you i want to summarize my client's position by making three points one is about protecting did billeted to opt out of a class action to the choice of law dallas's that's required in a class action litigation whether it be trial or settlement in three predominant issues of the rule twenty three a court cannot exercise jurisdiction over out of state plaintiffs with no contact to the home form without giving them the right to opt out that's the phelps patrolling the class action context the name members of the class can sit back knowing their interests are protected by class representatives and class council and the court hear this the court sitting in los angeles has all the cases from around the country transferred by virtue of m d l process in all the individual state class actions or state then a settlement is proposed the problem arises because the statute of limitations is told in some states under the doctrine announced in the american pipe case but in those states like virginia which do not recognize as american pipe cross jurisdictional tolling the statue limitations is told only if because the vaccines under that state's laws have been played by certified class represented i was told when you file the action i looked at casey and casey said well it's not going to be told by a punitive class action raising other claims in some other jurisdiction  that that referral that issue should be made to the court in virginia not here i'm confused about the tolling issue ordinarily the way a statute of limitations works is say it's a two year statute of limitations means you to file an action within two years and tolling really doesn't come up unless an action is not filed within two years and you need some tolling so that you can file it in say three years because  old but here if the action was filed why isn't that the end of it well because what happened what the court in los angeles did is release all claims except for people who opted out and there was no twenty so what you got i bargain so your problem really isn't the tolling it's the bar yes sir because you know there was no class representative certified because all the claims were dismissed and there was no opportunity to sort of misguided or the other named represent this class representatives and without them being certified under the casey versus mark aces which is what we have there is no telling the statue of limitations under to go so that the class cancelled the class representatives in the court were required to protect the rights of the unnamed absent regions but instead they did not and they blocked every effort we made to protect our ability to opt out by simply very simply creating a virginia subclass with large number of absent people that mean that's what the filter trauma cases and i don't think the district court has the right to change that what the the virginia claimants i think there is something in your brief that they would have different statutory remedies than other claimants is that correct that's correct well and what are those well we have trouble damages under the consumer protection act in virginia i don't believe that i'm not an expert on california law but i don't believe that that's correct and i don't believe that's allowed under california law also we have minimum statutory damages of a thousand dollars for willful misconduct i don't think that exists under california law and the the court you know said early on well if there was a some like you show me a state that if the case for one yes we do i think that i think the average recovery is somewhere and i'll be i'll be corrected if i'm wrong but i think it's three hundred to three hundred fifty dollars so you on choice of law cannot be relaxed in a class action no matter how difficult because of the consolidation and the bar purchasers of these cars get around three hundred dollars each and they were gotten around one thousand dollars each in virginia i  laws were that they could not be a predominant because the state laws were so different then in the court refused to sort of five nation like less than a supplement was was submitted and the court said you did the same analysis it came to exact opposite conclusion we believe that's a that's a pin based on the chances for the from quoting spring court language correctly and the supreme court case says that in the summer context you have to give heightened scrutiny to the predominance requirement not relaxed scrutiny and that's what we say happened on this record  good morning i'm george cochran counsel to palance a hern and york i'll try to reserve three minutes this morning i want to focus on just one issue today the award of attorney thiis the core problem here is that fiord on the actual benefits of this inquiry is key to the proper evaluation of any petition and order that miss is this fundamental point must be set aside i had a lot of trouble going through the record in figuring out what the value of the settlement was because there is there's a lot of different calculations and some of it seems to be based on what the claimants would already have gotten under the program so can you have to start out can you first explain to me what you think the value of this element agreement is and how you calculate that one of the components well your honor you're correct in pointing out this very issue and that's why we're here is that the record is muddied because the court never took the time to read choir played of some meet their burden to specify and perhaps even use expert testimony to the value their actual contribution what's unique here is that as you say that the defendants have already introduced a voluntary program designed to avoid lawsuits by giving them making them whole an adding even fifteen percent for good measure because of the inconvenience but the very day that the e p a announced its findings that their estimates were off and the p program was in a deuced several of these lawsuits were filed they were ready to go get to the point of how much more the people get under the settlement than they get under the voluntary program well there are two enhance devalue the first is that they actually obtained for the class is they had a longer claims period which i think is the real benefit and a lump sum payment option and so that they that was equivalent to the l pete right because i thought that s what they ate that so so there would be some inherent value for getting a lump sum beyond the the payout over time is that what we would have to include i think the most generous way to put that your honor is that it would definitely acquire expert testimony if they want to show any value added to converting the l or p to a cash or a lump sum payment the longer claims period we can now looking back way after the few words where they make a proper estimate i believe i've been looking at the final tally of the claims which we did not have at that time because they were under seal or the final court wasn't even ready at the and we had already