in our opinion was missing from judge bianco sentence if you have no further questions i'll sit down thank you very much well researched decision next case on the calendar is chavez versus occidental chemical here on ice it is undisputed i ask you i think it's a question to be asked at the outset because it's a little unusual the question here at the forefront seems to me to be whether we because normally we would first if we knew that we didn't have to search we would first look at whether the new york adopts across jurisdiction tomie class tall and then if it did we would decide whether it applies here what makes this a little different is that in order to certify we have to certify to the new york court of appeals could in theory be certified to the court of appeals but i think that the second issue doesn't warrant certification both because if the court said gutierrez seven o two if you're right but my point is that we still would have to decide that for two reasons first because it is intensely factual and the court indicated in the group here is case seven zero to thirty one seventeen that when the question is so intensely factual that sort of case may be inappropriate with the idea being that you certification on that second issue isn't warranted because i think you can say with some certainty what the outcome is under the verses lebanese canadian banks standard when you can say with some certainty you don't need to certif and i think it's you can say with some certainty because both the law it just does not favor them and because i think the facts of this case are so clear that the they have no duty to the name plaintiffs have no duty to protect the absent class members as far as the law goes you have not only the cases that have addressed this matter specifically the facts of this case the eastern district louisiana from by the fifth circuit and hawaii but also just the kind of more generic cases were cases were dismissed i'm sorry certification was denied without prejudice to reinstatement there are two of those cases that giovanni yellow relied on i think the answer is clear from giovanni of itself which says that and when certification is denied but if you look at it to to  the case they relied on the most were bridges from the fourth circuit and andrews versus or out of the six circuit both of them involved denial without prejudice to statement it was especially forgiving and bridges because they said all you have to do there and will reinstate the client is file your reply brief but the fourth circuit said even that's not enough to you the absent class members are relying on people who don't have any obligation to do that they don't have to come back and file that  and because of that they said totalling was no longer appropriate in and resources or after sort of after certification was denied without prejudice the plaintiff's lawyer said i'm going to file a second certification motion and the six circuit there said it doesn't matter what he says until that second motion is filed the clock is still running and i think because of that the only thing they have in their favor the only court going in their favor is wearing saying that you know this kind of potential  filing or potential revival is enough as delaware but delaware is in many ways the anti new york in new york it's overall versus the seat of clots and mccarthy versus volkswagen of america they say you c new york law in addition delaware they adopted or they rejected the standard that both parties say is appropriate here the objective reasonable standard they rejected that standard they're in favor of what looks like a standard that you've got to have a ruling on the merits but they said there was it keeps running until the court ends the class action as a final matter and because they criticize the texas district court for not getting to the merits it looks an awful lot like the clock keeps running until they say tolling and as a final matter that's never been you know that you can't find a case in new york that says tolling goes that far and so i think the law is going to be a real problem with them and i think that's one reason why the court doesn't have to certify that as a factual matter and i think you can say of the facts are bad for them because you can just look at their conduct and know that they didn't have a duty to fall for reinstatement for a seven and a half year period from october of one thousand nine hundred five when the class when the when the court dismissed the case and mark the docket case closed for seven a half year period until i think may have one of two thousand and three they filed one motion for reinstatement which was denied in february of  class members would have relied on the class action or had no reason to do so i'm not sure how the circumstances would allow the conclusion you're king because again in the words  yellow the class representatives that could be the name plaintiffs were under no duty to represent the absent class members that entire time they were not under no obligation to file suit and coast reka there were no under obligation much less as a class action even assuming it were possible to do so and judge lake indicated some real skepticism about that and as it happens it wasn't maintained as a class action and coaster reka it was an individual action once that was denied i mean they didn't pick or didn't even confront you know what happens if it goes to judgement abroad what if it is dismissed for reasons not having to do with jurisdiction which would allow them to return what if it's something like the panamanian plan of settled extent we agree that new york can recognize cross jurisdictional class action tolling or not as it wishes why wouldn't it be part of the certified question to ask it whether it recognizes it and insists pacifically whether it would recognize it in the circumstances whether it thinks that the dismissal here would be enough to preclude class member reliance because i think again i mean the court might very well answer the question in your favor i'm just asking why we shouldn't view that is all something that new york's should tell us how it wants to treat it because i think you can look both at the facts of this case