their argument this afternoon in case sixty three seventy three the california public employees retirement system versus securities mr chief justice and may please the court we ask you to hold that american applies to both of the time limits set forth in section thirteen of the securities act which is reproduced in a number of places including the blue brief at the top of page three the other side has a tendency to invoke the phrase statute  repose which isn't really self defining in the phrase in no event when there is more going on in the statute in that so i thought i would just start with the taxed and it begins no action and actions going to be the important noun here no action shall be maintained to enforce any liability created under section eleven unless brought and that's going to be the operative thing that has to happen within one year after the discovery of the untrue statement or the omission or after such discovery should have been made by the exercise of reasonable diligence the three year period will follow in the next sentence but we can pause here for just a second because it teaches a lot we know that american pipe tolling applies to this sentence and therefore we know a few things in this conceited and everyone agrees the action is brought on if you're just a little or as for me i apologize yes we know american american pipe applies to this sentence that is if you do not if you file your action within one year and class certification is denied say your two so we haven't gotten to three years yet if class certification is denied two years afterwards then american pipe tolling applies and a class member can opt out i apologize for moving through that so quickly and so what we know from that i think is as american pipe tells us that the class action complaint commences the action on behalf of each unnamed class member and in the wording of section thirteen it brings the action on behalf of every unnamed class member so the class complaint in our case which was filed within the year brought the action on our behalf now the second sentence says and it's the one that issue in the case before you in no eventual any such action referring to the one in the previous sentence be brought to enforce a liability you created under section eleven more than three years after the security was bonafide i offered to the public and so what happens we believe is that just as the action was brought by the class action complaint within one year it was also brought within necessarily three years it was brought and it was brought on our behalf and we don't think that there's anything in this sense that is concerned with the application of something like american pipe tolling which is an interpretation of rule twenty three if it doesn't apply here we think then rule twenty three doesn't work and it's going to generate all manner of satellite litigation over what is a statute a riposte and what isn't and it will all be entirely pointless as we underestimate that you're making is the one that you describe i think or am i am i correct it's the one you say on page thirty eight of you the easiest way to decide this case no sir this is the straightforward are statute of repose argument this is why i don't need to compute the argument relating to this that's it for us it has nothing to do with whether the class action was still pending at the time which is the debate over what the scope of the second question presented is this is the argument that was presented straightforwardly in indy mac and it is simply the fact that under the text of section thirteen the class action complaint brought the action on our behalf and the point that i was making is that as i understand the other side's rule it amounts to amount a huge amount of just pointless paperwork because this is the other side understands how the statute should operate and that is when the class action complaint is fine then what should happen is every class member ought to move to intervene in the action or file their own individual complaint then to presage the possibility that hypothetically some day later they might opt out and litigate on their behalf not necessarily that they will but that they might and the entire point of american pipe in interpreting rule twenty three is to stop that from happening  circuit it has happened in the second circuit i will so there is the petro bross case is the best example it was anticipated by an american pipe the other side does point to statistics and i have continued to look into that the reason that the number of opt out cases is relatively small in comparison to the body of securities litigation in the second circuit is twofold the first is there are very few recent section eleven cases because sexual eleven cases are only filed in declining markets if the market is increasing and the price of securities is going up then there's no point in bringing section eleven litigation at all because it's divined by the euro you only get damages if the price goes down and the second is when the second circuit and now it's this rule in the indian that case this court immediately granted review and so there is an amicus brief by securities and civil procedure percent professors who explain why it is that you haven't seen a ton of this yet but if you announce a rule that tells lawyers like me you will only protect your client's interests if there is you are there's a class action lawsuit under something that is a statute or a poser looks like it you only protect your client's interests if you file your own lawsuit or you move to intervene we will do just that it is is it you said you only can bring bring a suit if the if the market price price goes down you can always actually buy them out as everybody else the stock in your sector is going up fifty percent and your stock goes up five percent and you think because it's as of a nondisclosure you can't bring an action no sir the the floor of the price has to go down in order for you to be able to recover section eleven damages section damages under section eleven and that is there are a variety of protections for defendants but if the price hasn't gone down then you are not going to get damages under the statute and that's why there's almost in recent years there has been very less attractive no matter or is a formal matter i believe is a formal matter and that causes people as a it is the case that the purpose of a statute to repose we quite agree is so that the default of the possible asserted liability is filed within the period in question and so that would be true under arrive new provisions of the securities laws under a