all potential members of the class including ms gaff then the court goes on to say the limitations period began to run again when mr gaff filed a statement opting out of the class and because the period started running again on the opt out this lawsuit in this case was on time so the lower courts have extended it to opt out not just the certification but more importantly i think in mind from my perspective of the thirty five jurisdictions in this country that  tolling zero have made a distinction between classes that are decertified in classes that are never certified and the reason is this class action tolling won't work if you make that distinction because at the time absent class members have to make a decision about whether or not to file a protective lawsuit they don't know what the future holds for the putative class section they don't know if it's going to be rejected certification or it's going to grant certification a decertified they have no idea that's in the future so to protect themselves they'd have to f protective lawsuit every single time if you made that distinction that's why no jurisdiction makes that distinction and that's why it would be i think illogical to think that florida would make that distinction and in light of caffe which is something that federal courts should defer to if there's no florida supreme court holding directly on point we think the case even stronger there are facts do fit with florida's doctrove equable tolling but more importantly perhaps in all that is and i do not think a statute from one thousand nine hundred and seventy four can trump two florida supreme court holding since then and a slew of florida appellate courts since then moreover the statute can be reconciled with all of these cases and the way the statute can be reconciled with all these cases is by this doctrine of equitable told the florida courts have understood equitable tolling to exist outside of statutory tolling for decades and i would just draw your attention to one of the primary cases that persian relies on to understand why equitable tolling and statutory tolling are two different animals in florida one of the cases they rely on is called more sonic major league baseball being more so on it's a case about equitable stop but there's dicta in there that they rely on about tolling in the exclusivity of the florida statu limitations number one a cruel wind is the cause of action a crew number two tolling number three equitable tolling number four way for they see tolling an equitable tolling as two different florida said we don't believe mature listen equitable tolling we're going to limit it to the administrative proceedings only we don't think there's a general doctrine but it was only one case i asked my research assistant before i came here today to look at all florida holding in those cases well there's several problems with that number one they can see to page thirty three of their brief the florida has no saving statute they used to have going to one thousand nine hundred and eighty then they repealed so it doesn't help them get around florida statutory law by saying it states they have no savings stashed in florida they don't allow clause of actually be revived once they've expired number two unlike us with the ciccone case it doesn't sixteen they don't have a florida supreme court case later calling what they did say we have that they don't rd they don't have a theory of equitable savings that distinguishes equitable savings from statutory savings we do we have the supreme court in more sawney saying th so for all these reasons i think what the district judge did here was wrong florida supreme court gets the final say in what florida law means and they've said it twice that it means equitable tolling for class actions and i think that's all you need to know the order to reverse the district court we have a lot of other arguments in the brief some about erie if you don't like florida law there's always federal law we have some other tolling arguments as well based on a stay the district court might do you have a case that would apply american pipe tooling to a state statute of limitations so in the me give you my promise so i know the supreme court has applied it three times obviously there's american pipe which is the clayton and so there's a circuit split on whether american pipe or state law governs tolling of state statutes of limitations the one circuit that is on our side is the th circuit and we cite that case in our brief and i have it here i can grab it but it's basically a three or four dollars to one dollar split on whether federal law of american pipe governs tolling of class actions that are based on on state law and state statutes limitations in what would be the theory that federal law would toll state statu you can stop the statue of limitations pending on whether you serve it somewhere at their home or or in person the supreme court so we follow federal law on that not state law that states specializations it happens all the time but the theory is this the theory of the united states supreme court in a bird bird says there are three factors that we have to do for the area analysis when it's federal common law versus state law the three factors are what's the state interest what's the federal interest and is outcome determinative and what byrd said was when you have very little state interest and you have strong federal interest you apply federal law even when you could be outcome determinative and that's the reasoning of the eight circuit that applied american pipe over state law there and frankly this court  long trumps over american pipe but the analysis perfect she says what's texas interest in it's rule what's the federal interest in american pie very high because we don't want people falling always the necessary protective lawsuits and then how  is so she does all three factors perfectly the only difference me our case in that case is florida has no interest in an anti class action tolling rule because no new floor is ever said one word against class action tolling all the courts are on our side they can't find a single legislator in forty years that has ever said anything bad about class action told so there's a zero state interest under the bird analysis and if you have a balancing test and one side is zero it's very hard for state law to win under that test and so that's why we think even if you want to say that florida law does not recognize class action tolling we think you end up in a position where you have to apply federal law under those circumstances and the case that leads the way is if the circuits case and bought court heard what i just think is a remarkable statement in my colleague's argument all there is is a statue on my side we probably all heard that sort of it's startling but he's got some arguments that follow understood but i want to start there all there is a statute and the statute is clear on its face the statute says that the list of totally events is exclusive and the argument that there's a distinction between statutory tolling and equitable tolly is just plain wrong under florida law they also say a starting point is not a new