and at the law of new york and say there's really no basis for looking at the law and seeing them tolling under circumstances anything like this and stud you have not only the dismissal without prejudice but you have all the other courts have addressed the facts of this case you know the fifth circuit again which knows these f n c dismissals and return to his diction clauses and also the the hawaii law and i mean there's just you know you can't look at any particular case and say where there was a possibility of return that was ever but that's but they didn't you know by nine thousand nine hundred ninety eight that settled most of these claims individual claims and if you look at two thousand and ninety ninety five after ninety five and up to october of ninety seven when the sexual was about to run in hawaii you know literally good morning your honour's may please the court jonathan massey for the plaintiffs the pallies in this case our position is that we don't object to certification we think your honour's could certify both questions to the new york court of appeals if you wish that's what the third circuit did in certifying this basically the second question to the delaware court of appeals that produced the marking as opinion which reviewed the same record is judge angle myron came to the same conclusion but we also think we're quite confident frankly in our position on new york law and we don't have we have no objection to your deciding both issues we think contrary to my friend of course that the the issues are clear in our favor and the new york tolling principles are nowhere near as  only real problem with with certifying both at the moment sitting here is there's just so we're dealing with it's the state's highest court and we don't want to ask them to do things for us unless we have to as i understand i understand i'm just pointing out that the third circuit did that all of our but with good the second question let me focus on the second question some then i also have to talk about the first with all respect i think it's quite clear that there was that a judge uncle maher was right and to the extent that we think this was an intentional intensely factual record with a lengthy procedural history i would think the judge angle myer's use would be would be persuasive the facts here are what in particular would have made it reasonable for plaintiffs to rely on the expectation of representation by the other groups after the dismissal even with the return jurisdiction what what in particular so the because the matter continued pending before judge lake he said in this is on page eight sixty of the appendix that he was intended to reserve jurisdiction over the matter so that even after the f n c dismissal there was a return jurisdiction clause was the promise that the case would be reinstated as if it had never been so so what if all the plaintiffs had gone away and never come back well because partly because answer is my is my friend's reliance on the bridges case the bridges court look to the overall conduct of the litigation what happened here was the plaintiff's tall judge late before he imposed the f n c dismissal the form forms are inadequate they're going to find under this doctrine of preemptive jurisdiction that they they lacked or stiction and we will be back and they were back within six months actually just over five months a motion for reinstatement was filed before judge lake and so everybody knew they they were subsets right well the coast to rican plaintiffs of course there wasn't there it's true that only the costa rican plaintiffs filed for geographical subdivisions the class definition included plaintiffs in ecuador and panama and everywhere else car compt of the plaintive car com of the lead plaintiff was from guatemala so nobody was still include costa rican play in today yes our case before your honor today in that case the question then would be does it matter that is to say care if if if that's right we go on can't it be up to the district court whether it's just cust and he did not require that only that other plaintiffs from other countries would need to file a page eighty eight sixty three a six sorry eight hundred sixty three of the joint appendix judge lake said that if you need i other that the defendants could raise the are in the state courts as to whether non coast to reek of plaintiffs needed to file they did that in the state courts the state courts rejected their arguments as to judge judge hoyt who's also on the on the souther so that defend his position has to be that not only was it unreasonable objectively unreasonable for the plaintiffs the absent class members to rely on the class action it was also in some sense objectively unreasonable for the state courts of texas and for to understand that this class included non kosta rican plaintiffs the one answer to your honor about why was this reasonable is it that's actually it turned out in fact that this case continued to be captioned and treated as a class action so i think it's hard to say it was objective only unreasonable for the absent class members to expect that in october of one thousand nine hundred five that's exactly what turned out to be the case it continued to be treated as a class action with that you're always supposed to put in and you know and you can come back if you can't get jurisdiction elsewhere some kind of language that effect and it's orders that right well they typically do i don't i don't can represent that it's one hundred percent but was my understanding and that's right and i think judge lake understood that he understood her or his orders better than anyone he understood that you know that he had not meant to dismiss without for he said the final judgment was final for only limited purpose for permitting an appeal that did not that if the absent if the plaintiffs who were dismissed and told to go to other jurisdictions did not proceed if they abandon their claims if they settled individually i don't see what the source of any ongoing obligation to be absent class members was and absent that i don't understand how it would be reasonable for the absent class members to rely on the pendency on the docket sheet of because because after class