lot of things what american pipe holds is that the class action complaint does do that so it's very important i think that my friend doesn't say that they were in anywhere unaware that we have this claim against them what they want us to do this paperwork of entirely unnecessary that's clearly an argument in your favor practically but i think the site is said that that second sentence is what's called the statute of repose whatever historically was the case in c t s we made a big distinction and said in such statute you cannot i told him it's true and here we're not talking about the action you may be right that  when you file a class action if it's certified that is the action brought within the time but here there's a second action your client leaves the first action and what does he do after three years i guess he puts a piece of paper called a complaint in a court and that would seem to be bringing an action and if the other side says i'm just reminding you of these arguments because you seem to think they haven't made arguments they have made arguments  you think they have now look they say this is not this is a strict liability statute underwriters after all have committed no sin they haven't the bright mental state they've done nothing wrong that separate later action there might not just be a repetition one two three of what's in the class action but three new things for more sentences maybe twenty two years later  what are you please some for point i would like you to deal with those actually right so those are right so that the question is is this a separate and distinct action within the meaning of section thirteen and what american pipe teaches is that it is not is what american pipe says and remember in american p have the exact same structure you have a time limit of one year and then says if it's opera then brought within four years it shall be forever barred the parallel is we think precise and this is not a new action in any sense of the word just as part if the plaintiff in the subsequent individual last year brings a new allegation about other securities changes the nature of the lawsuit in any way but all we have done is opt out and asserted pursue not just asks to amend the complaint which is now been filed ten years later after he left opted out a month before and in that amendment he says this was a thousand pages the offering and on page four hundred sixty three there are five new sentences which have false facts we want to put them into you're not allowed to do that under our rule or there so it has to be precisely the same size just to return to how they understand the world will operate and that is according to my friend what will happen is on day one as they understand the statute a party like ours will move to intervene in the class action will file a piece of paper saying we are seeking either intervention as a matter of right or permissive intervention then nothing will happen and then four years down the road of classification is denied case will start up again the only difference between our rule it has no practical consequence except for the fact that they add additional litigation for district courts to deal with on the front end all the same amendments can happen mr g when i see the word action i think of lawsuit traditionally and claim as the claims within the lawsuit and the walls often distinguish between actions and claims of securities laws do or routinely here why why should we follow the plain language in the traditional understanding of the term action congress could have used claims which is what you're saying it's the same claims as justice prior points out but it's a different action well can i just say first i think we would win even if it was a lawsuit because the lawsuit that matters what american pipe teaches us in terms of putting the other side on notice of the lawsuit is the class complaint but if you were to disagree with that you were to say look if you're going to say it if we hold that it's a lawsuit you're going to lose so it better not be a lawsuit the reason here is that what congress was concerned about was the assertion of liability and i'm high could just give you a couple of examples of why i think i have to be right imagine that in the year for a new plaintiff moves to intervene in an existing lawsuit ok the lawsuit is on file i don't think the other side would be willing to say hey you know there's no new action here you're free to do it or alternatively imagine an orderly ordinary bilateral litigation i and my friend sue lea probably shouldn't do this but sue lehman brothers under section eleven ok we have a dual complaint and years into it the district judge says look you're actually suing over different securities i want you to break it up into two different complaints we're going to have two different docket numbers and so the second complaint is filed i don't think we would say it's a new action well because it saying the action may contain exhaustive claims and an exhaustive claims but it doesn't conflate the two well the way i read it and i understand that jones recent bach does use the word in a couple of different ways i think the bottom line is what you would say is that we try and be pragmatic about what it is that congress is attempting to accomplish when it's taught using a phrase like action in the limitations period and so what i think you have to do is realize that you have not only section thirteen but you have what is in the fact another can national and act meant in rule twenty three what you tried to do in american pipe is to reconcile two different things that are going on in the wake of nine hundred thirty three in one thousand thirty four and lots of other statutes as well when we modified and got away from equity rule thirty eight in equity rule thirty and forty eight and created this class action system is we were trying for an administration of the courts to come up with the regime in which we would have only representative litigation and not these individual suits and the other thing i would point you to is you're not just dealing with section thirteen in securities cases in particular and just prior also remember that there will has nothing to do with strict liability true about every statute to repose which are if you can figure out what they are they are all over the place but we have the private securities litigation reform act as well and it teaches i think several important things about class and representative litigation in securities cases number one we want a single representative plaintiff we don't want all of these litigants number two we contemplate