category like whatever that is ten or eleven somewhat related nature is trying to move it into an entirely new equity and not straightforward application of whatever the law might be an equity is an exception the preaching case that you're probably sitting here for as a somewhat similar issue  a statute of limitations on not exactly the same as what we're dealing with here by any means so what about these cases that he that he most cited his brief and talked about here today the concept of tweeting treating equitable tolling as just a different category altogether your honor if you look at the cases they cited the vast majority of them six or seven of them are what they call engle progeny cases that follow from angle in all the world those cases do it in the background section of the case is recite what happened in a court that there was an interruption of the studs and limitations in a go cases that then go on to have nothing to do with statute of limitations they apply other issues that arise out of the engle progeny cases so the vast majority of the cases i cite don't even address this issue at all that leaves gaffe gaff is a case that a suit in its own language assumes that florida would apply american pipe tolling and then said on the facts of this case it's irrelevant because even with american pipe tolling these claims are still late the kick the gas case very carefully did not hold it assumed in that said with even with that assumption the plaintiffs fail the other cases they cite there's a case called allotment which is a case that involved tolling of a contractual limitations period which obviously didn't trigger anything to do with statute now the cases that we cite the h c a helmet case is directly on point i case dealt with a claim for equitable tolling of a statute of limitations because in that case the plaintiff it filed the case in federal court thinking there was diversity and says which of the case pending in federal court for some time it was later dismissed for lack of diversity was refiled in state court and the and the pledge of said equitable total equitable tolling not statutory tolling and the court said you don't get totally because under the statute there is no such thing as equitable tolling so if you look at the universe of the cases they cite angle and lance don't even talk about the what's left of the statute of limitations they simply impose what we call in our brief a savings period you can also call it a grace period but they're not tied to the statue of limitations and lance  and the plaintiffs actually appellants actually give us the answer on page twenty one of their brief where they make the point that engle and lance are very different cases because it's not just that they were dick decertified after sort of occasion but those cases in both situations were tried to verdict so it classes certified people who are in the class they obviously make a decision not to opt out because they've got a certified class and they don't want to pursue their own case the cases are tried to verdict and in fact an ego that they even though it's decertified for phase three once you get to appeal and if those people are going to get to still rely in any subsequent case they file on on the findings from phase one phase two so ingle is a completely extraordinary circumstance but again divorced from the from traditional tolling principles because they don't tol briefing in the district court doesn't mention lance and he goes for a very good reason nobody thinks nobody thought that lance and ingle are american pipe class action totally cases and they are not we cite a number of federal cases that go our way on this and in fact there's a second circuit has addressed this in the in the back nell case and they said this is so clear to the florida statute we don't need to certify th th supreme court for a decision it's clear the statute is clear and whatever lance and engle do they are not the american pipe class action tolling cases they're simply not now with respect to court of florida guess what number of cases would we be over ruling party the wrong word when we'd be inconsistent with no none your honor the again the you've made all these think gaff is the closest you would you would even even get to any kind of inconsistency but again that's that's not a holding not to beat to be completely candid with the court looking for there isn't there isn't a federal case that you would even arguably getting nearly any inconsistency is is gaffe the others that they say they go their way are not statutory cases and not statutes of limitations march of this is an administrative case public schools case as going their way on the erie question it doesn't end in adam's public school while that case was pending the state legislature passed a revive a statute that said you know what we're going to revive statu differences between texas and florida law because they like to say that vought relied on the amarillo court of appeals case in bell and said texas has a strong interest because there was this incredibly in depth analysis in the bell case from amarillo there's not the bell case in amarillo has a one sentence discussion of the american pipe issue very good sentence it is a good sentence but what that what vaught ends up saying is the reason we're going open this is a state by state or even limitation by limitation consideration when you look at the interest of the state in that particular thing so it's not a it's not thought isn't a holding that requires us to rule in your faith and requires us to go through the analysis of all absolutely agree that what god says and what byrd says what part of the you know also says to balance the federal interest against the state interest and i can see that it is theoretically possible that a state could have different interests from another state on this point but what thought identified as the the critical state interest is whether or not tolling is into a gold to the statutory the statute of limitations skeet court involved found that it was in texas and you cannot possibly find that it's not in florida it's even a stronger argument in florida because in florida the rule that says you can't have tolling here is not a judge made rule out of  case law it's from the face of the statute which says that you can have no tolling except for the nine reasons that are listed instantiate and it's important to note that one of the reasons that are listed in the statute for no towing is the pendency of an arbitration case while another tracy case that relates to the same subject matter is pending statue of limitations is suspended or told under the statute which means that the legislature knew that tendency of other cases in other places was a potential tolling device or told the reason and they specifically the legislature in their wisdom said by negative  lack of inclusion that american pipe class action totally is not a grounds for toppling i'd like to make one other point but that would actually allow the court  to avoid this quandary all to go other i actually don't think it's a quandary i think the statutes clear but this whole issue only becomes relevant if you