made the awards we now can look back and see that approximately twenty two million dollars by my calculation in lump sum claims claims responding to you know by the claim forms that would not have been made but for planers conservation what the settlement got the class was twenty two million dollars over what the manufacturer opposing counsel may differ i think it might be a little added to i can't hear you when you talk when i'm talking sorry and you don't know my question has been if i understand you right what you're saying is the class got twenty two million dollars because of the settlement that they would not get at a based on what the manufacturer agreed to give them before the litigation yes your honor i think that's my calculation of the final tally but you flex technically that by the way it's also a thirty percent claims rate as opposed to weaken ten it should have been an automatic payment but you've been one hundred percent participation but technically it means the total field ward of about nine million is forty percent of the settlements true value now if you add the fees to the claims together it still amounts to about thirty percent of the total paid by defendant due to class council's efforts that's about two million over the benchmark by my the twenty five percent benchmark by my calculation so what i want to emphasize my remaining time is your honor pointed out the district judge first of all found for example that the hunter and brady fees were fair quote in the context of the amount the class maybe see even the settlement end quote moreover the court stated elsewhere that total fees  far lower than the twenty five percent benchmark your honour's a district court can certainly make estimates in evaluating a few request but every assumption must have some basis in the record and the record here shows just the opposite no where is the dollar value of plaintiff and hansen's discussed much less analyze the reason simple plaintiffs never produce pacific objective evidence supporting the value of their contribution now contrast that with the six thurgood's decision in shane are supplemental authority for the parties admit the expert report valuing the settlement which was sealed there was crucial nonetheless plaintiffs continue to walk these muddy waters today quoting to their own answer brief quote none of the a palace is actually challenging the amount of the recovery for class members an extraordinary testament to the fairness of the settlement and quote under the circumstances your honor as we respectfully submit that plaintiff contribution is more like an object or who enhances the value of what the defendants already agreed to provide in those cases the court places a heavy burden on the applicant to a common fund and defendants paid the fee separately the district court took the lodestar approach but a lodestar still has to be adjusted up or down depending on a host of reasonable this factors like the benefits actually obtain for the class find anything different from what the manufacturer the consumer advocacy group in the government had already said not to my knowledge of the rules opposing counsel can answer better but that's one of our points your honor is like a week after the m d o was organized they had reached a tentative settlement already they had another eight months was devoted to confirm it or discovery and basically settlement negotiations you know far from exceptional result way unless it's a common fund i believe then you pretty much have to do the percentage approach so that's within the court's discretion i believe they are only disagreement as with the multiplier that was applied to a yes or set of that is ok yes and that's my point on ferraro the court went on to make a specific finding that the relief of teen was not just meaningful it was excellent no where is such a finding ever made regarding plaintiffs actual and hansen's yet multipliers ranging from one point two two to one point five five were awarded there's no predominance and then in the for the semi class it said i don't have to stick with that as a matter of law because classes are different to their show management problems no opposing counsel say no that's that's erroneous you don't have to look at management problems but in fact as he points out there's a heightened scrutiny to protect absent class members so my concern is that the district courts failure to get to go through the matzah steps merely because it was a settlement class means that it's made a legal error in and certifying that class can you explain to me why that's not a concern well first of all this this court went through a laborious process of evaluating this settlement it was nine months from the preliminary settlement right but worth the classification point and  the question i have not whether the settlement was fair i mean i am camm is clear that a fairness analysis of this element can't substitute for up the proper class or if occasion analysis right well in math that the the issue was context as your honor has properly recognized but they sought to apply the law of california extra extra territorially to the consumer transactions in forty three other jurisdictions there the the court then found that the variance is the state law overwhelm the common in a contract between the parties it's a settlement so it's a certification of the class for settlement which cam say as other than the magic pill of the issue requires exactly the same analysis and in fact even a heightened scrutiny which is a fairness analysis case is is much more like the the case that it's not actually on all fours with which is hamelin versus chrysler which is that although some of the class members may be possessed slightly different remedies based on some statutes or on or co personal injury claims propriety of different positions that people were going to be in where there was future claims a variety of different positions and liability and whether there was going to be an ability to pay here every claimant is getting a benefit through contract class members were you know how really i really am plaintiffs the absentee virginia plaintiffs protected if in fact and  do we know based on the record that we have whether or not the virginia plaintiffs could have gotten more well i will leave that to my co counsel to them for three janine's to get a minimum of three times as but i don't believe that's be the case and i believe there's been other litigation in virginia but i will leave that to my my co counsel to discuss it with with regard to the attorney's fees what documents primarily did the court look at that we need to look at that's in the record is it the exhibits attached to yes a declaration of to correct the record that mr conference that the actual amount is i'm forty three at that time was forty three million dollars and that's that exclude the amounts that were already made available to people in the i'm given a stream of payments voluntarily and i have the option to convert