that the absent class members will simply notice if they believe that they should be named party we will not have them move to intervene which is what we're trying to avoid and number three and this is really quite curious within ninety days of the filing of the complaint and a new named party can be named main named party and the lead litigant without regard to whether it's after three years the entire body of law involved and so what i'm saying is you have to interpret this word action in the context of all of the law it doesn't make any practical sense to believe that congress would want this kind of meaningless paperwork just these motions to intervene in the teeth of these other regimes that sister i don't see this i understand your adversary and he'll speak for himself when he gets but a motion to intervene and see if you can because according to him it's only a separately filed complaint that would be a separate action and subject to the three year period of opting out now meaning that the court just a nice the class certification what happens to all of the cases in normal parlance the one name plate this continues but how about if there's ten or twenty they would continue in that one case it would be spun off into the room jurisdiction if we had well it depends on exactly how it came to be and there are can be very difficult questions about specific personal jurisdiction depending on where the plaintiff comes from and those sorts of things putting that to the side imagine the following hypothetical complaint it is a nominal class action with ten named plaintiffs if they are in the complaint then those ten people will go on on their own i guess maybe common questions are certified and the original court's jurisdiction you can have this particularly will happen in the context in which a district judge to administer the case in front of her will direct the filing a consolidated complaint but it is empty yelled it's only there for pretrial purposes it's going to have to be spun off into separate complaints at which point i take it given the formalism of the other side's rule all of these actions are now untimely and nobody three yes or no and your and your rule which is somewhat different from arrogant by also come from rule twenty three i believe in simple yes we have to alternative theories one is that our action was always on file and i haven't discussed this is the question of justice alit but america they are both applications of rule twenty three yes my concern is that you're using rule twenty three to create in effect a legal right override the right and it's very clear the rules of civil procedure do not do that that is correct if we were to be violating the rules enabling act of course our interpretation could not stand and so i should talk about that for a moment american pipe confronts a quite similar argument of course where the other side argued and remember american pipe has the parallel structure of the one year period and a four year period saying it shall be forever barred and what this court said in american pipe and all of its rules enabling that precedent is that look obviously there are rules of procedures that have substantive consequences you violate the rule then you have no more right that's not what the rules enabling act is talking about it is not talking about a rule about when or where or how you file your lawsuit which is why the limitations period an equally repose period is concerned with if i could just return to kind of the question of what no event right but sir if i could just take you to the text so because it's very rare that congress just writes in the event and so what it says is you know event something ok no event shall any such action be brought to enforce a liability and then the three year period and shell any such action would do you think the action what is the definition of action in that statute to take your first question which is such action we believe such action is an action that is otherwise subject to the discovery rule in the previous sentence and that makes it make perfect sense what congress is doing here is saying and this is true throughout wherever you have these two tiered statutes of limitation or repose it says i've got this thing in the first sentence that's going to say there's a discovery and but then i'm going to say look there you can only have so much of this of at some point we're going to call a stop and so it says you're going to have an action the subject of the scupper robot innoventions such action one that could otherwise be extended indefinitely remember the first sentence if you leave it alone the discovery  five ten fifteen twenty years so in the event shall such action be brought more than three years after it's offered to the public and what this sentence does is it cuts off the discovery rule but even if you were to disagree with me about that and just say no the phrase any section eleven lawsuit we believe it refers to a claim under section eleven and what american the reason i started with the first and so it's enough that it's the same claim well as in the class action that is it is has to be the entirety of the claim so  just clear you can't just intone section eleven we are talking about the same securities the same misrepresentation with respect to them and that is what i have done when i have opted out is i have taken control over an existing so if if a plaintiff in every single judicial district in the country had brought exactly the same claim those would all be the same action in your opinion no it's on behalf of that person remember it has to be not just the existence of a legal claim in the abstract but what american point does in interpret in this idea we have this new rule twenty three so that we have collectively the geishas it says it brings the action on behalf of the individual unnamed class member so to be key clear if one party brings it you know just an individual lawsuit is brought a claim that doesn't bring the end of the action on behalf of cowper's of course it has to be we have to be a member of the class involved and you think congress had all of this in mind when it wrote  eventually any such action but it thought it was also clear it didn't need to spell it out oh no sir the reason is this class action practice in one nine hundred thirty four was quite different class action practice was a situation in which and representative action would be brought and then people would opt in at the very end this was an unresolved question so what did congress have in mind when it released this what it had in mind was letting the other side know that