obligations because they were named in the caption as class representatives in texas to pursue actions elsewhere around the world is that is that what you're saying well they are there if they in their we will be back and the case did come back within five months i don't think that this was a surprise by anybody this is exactly what the plaintiffs predicted was going to happen and that's just like understood that that's why he said this is the motion to reinstate is a direct continuation of the prior proceedings it wasn't your honour's hypothetical could lead to a different result if people were were we're we're we're not rick not had not filed a motion freed statement if it had not had not you know different facts makes different cases and i agree acknowledging that the facts here are unusual but it's also not true that thousands of people were settling and dropping out there the episode my colleague referred to in hawaii represented included ten ten plaintiffs who f of class action in hawaii if you're honest look at the there was a episode in florida that involved thirty three hundred plaintiffs but they did not drop out and file separate actions they filed and this is at the in the appendix at page three to fourteen eleven ninety and twelve one thousand and twelve twenty one there were thirty three hundred people who misinterpreted the scope of judge lake's injunction and he glaser clarified he had not meant to enjoin all the b c p litigation so they filed the temporary placeholder action in florida which they dismissed before it was served and then the remaining but it basically were demonstrating their continued reliance on the texas so i believe the only way to say that it was unreasonable for the absent class members to continue to rely on that on the case would be to say that all these other judges were objective liad reasonable and their understanding that they can case there the district court deny class certification and dismissed for lack of subject matter jurisdiction that's a plain it's a clear on a a big us ending of the case this case is the opposite because judge lake did not dismiss for subject for lack of jurisdiction he said that he was continuing to exercise jurisdiction over the case that's what he said in on page sixty of the of the appendix so the other some of the other comments that your i think your honor is right that f n c dismissal could be treated as being equivalent to a stay the delaware courts have used that analysis to say that and of course the supreme court has said that the f n c dismissal is not a decision on the merits it doesn't and the case forever and that's what judge angle meyer pointed to as well vic the f n c dismissal simply actually contemplates that there will be further proceedings in the case it's different from a complete dismissal on the merits the notion that judge  that new york law is harsh and unyielding i think is also incorrect that new york law we cite the case of the american home insurance against the american home products case the supreme court action had gone on forever and so that led to an extraordinary time delay in the application of the new york statute of limitations the court of appeals had no problem with that some of the cases that my friend has relied on like the vero against avis case which is a new york state case that they claim says that new york has a very harsh treatment of the approach to this actual imitation it says the opposite it says that there have been told when they were in equity requires for all these reasons we're not opposed to sort of fighting only the first question we're not opposed your honor's deciding the first question we think new york would adopt tolling we think that the that the reasons that we've given in the briefs are our car persuasive on that point we also think the second question is should also be decided in our favor we again  just a couple of points up principly to consider what the return address diction clause did all it said was that the court retained jurisdiction to entertain things that might be filed in the future it didn't impose any burden on the class representatives the nameplate us to actually return and do anything and as it happens if you look at it the case that mr massey cited j eight sixty three said precisely that that you know the coast rican plaintiffs have returned and maybe other some day other plaintiffs will seek to do it too but we know already that the panamanians settled down in panama when you know the nicaraguans overturned nobody else ever returned other than these coast rican plaintiffs who overwhelmingly settled all their claims and actually settled all their claims by two thousand and six and even though they are not business so i think your your adversary would say that remained open on the docket the it in fact was proceedings began again within five months after that determination motion and why wouldn't that person removed from those be entitled to rely on that because it was also denied the motion to reinstate was denied by february of one thousand nine hundred seven and it continued to they never again asked for it to be reinstated it was never reinstate by may of two thousand and three many years later they ultimately moved to set aside the f n c dismissal but what you have done is a seven and a half year period where it sat saying case closed and where they didn't ask for they didn't take any action with respect to it in order to move it along to try to return the case and i think you know if you look at the people who know this best r b a and the eastern district of louisiana affirmed by the fifth circuit said they never had to do it they never had a duty to do any of that stuff to go to the other countries to return here and the fact of the matter is that although there was a return to his addiction clause that he resumed jurisdiction over all it said was will resume jurisdiction as though nothing happened it didn't reinstate the class action and sure it may have been captured as a class action just like bridges was just like andrews was or was but the certification motion had been denied and from that point on you can't look eater's no other case and cites in delaware where you have a case where certification has