accept the notion that the cause of action here did not a probably didn't help them in any of that is that the statue of limitations actually be good to return in february of two thousand and nine and under that scenario they lose anyway and the reason that we argued that and i think this court could easily find because it's supported by the record that limitations began to run in february of two thousand and nine is because and i know this court has been inundated with stanford ponzi scheme cases before so i'm telling you nothing you don't already know in america after the made off case and everybody knew that each of these investors knew about it because their funds were immediately frozen and we put in the summary judgment record reams of publicity that existed in february of two thousand and n now and we say that started the limitations period and again if we're right this american pipe tolling doesn't doesn't help them in response to that in the district court they did not dispute the public knowledge of the exposure of the ponzi scheme they did not dispute their knowledge that this had happened their only argument was that well we didn't know if the regime is involved we knew there was a ponzi scheme we knew we'd lost our money we knew our investments were frozen we knew there was a fraud but we did know or the wrong do or you have to know simply that you were wrong and the circumstances suggest that some rd party may have done you harm and clearly they knew that we've side of the cases in our brief that say specifically you do not need to know the identity of the wrong actual volved which that they then sort of run with and say that's what creates the liability of a person's involvement is on the face of yes he sees complaint one and number two their argument on the merits here is that purging is liable to them because purging vouched for these certificates of deposit so on the merits part of their argument they say you know we bought these things because person was involved on the statue of limitations they say when it was exposed in february of two thousand and nine we don't know anything about a person that obviously that can't work and so one way to easily resolve this case that is consistent with the record is to hold on the point that it minutely judge god did not reach that the cause of action here accrued in february of two thousand and nine in which case all of this goes away the other point quickly i'd like to make is that as the court knows there are five or six appeals that were consolidated here  the weatherly case the main case of the complaint was filed in in two thousand and thirteen so it has its own sort of timing issue the other cases weren't filed until january and february of two thousand and fifteen so even if you were to adopt their view of class action tolling and save weatherley you still have to look at the other cases and the only way those other cases it saved is if you give american pipe tolling for the period that they they claim and then head another seven months and fourteen days of tolling based on judge god bees stay of the turk action while the rolling vs garcia case was pending in this court which had to do with whether  the turke action while the sluice appeal was pending in this court he did not want or nor nor not sure how he could have ordered that no plaintiff who has yet to file a lawsuit can follow a lawsuit there was no such  any class action tolling there is an issue i guess it's an issue they try to raise in their breeze on how long that tolling period is in the district court they on equivocally took the position that any class action tolling here started on that november th of two thousand and nine and ended on june th of two thousand and ten when the class definition torah case was narrowed to exclude them there are helpfully produce a chart for the district court that lists the various time periods in the chart unequivocally says june twenty five two thousand and ten american pipe tolling ceases and they and they they want it in the description of their charts eight ceases because the definition had been narrowed to exclude that they now want to argue something completely different in this court and say that actually tolling extended beyond that they can't do that number one and number two they're just wrong on the on the facts for the reasons we set forth in our brief in june of two thousand and ten and the class action definition was in fact narrowed to exclude them judge god be so found that gobby obviously he's presiding over both the weather the case and the tour case when he ultimately did not class certification in turkey this year he made it very clear that the class definition and turk have been changed to exclude these i don't want to spend my few minutes here to debate questions the district court did not even reach many these questions are fact bound i assume this court is not going to delve into them on appeal i would like to respond insurance which is why we cited that case and not the atoms case number two i didn't mean to imply any derogation of statutory law in my previous comments i was a law clerk to just very near and dear to my heart in a vacuum i agree the statute is quite clear and maybe if i won the florida supreme court i would have rejected this decades of equitable tolling that they have recognized outside the statute but i'm not on the floor supreme court and the job here is to respect what the florida supreme court does they're not required to be textualists as much as i am sympathetic to that view that's no one says every judge has to be a textualist their entitle to their own view not only my good was but i'm a good federalist and being a federalist means respecting state supreme courts when they say things about florida state law what would be inconsistent with florida law if this court were to help hold there's no equitable tolling in florida i'll tell you what being consistent number one there's a florida supreme court's decision in metro us which says we recognize equitable tolling they say it's just about administrative proceedings that's not how that opinion reads the opinion says we're going to extend where the florida supreme court has said as applied to the statute of limitations we've talked sume and is a great case for you but is there another one beyond ingle where it's where they apply equable tolling to a state statute as opposed to  statute correct and i know a bunch of those are cases is it fair to call gaffe an angle case that isn't ingle case except it wasn't a plaintiff that was decertified it was a plaintiff opted out just like we did before the certification decision but twenty three dollars cases will pop up where they're merely applying sometimes they say the facts don't support a total but they don't seem to get the impression that there is no equitable totally they all seem to be under the impression just like the practitioners from the florida bar journal equitable tolling is alive and well in florida again it's not the most texas way to do things but they're not required to do it that way i've got ten seconds left so i'll probably just rest on that thank you very much thanks for your both