the claim had been asserted against it and that the class action does what it wanted was a party like n z or lehman to know ok here's the scope of your potential liability and what american pipe says in terms is that the class complaint tells the other side everything it needs to know whether it's litigated on a collective basis or instead on an individual basis and what it says is we are not going to generate all of these unnecessary motions to intervene all of these unnecessary individual lawsuits because we're going to interpret rule twenty three and these federal statutes together and so if i could just give you an illustration from your own docket imagine that you were presented with the supreme hypothetical supreme court rule one hundred and you were the docket management men measure trying to figure out how many circulations were going to be filed and the rule by making us act on this worthless motion nobody would think that that was a sensible thing to do because it would accomplish nothing other than giving you just like this would only give the district court's additional work mr goldstein could i ask you to to speak question of your alternative theories because in your briefing non telling the area if i can call it that took pride of place you haven't really spoken in those terms today so what am i to make of that nothing i just think are the we have two very good arguments the other argument that we make and and i have also just tried to avoid the complication of what's in and out of question to you all will know the answer of what you intended when granting certain more than we will but i think that if you are thinking in terms of tolling then there has to be a gap in time in which there is a distance between when the first action ended and the second action began that is why you would need to toll something to fill in the gap and when you have a case like this one when all we have done is take control of our own action it's very hard to see why we need tolling at all the other thing that's quite important is that here we do have something concrete in law that we are exercising and that is our rule twenty three right to opt out you don't have to wonder about this is a constitutional matter or not we do have the right to opt out and take control of our lawsuit which is what we did and so i don't understand how it is unless justice kennedy argument were to be played out and we were to violate the rule twenty three to everyone's surprise violates the rules enabling act in its core application of a opt out right in that situation all that has happened is that we have different lawyers we're going to litigate this on our own nothing more is required in terms of telling you that seems  very straight forward way of resolving this case all who are not necessarily a question of violet's and twenty three is using rule twenty three to create a new legal right that's the difference well if we were to do that i quite agree just as kind of i have never resisted the proposition that if rule twenty three were to be violated substantive right of theirs or create a new substantive right it could not be interpreted that way my point is this you have we think at the very least statutory language that can be read either way and the way you deal with that problem is to reconcile the two of them there's no reason to create a conflict between the opt out right in rule twenty three or all of the policy but you need tolling you don't need it perhaps on your second yes if we take your second theory we have to read the words be brought to mean something like deemed to have been brought when but something like that but that won't solve the practical problem believe so let me just say that though a lot of why because the phrase tolling here is misleading and if i could answer this question to reserve the balance of my time both united airlines and the charge in case consider the question does tolling mean suspend the statute of limitations and it says no united airlines is a case in which the motion intervene didn't happen not after classification but after judgment at the end of the case and the court said you don't have to just use up the remainder of the limitations period and charging is the case in which it was hundred three class action and the court said no no no tolling here doesn't mean just suspend the running of the limitations period it just means you have satisfied it and you're not going to be deemed untimely the tolling a fact in the one nine hundred eighty three context is provided by state law if i could reserve the balance of my time thank you coun mr clement mr chief justice in may it please the court section thirteen of the securities act and its three year time limit plainly provides a statute of repose this court said as much in the lamp and the two tiered structure structure and three is the legislative history now if you contrast that with the clayton act that issue an american pipe there we can quibble about whether the language was as emphatic but importantly that language itself was suspended or told if there was a government in foresman action and what this court held at least as i read american pipe is that we know that was a statute of limitations because it was subject to tolling in at least one circumstance and what this court said in the wall berger case of course is when you have a time limit that's subject to tolling that's a hint that it's a statute of limitations because the defining feature of the statute of repose that makes it different from a statute of limitations is that it's not subject to  since american pipe was emphatically a rule of tolling the court used the word tolling rule told tolling more at least a dozen times in the opinion that tolling rule simply does not apply to a statute of repose and we know when i say that you know well i think you have to perhaps read beyond those particular words and i think if you read beyond those words in the clayton act you get a textual clue that this is a limitations period because it says that it's subject to tolling if there is a government prosecution if you continue to read in the context of section thirteen you would find the two tiered structure of the statute which this court in lamp said could only be explained with the longer time period being a statute proposed but then and then if you were just to finish the point if you were inclined to go further and look at legislative history then you would look at american pipe where this court said the american  legislative history was silent and here the legislative history strongly supports the notion that the three year time