mean doesn't think he's basically turned on how we read the language of paragraph five of the october seventeenth two thousand and twelve judgment that was entered by judge fitzgerald and i have a question is whether we defendant is paid on account of any liability claimed in this action putting all costs of suit interest and attorney's fees otherwise recoverable in this action by plaintiff and as judge clarified there is only one plaintiff even though he seeks to be named as the putative member a representative of the class but class certification was denied so what's left for  mr sultan in light of the eighteen thousand that he makes actually nine hundred thousand that he accepted under the offer of judgment the issue for mr sultan is the classification issue that's not responsive to my question mr tracy what interest does mr sultan have left in the action in light of the nineteen thousand that he liability claimed in the action so there may be other unknown potential class point of state could recover down the road but not mr sultan but that would be to same thing you are a jury that a so this is any liability cleaned in this action those were part of the claims in the action you know the i think you're quite right that the class action can be pursued by another plaintiff if he's a problem represent the class of the class is a good class but mr sultan has no interest any longer because all his claims any well i don't read it on that bing i read yvonne to say that if you are trying to preserve some other additional claims that was incumbent upon you to make it clear to the court that this was a partial settlement that was conditional upon pursuing whatever other crap claims you wanted to pursue but there is no evidence that that was done here well there is evidence that that was in our office  of the defendant's proposed judgment and you send an e mail back saying yes i do so whatever those earlier discussions and negotiations were you agreed for your client that any originally claimed in this action then why didn't you respond to the district court's e mail when he sent you the proposed judgment by saying just a minute your honor we were reserving some claims here this is this is not a complete settlement of  the judgment in terms of well if you if you don't think that the judgment incorporated all of the terms of the settlement why didn't you then move to alter or modify the judgment within the time set under the rules of civil procedure so that you could raise that appeal if you agreed to the form of the judgement that's where i'm i'm having concerns about whether or not we have been invited or situated it would be no different than if you went to a jury trial and won on all of his claims you can still appeal  benefit significantly i mean these issues are all pending in the district court if the rule sixty five in this case will come back up in but the question is what we do with mr sullivan i mean we're not in a situation where we have to worry about denying justice to what may be and i'm not you better make clear that your acceptance is conditioned upon preserving certain claims that you are not except in the settlement funds for i mean you didn't do that here right because your honor they have said the rule sixty eight th sixty eight offer of judgment the rule is written in a one sided way that either you accept the judgment or you suffer the consequences and no plaintiff could take a real sixty eight offer because it would wa right to appeal he without without making it clear to the court that that offer of judgment does not resolve all claims that the point of has i mean there's nothing to prevent a defendant from offering a partial judgment on a case and the plaintiff from settle and release according to rule sixty eight class action claims you should mention class action claims were you trying to slip something by here about mr not any and all claims not any and all claims including class action claims and you didn't say that this judgement was in satisfaction of any and all claims you said he was on account cases not the entire set that we cited to this court not the shorts case not the watch case a couple of the other cases there have been a reference and in fact in due course there was a reference in the sec recognizing the class service been denied we settle everything didn't settle class clanton so we settle the case and do the said if you don't reserve something like class the right to appeal the class claim it's it is gone and ever and the court found that first there was no nothing like all know all so what good are you here today you know we'd like to find out what happened i mean if it was if it was a matter  whoever negotiated this understood understood that it was just this little eighteen thousand dollar deal here and the to rest up but was ok this offer i want this language and stat but steady accepted the offer that was there and there is no evidence he says he said in a declaration that he told a mediator that he would like to preserve feel there's no evidence that that was conveyed and judgment wait a second i want to preserve my right to challenge the class certification this is there's nothing like that your honor there is an offer there is an acceptance there is a in front of the an offer and there was an acceptance in different language in exceptions was we accept the offer if the judgment reason in favor of plaintiffs and you didn't like that so you said no we will go with that so that in classic parlance it was an offer and a counter offer a counter offer is not except it's now at that point the judge intervened and said do you  want defendant's judgment or not and at that point there was a withdrawal of the counteroffer and there was an acceptance of the prior offer but correct that there were certainly to be to the extent the acceptance was was it offer and so he had he so my question goes back to you why can't this fifth paragraph be read that you're paying eight hundred thousand dollars on account of any ad liability like you know you making a partial tracy has come up with a new semantic argument that goes some other direction but the supreme court which is you know it's possible for drafting or says that this is about settling claims and when something says it is  account of any liability claim in this action meaning on account of to mean because not in partial payment certainly not a partial payment it is it is good because of it is a job because that's not offer this is our offer of there's a judgment and acceptance it's under the offer we made not the one we didn't make any sort of a will take the offer you may now offer leaves nothing left leaves nothing in this case well is it your position that that settlement also killed with class action preserves us i mean the problem is that you want to extend the holding in ever to in essence i guess of your default position would be if it's not addressed at all then it's preserved and i think that that over read  contractual intent was between the parties here you're trying to use perl evidence to alter the terms of the judgement there's nothing ambiguous in that language as as we've discussed and i think even under california is more liberal parole evidence rules that you would not be allowed to admit that evidence in the face of clearly i don't think the language is clear because it doesn't say release of class act or release of any liability it no known and future claims that i may have had currently have or might have in the future but if you are releasing your if you're taking the nineteen thousand on account of any liability claimed in the action of pretty clear to me why write appealing goes to trial there is no way mr salt could beat this offer so essentially we've created created a simple mechanism for defendants to a limit shall limited the class action because if you lose class certification the dismissed class certification ruling to say that but in my hypothetical you're he's rejecting the defendant just as you wager right he says well i want my rights so i guess of the case he was treating i'd be with you if you hadn't said to the district court i set up the offer of judgment but that's you didn't say except that i want to preserve my right to challenge your your prior order who should bear the burden of making clear what the terms of the settlement are you're asking us to read a term into the judgment that isn't there and wasn't raised with the judge when the judge agree to the proposed form of or what but the evidence here is that the parties had these discussions and it makes sense that parties that are the big battle in this case was on the class issues and then there's the small settlement for the class claims there's a declaration saying that this will sixty has been discussed when this rule sixty eight was per centage it was logical to assume that the parties were simply engaged in an efficient litigation strategy to get to the meat of this case up on appeal because parties can stipulate to a color jurisdiction there would be no way there's no efficient way for the parties to agree to appeal other than a