it to a law that may have some value but it's not the whole value of the lump sum well these are additional people that came in and the other factor that another value that the settlement had was we extended the claims period for two years because the lifetime so was there an expert any expert testimony of the value of the act to the class of it was here there was not but that does have value and there was also the additional funding in the settlement for a two year for a particular type of vehicle that was that the four by four program or by forty program which was  income and it does not include a reduction for the stream of income they would have gotten anyway a reduction of the stream to the present value also that there is no quantification of in the record of how much the extended claim period is worth if i got that right i believe morning hours just judge when pointed out i think some of the hard questions were directed to my co counsel that should have should have come to me i thought you were the one who is prepared to discuss discuss the predominate issue so let me before i forget get the answer by ass counsel do entitled to enhanced remedies under virginia law judge was very aware of that and found that any enhanced remedies would be highly speculative and in fact record that was presented to this is that they all would have in this context mean we don't know whether they would have won their case or settled their case meaning all those remedies required a finding of willful nicer something i can the punitive damages and that despite a long period of confirmatory discovery no counsel raising any facts that suggested that would be provable as i understand it the confirmatory discovery just confirmed that things were as the consumer advocacy group that's raised this in the first place in the federal government and the so parties in this case   the virginia plaintiffs would not we're not likely to get the additional amounts sure you know that's at the scott excerpts a record at page sixty four and of course layered on top of that issue was counsel mr fineness own arguments to the trial court that those virginia consumers would already be barred from bringing these claims under that genius on casey decision so the court had a second reason to discount the probability of those enhanced damages was that plaintiff counsel himself was arguing those claims were already time barred so that he's through the courts it furthers the settling parties have classification determination this is part of the fairness to travis part of the fairness determination so that's the point where he did the classification decision my recollection was he'd noticed the problem with virginia but doesn't resolve it and so he ultimately determines after the i guess a confirmatory discovery that it would be speculative so i guess the question is does the at does they have to make the classification let's assume that we we credit this statement him at the virginia plaintiff's rights didn't have to be protected because they couldn't have done any better how do we even analyze a classification decision where he didn't and i did not have in front of me where that statement was made i don't know if that was a preliminary fairness hearing at which point the court would have been addressing certification i apologize for not having that at my fingertips something else show an innocent mistake as opposed to lying about it that was the consensus of counsel involved correct  clearly the courts have said yes you know the rule twenty three standards apply and he the context i think the question is is the inquiry slightly different depending on the context and maybe you'll different answers and i think we have a good example on the record here of how that plays out what the supreme court said the manager phil of the concern is different but other specification of the rule those designed to protect absentees demand and deluded even heightened attention this element context right so here we have an instance where the judge said i'm going to assume that possibly all these laws of all fifty states could apply i found on the record that you're essentially the defendants are giving one hundred percent compensatory damages and that's at the record at scott excerpts the record fifty three and fifty four so no matter what differences there were among state laws for instance in standards of proof they wouldn't matter because the defendants were agreeing to give one hundred percent compensatory damages then you move to well do some of these states allow enhanced damages for punitive situations or willfulness and there the judge also made a factual finding that despite all of this confirmatory discovery those so then you have a situation where the judge has said well despite whatever differences there are among these laws it wouldn't be outcome determinative in the context of this satellite because there's one hundred percent compensatory damages and no record evidence that would support the enhanced damages so i think your honor's question may raise very difficult questions in another context but not on this factual record  and i would say on shots and he should style primarily with the rights of the defendant the comments about the plaintiffs absent class members rights were sort of an aside and what they did say was that it's minimal due process and what tires they did their testing on certain temperatures that would advance their ability to claim forty miles per gallon we think that's willful error experts also would have shown that we believe  when special tires and what was the thing the temperature was beneficial to them doing their testing that this was contrary to the regulations of federal regulations on how you supposed to do this and that was all in the united states  posing councils as eight months of lawyers scrutinizing the discovery and the conclusion was there is no evidence of the just record agree so therefore virginia plaintiffs could not  doing this law for thirty years in virginia i came out here to oppose this i had everybody in the country saying that virginia law was somethin though they've never tried a case in virginia and i'm the only one who's done this in virginia what a growing evidence can i look to for that proposition yet ye in my in my reputation for these types of cases as to side of virginia court is in there the other thing i just want to make make it clear that when it goes back to the ability to opt out absent class members who are not named represented as cannot because the statute of limitations has expired by the time we got to this point and no virginia because the vaccine has been planned so at that point and the class representative asserting virginia cause of action has been in play then the court dismisses all the cases and then the ability to litigate the virginia class to establish that this is becomes worthless and then everybody is left with a hobson's choice of opting out that the statutes expired and that's just not the