limit is a statute of repose because as originally drafted it was a ten year statute of repose and congress specifically looked at it specifically looked at the two time periods said that the second time period was there to protect the defendants and then shortened it substantially in one thousand nine hundred four the two tiered structure can be where the second just cuts off the discovery rule so that would perfectly well explain the two tiered structure of justice that say you know usually it's one year after discovery but if you discover it five years later that's too much so it just cuts off the discovery rule and that's the only thing that the two tier structure means perhaps i don't think that's right even if you were writing this opinion on a clean slate but of course you're not writing on a clean slate this court looked at this specific provision along with some other provisions in the exchange act in deciding the lamp case and it said that the three year period was a statute of repose not that it just cut off the discovery rules statute of repose and we know that because in the lamp itself this court considered an equitable tolling argument and it rejected the equitable tolling argument precisely because the three year limit was a statute of repose yes now i suppose my friend on the other side could quibble that there were multiple provisions that issue in lamp but if you actually look at that there's a section thirteen of them there are two provisions from the one nine hundred thirty four exchange act and the language from the one nine hundred thirty three act section thirteen that's at issue here is the most emphatic the other two have the two tiered structure but don't say in no event i suppose one question is what exactly do have we meant when we say a statute of repose and we've certainly meant something different from a statute of limitations but i think what we were talking about in lamp was the cut off of the discovery rule it sort of didn't matter whether your claim was going to accrue in the normal way consistent with the statute of limitations at some point we were going to cut it off and that's what we meant when we said statute of repose as opposed to some term that cut off of variety of claims that just weren't before us and that we weren't thinking about well justice kogan if i could beg to differ i think if you go back and read the very last section of the lamp decision it's where it's pacifically rejects an equitable tolling argument on the basis that this is the second tier of the statute is the statute proposed it wasn't just talking about a discovery rule and frankly if you go back and think about the context of lamp was a pretty decent equitable tolling argument because up until that point basically every federal court that looked at it thought that the state law provided the statute of limitations and only very late in the game did this court come around and say no actually it's a federal statute of limitations and it's much shorter than everybody expected so in the cosmic scheme of equitable tolling arguments seems like the parties that relied on the a political state statute of limitations h this court had a reason to label it one way or another it this court labeled the rule of american pipe as a rule of equitable tone so that's one way of answering it but the second thing is with all due respect i think that your effort to say that this is american pipes not equitable tolling is built on a mistaken premise because it follows directly from the argument my friend on the other side made which seems to flow from the premise that in order for it to be equitable tolling it has to take into account all the individual circumstances of the case and if this court said in walberg or in talking about equitable tolling two of the classic situations for equitable tolling or categorical rules infancy and essentially lack of mental competence those are two equitable rules for when a statute of limitations are told and there are equitable rules i think the equitable rule that this court established in american pipe and why it was right on two occasions to refer to it as rule of equitable tolling is that if you were a member of a timely commenced class action you have an equitable basis to toll the statute of limitations i think it's as simple as that they didn't look into other circumstances because they didn't need to they had a sufficient basis for equitable toaster climbed i think to go through practical consequences ok sure so let me start with the simplest one ok class action motion is filed the court dismisses it saying the wrong th have been in california instead of new york under your theory because a complaint is filed in california that statute of limitations or that statute of r starts to run from the filing of the new complaint not the old one i don't think so just assume or my or for there are a rule that says if you're in the wrong venue there's a magic tolling but you're saying that that rule would not apply as i understand the federal procedure and you know that this is based on sort of background or standing so i could have it wrong but as i understand it in the federal system if you're in the wrong venue you can transfer the action but you don't have to file a new one you could you can ask for it but it's still within the judge's discretion new complaint you complaint number sure new complaint initiated with a you know asking for the same relief absolutely your honor i have the same party absolutely your hon intervene won't help if classes ultimately denied i don't take that position your honor i think a motion to intervene and i think we know this from american pipe that the motion to intervene makes it an individual action on that part clear complaint is denying those into all those individual complaints most of them are not transferred their spawn off into new complaints where whatever jurisdiction is then you well again as long as i think it's really a simple way to look at this that i think answers all these questions you ask at the end is the party seeking to recover based on an action that was timely filed that's why this is a simple case and it's why my friend does need a rule of tolling or some kind of super strong rule relation that opt out why could the judge have or can a judge who has a class action and tells people if you  e just file a motion to intervene it under your theory why they can't they do that because the motion to intervene if i'm following it they can file a motion intervene then the question is is the motion to intervene timely and so in american pi for example which dealt with a statue of limitations not statute of repose there were those individual motions to intervene now importantly the court in american pipe did not say all of those motions to intervene are timely because the class action actually filed the told for the period that there was a class action that covered the covered the claims the individual claims that's why my friend who desperately doesn't want there to be a tolling rule is absolutely misreading american pipe american pipe was a to case it looked at the circumstances of the individual cases it focused on the fact that they were filed within five or eight days of the denial of the class certification none of that would have been relevant so if somehow metaphysically even if that's what america is now that we're looking at the language of the statute and looking at twenty three and what the substance of the statute is why is his reading erosion he's if you're not  american soil he's not he's relying on the language of the statute in the language of twenty three and here's why his argument doesn't work on the text of section thirteen and it's very straightforward if he is not seeking to recover based on a timely filed class action he is seeking to recover millions of dollars from my client based on an action that they filed in the northern district of california in two thousand and eleven more than three years after these securit issued to the public that is the action they're seeking to recover that is the action to which you would apply the to plain text to section thirteen and i'm sorry two thousand and eleven is too late under the plain terms of the statute and it is a statute of repose and the case really is that what you are suggesting we there is only one view of the word action and in the case stops there and perhaps that's right but let's say it's not right let's suppose that action is a word that sometimes it's used one way and sometimes it's used another way and we should look a little bit as to the practical consequences of what you're doing and it seems as though and tell me if you think this is wrong that the consequences go something like this if we go your way in this case any future suit like this all large investors the kind of investors scalpers scalpers it's not going to make this mistake again cowper's is going to file a protective action for itself and then it can do what it wants opt out don't opt out wait and see whatever small investors are not going to do that they're not going to have the faintest idea that they should be doing that so this is a rule that's kind of guaranteed to create make work for district courts to be essentially irrelevant for large investors and put a pin in that maybe i'll get back to it maybe i will to address sort of the sort of parade of horribles i mean there's a couple of points i'd like to make about that i mean one is i can imagine that where you might think that if this were indy mac and we had no experience with the rule but we've had you know almost four years of experience with this rule in the second circuit now there might be some context where you'd say three and a half four years isn't that long but there are lots of securities class actions in the in the second circuit and despite what my friend says it's not like every stock in the index has gone up over the last five years you know some of them have gone down at that you know you know the rising tide hasn't lifted every stock and also this whole issue of indy mac also applies in tenby five actions where you can bring those regardless of whether the markets rising or falling so take the year two thousand and fourteen in isolation there were sixty three class actions settled in the second circuit in the year two thousand and fourteen there were exactly zero opt out zero out of sixty three class actions what will happen and what you or you have to do to get the his i agree to get the his result grew this far you have to read those words any action be brought and what they mean is the action was brought it was brought when they followed the class action whether denied class certification or not that's when it was brought and this is the same action it is not a different action it is the same action it is the same action because one the same words because you know we go through a list and moreover brought within a reasonable time why interpret those words in the way i just said the reason why is because it is the same action the other reason why is because you will even if not so far discovered that people do want to protect themselves and will do so whether they're big or small they will and therefore let's imagine a class action involving three hundred thousand potential plaintiffs in the class and imagine you're the district judge and imagine three hundred thousand pieces of paper coming across your desk you have to build a new clerk's office i mean you see that's the way their argument goes i think i think i think that's the way it goes now i'm a simple minded person i would not get past the first step of that argument is i would say they're seeking to  recover an action that they voluntarily filed in california when the rest of this class action was going on in the southern district of new york and it's just not the same action so you'd lose me at step one but if you got to the policy arguments i would really be if i were you know trying to like really twist specific reference to the two briefs you've mentioned it's worth going back to the indian market docket and looking at the amicus briefs filed there because those same two amicus briefs were filed swapper fessor some retired judges and they made the same prediction back then and it turns out it's absolutely not borne out by the experience in the second circuit now why is that well as justice kagan pointed out the reason that lots of small investors don't file their own intervention actions or separate actions is because it's just you know it's for them it's a class action or nothing and so you know they have to essentially rely on the class action device the reason that the institutional investors haven't done it is because they're not that worried about  lots of cases though there are some cases where they are worried about either the quality of the class counsel or some other counsel has got into them and convince them that they're going to do better if they follow them by learning not worried about timeliness because they're relying on the class action exactly if they stay in the class action there's no timeliness problem they get to recover and so all our rule does is make somebody who wants to go it alone they have to make that decision within three years and it's a tremendous pressure on the opt out right right we're used to thinking that the opt out right is a very important part of class actions that's what saves them from a due process problem that people actually do get to say i don't want any part of this and you're saying they only get to say that within three years which maybe not within three years of the time the suit was brought it may be six months of the time the suit was brought or one month or something like that and you know if if you haven't decided within that month or six months that these lawyers are not doing a good job you've lost your ability forever to do it for yourself well i guess i sort of there's a couple of points i'd want to say about that i mean even if you don't opt out you haven't lost the ability if you think the class council aren't doing a good job you have the right to object to the settlement and if you really care about individual investors all power to you but you know a lot of those settlement hearings are awfully tough well they're tough i suppose because everybody's all in the same team but if we create an incentive where the counters of the world are actually going in there and actually fighting for a better settlement for the whole class i mean that's a world where actually the small individual investor is wrong twenty thirty did not want that to happen rule twenty three wanted to allow people to opt out rather than to be confined in the suit for the entire pendency of the suit and then to start fighting the outcome at the at the last moment well two points just as kagan first of all whatever rule twenty three wanted the p s l r a actually wanted large institutional investors to stay in the class they actually have preferences for them as the lead plaintiff precisely on the theory that it's going to rise that all boats will rise with the with the institutional investors so whatever happened to rule twenty three i think in light of the p s sorry this is actually a better result but as to the opt out right the opt out right gives you a right not to be bound by a judgement that you had no business in procuring it doesn't guarantee that you're going to have a viable individual action to opt into now there still may be reasons why an individual investor or an institutional investor wants to opt out it's not much of an opt out go ahead opt out but you can't bring your own claim but look at what happened with the petitioners in this case i mean they opted out i used scare quotes because they filed their individual action before classification so they like preempted out but they opted out but they still preserved twenty five claims which have a longer statute of repose and they proposed they pursued some other claims other plaintiffs could pursue state law claims so it just if you opt out of a claim that subject to a three year statute of repose and you haven't brought in individual action before then then you do not have a timely action subject that statute of repose but that's the purpose a statute of repose and from the perspective of a defendant if you were facing just a class action you know that it and the time of repose passes then you know you're going to be able to get essentially global legal piece if you settle the class action if on the other hand you face that big class action and then two or three of the big institutional investors opt out and file their own individual actions then your going to know that you can't get global legal peace in the class action are going to have to pay sort of a holdout premium to those institutional investors now if those institutional investors fall before the statute of repose goes out then that's tough that's life but all of the policies of the statute of repose are implicated when you are in a situation where after three years you're no longer facing just a class action where you can get global legal peace but you're also facing an opt out right specially where the opt out is a big institutional investor and the whole reason they've opted out is to get a better deal from the class and that's why you know likely to go back to the question i entire class and you're only going to approve a settlement under rule twenty three if it's fair and reasonable for the entire class i think that's where the protections are built in for the class and its peers emphasis that nothing in the rule that we are proposing is going to prevent anyone from recovering from a timely filed class action it's only when somebody wants to go out of the class action and get themselves a better deal that they have to have a timely action to get the better deal if they do then my clients don't have a statute of repose that if in a case like this in two thousand and eleven even before classification decision is being made they decide you know what we're going to be better off if we follow our own action in the northern district of california it's a bit rich for them to say ok even though we've decided to file our own action for our own reasons because we think we're going to be better off we still get the benefit of the timeliness of the class action that we're essentially pretty opting out of and magically they think they get the benefit of that without even applying tolling or some kind of relation back doctrine now i don't think that works on the text of the statute i don't want to get into a debate about what question presented one has in question presented to us but it's worth remembering that even if you somehow think you can maybe interpret section thirteen to encompass this theory i mean there are other cases this case had this court had four petitions in front of it none of the other three petitions invoked this issue in the context of section thirteen the other two of them were  ten b five actions one of them was an implied statute of repose provisions so you're going to have to take one of those cases to grant the question that i thought you granted this case to decide which is as a general matter can american pipe tolling override a statute of repose  think the answer to that question the question that my friend really doesn't want to spend much time talking about is no a statute of repose means repose its defining feature is that it's not subject to tolling or a stop over but i mean there's different levels of repose i mean the you have reposed under his theory in the sense that you know what people are suing you about you're still facing a lawsuit in the other case there aren't going to be any more surprises you know what's on the table that's repos repos can also mean in your sense that everything is done you're not going to go anybody anything but we know that's not the reason because if you bring your claims within the period that can extend fifteen fifteen years however long these litigations take it well mr chief justice i think that both while berger and the text of section thirteen tell you what repo's a defendant gets it gets no new actions that's the repos it gets if an action is filed before the time deadline then of course it's going to be subject to liability under that action even if it takes another couple of years for that to run its course and be resolved but you are not subject to additional liability under actions that are filed after the period of the statute of repose and that seems like a very reasonable compromise or it seems uncertain whether you're being subjected to liability i mean the liability is the same if you have the class action including helpers and as it is if you then have your first class action without calipers but another cowper's suit i'm not sure that increases your liability well i'm absolutely sure that it increases my liability and so are my clients mr chief justice because they know from experience that the only thing worse than having a class action against you is having a class action and some individual actions against you because then you got to pay to settle the class action and then you have to pay it at least and i mean requires perhaps more management scrutiny by the district judges that is possible but you know it theoretically if a big chunk of the class is out you're not going to pay twice for that right now but it typically in specially in securities class actions is not a big chunk that's out it's a handful of institutional investors who are able to use the fact that they've opted out for additional leverage to get a better settlement than they would get in the class now that works against the principles of rule twenty three in the p l s are a but there's nothing in my client's can do to stop it if those individual actions are filed in a timely fashion but when those individual actions new actions are filed after three years is passed i would respectfully suggest that that fully implicates the policies behind statutes of repose generally and the text of the statute and then i do think that gives you a very easy way to essentially decide this case which is to just ask the question is the action that they are seeking to recover millions of dollars on one that was filed within three years of the public offering of the securities at issue here and it was most certainly not it was filed in the northern district of california in two thousand and eleven more than three years after the securities were issued and the only way they can make that action timely is to point to something else that was timely filed now at the time that they opted out consequence wasn't even certified that action over in new york they weren't even a party to it under smith v their and standard fire so maybe they can get the benefit from some super tolling rule or some super concept of relation back but those are two things that you don't get to use to impose new liability in the face of a statute of repose i don't think ultimately whether you call it equitable tolling or not matters much this court and wall burger said the defining feature of a statute of repose is they're not subject  didn't use equitable tolling as a modifier and of course as we've discussed or it was discussed if this rule is something other than a rule of equitable tolling and it's a legal rule then the rules enabling act problem is front and center because we have a defen under federal statutory law it's a substantive defense under walberg or to not have new liability new actions filed against us in over three years if the only thing that trumps that is a judicial construction of rule twenty three there's a rules enabling act problem at the end of the day i think the denied or there's an opt out period then they'll have these individual lawsuits spin up and whoa we didn't expect that at all but the world that they want is exactly the same it just involves more paperwork what they want us to do is to intervene in the class action on day one and then do nothing and sit back and when we eventually would otherwise intervene then spin up our lawsuit nothing will have been gained they won't be on anymore notice american pipe explains and particularly in the context of section one when you're talking about bonds that they issued they knew that we were out there all that we didn't do was to follow our own complaint to get stayed or our own motion to intervene to just pick up the district judges time and then later we would proceed on the exact same lawsuit so there's no additional surprise at all under our rule all the reasons perhaps as a trap for the unwary then if you are trying to understand what action means in the community different things in different context you have to realize that we have a body of law here we have not just section thirteen but we have rule twenty three which contemplates that we have the right to notice and the opportunity to opt out not into the vacuum of space but into our timely filed initiated by the class action a is i do believe the other side profoundly misunderstands the private securities litigation reform act the entire point of which was to not have a bunch of parties in their litigating on their own it doesn't contemplate that a bunch of institutional investors will be out there to contemplate that there will be one it's called the lead plaintiffs it contemplates that other parties might try and become believe plaintiff by submitting a notice not by moving to intervene it contemplates that a new lead plaintiff could be named after the expiration of three years what happened here is this the statute is written in bilateral terms later on thirty years later we get rule twenty three we have to figure out how to make the two of them work together what we know is section thirteen wants them to be on notice of the claims against them and merican pipe says ok you know that from the class action complaint rule twenty three then says we want a representative party we don't want to take up the district judges time that's the whole point of the rule the way you put those together is to say that the class action  complaint in the passive voice brought the action on our behalf and then we just took control of it when we opted out everything makes sense and the judiciary which is what's being protected here not in the equitable interest of us but your district judges all their interests are furthered together thank you thank you counsel cases submitted