difficulty seeing how we do have jurisdiction over this interlocutory matter because if there is a judgment call to mostly against your car have assuming you don't prevail on the merits these are all issues that could be brought up on appeal after final judgement so i have difficulty seeing why we have touristic show runner several points in response to that number one notices are restraints of free speech or they're compelled speech that's i mean sort of inherent in anything related to acquire some this notice don't send that notice clarify this don't do that not that that's true in every single case isn't it and yet we regularly say that those kinds of things are not immediately appeal of several points your honor number one the notices that issue here were said pre occasion number two the individuals who accepted the agreements also have rights here safely has rights with respect to the acceptance of those agreements safelight is stopped by this court's order from reputation from the individuals but the point of it is in a settlement agreement like those from both sides certainty that's the certainty that safe play holes with these agreements and the certainty that the individuals have and accepting the terms of the agreement ever inform the court that if the merits were decided adverse to you you were going to attempt to settle with individual potential individual class members as you did people who had been paid pursuant to this performance pay plan and decided rather than risk and have verse finding or to gain certainty with respect to this litigation that we would offer a settlement which we deem to be a  reasonable if not but counsel you agreed as churchward was pointing out the parties agree to what to me is a very unusual and somewhat common procedure which is to say we have a class action complaint and it will we'll deal with liability first because it's pretty straightforward matter to look at the merits first and then we'll determine whether only the named pointis can go forward or whether there will be a klausen if so what the definition of the classes that was as i understood the agreement and and you lost on the merits right largely martial law what what we lost you out was a finding by the court which would have found us in any trial on the merits as to what this performance of perth performance painted play and was the court ruled that it was a peace plan a piece for a plan the court did not rule that there was any liability in this case attended to that plan what the court said was there could be well but more to do more to the point though you are you agreed to a two step procedure right the court's definition of the performance pay plan and issue a definition with which safelight disagreed with which safelight intended to appeal should there be an adverse ruling on the merits safelight to this day  and her concern was that there was only one sided information but nevertheless one sided information that indicated this is about ten percent right of of the of the of at least plaintiff's estimate of damages so i'm just waiting to hear your response about why it was individuals that it should have had a contract rights if they wish to revoke their acceptance of this agreement so a fight isn't joined from enforcing the terms of these agreements under standard law or now for now for now  agreements are not members of a class and this is ultimately determine in which case they would be permissible in any event for her because you alternately went on the merits of your claim in that event of their final judgment can it seems to me deal with this problem and if not these are issues that can be raised on an appeal from a final judgment honor in the meantime safelight and these and the jewels are enjoying from having what their free exercise of acceptance of this offer me the can we talk about for that individuals because you keep lumping them in there they did did they have to give the money back they they would when they were on well i mean the status quo at the moment is that a large majority spokes cashed the text and they accepted the deal that's true and so how are their rights how are their rights infringed in the meantime well if the case proceeds as the district court has ordered the rights of say flames threaten force those agreements are enjoying right but you keep saying that that the individuals who receive the offer are also somehow prejudice i understand safelights argument i don't understand the other people who cashed the checks how they're appended will wish to challenge the revocation of their agreement they could do so under any contract theory if the individual does not want to revoke his or her acceptance of the agreement then the the court order presumes that to be a fact ok so the so i think we're on the same page i don't think we misunderstand anything about the facts and so that brings us back to the clatter order issue why is this substantive rights of the individuals who entered into privity of contract with each other and it can't be litigated at the end of the day because it cannot be litigated the end of the day because again it would require the litigation of agreements that have already been reached with people who may not want those agreements to be litigated in the first place if these individuals want their agreements to be enforced they have the they have the right to i know and i don't i don't either but it is your time and i'm waiting for an answer that doesn't strike me as as as a non sequitur i don't understand i understand safe light wants these agreements in force now but i really don't understand how the litigants are right  to the judge was concerned that at least one person so i thought it was a paycheck didn't didn't recognize this at all and i read the briefing carefully and you have indicated where that a reasonable person you think would have been on notice at that but if the judge had a real concern why was her order improper a concern for me no evidence before the district court that anyone had additional information been provided that anyone would have changed their mind about accepting the settlements offered by safely there's no evidence whatsoever concern was people weren't told because the complaint wasn't attached and people weren't told about the ruling that judge graber mentioned where at least what we're saying largely you took a fall on first amendment meant it complained a discussion of the court's ruling on a motion for summary judgment and the position of safelight on classification would have made what was a clear and succinct communication less clear less assumed more mottled i do respect i don't think that even a lot of lawyers understand what class certification motions and tail what they don't entail what the import of those are decisions on motion for summary judgment are inherently a legal doctrine that laypeople are not going to understand they contain legal conclusions and what was safe like to do in that case the piece really that was found to exist with with respect place communication as it is we provided these individuals around or with contact information for the plaintiff's counsel access to website information if they wished it and we told them at least three times agreement they should seek legal counsel what's your response to the concern that the judge thought that things were going to proceed in an orderly fashion and that your client a different course i don't disagree with the court's conclusion your honor i think would what happened in light of what occurred in the signing by nine hundred fifty four people was that the litigation got streamlined you have entry a final judgment and in answer to your honor's question judge kristen about how if at all the class members have been harmed by this court deferring those merits questions the answer is they're not and they're not because they've settlements or what they are that's that's right they took the risk when they undertook the strategy of sending out these individual settlements agreements with live checks so that is what it is and could be a loss to them now the court i think what they're really mean in a sense what they're complaining about is the inability to be continued to to do that same delusional i think they're complaining about inconvenience i think they're complaining about the fact that they have to continue litigating this case in light of the district court's orders and validating those individual settlement agreements now importantly all the district court's order really did is go to the size of the class the class will either be twelve hundred plus people if the court's orders are upheld or it will be two to three hundred people if the court's orders are reversed so in any of that we have a class action here that will will continue to be litigated was not just inconvenience for them it's  significant additional exposure to liability right well that's true but the key issue in the case is bennett judy kay did against them and they didn't oppose certification of six of the seven certified classes  so the case needs to go forward what else would they have had to include in their packet that they sent out the judge was concerned that the complaint wasn't included but they did include contact information for plaintiff's counsel right that's right and we're not quarreling about what they did include we're quarreling about what they didn't include they leave out what they left out was a true statement of the current status of the case they didn't inform class members about the key rulings on s judgment the central one of which went against safelight as to this piece rate compensation plan and they didn't inform the class members that they didn't oppose class certification such concern is whether that class members putative class members were misled  his responses it's really hard to do that in a way that isn't even more misleading what is your response to that i think that's solely your honor the the key principle that underlies this entire body of law is that if you're going to tender settlement agreements to abs class members you have got to set forth sufficient information for those class members to be able to make a meaningful assessment so your in your view they should or so you have to we have so far lost our arguments that we don't owe more money in the court of their this is a piece rate and therefore such and such is owed and we think that's wrong and we intend to appeal it but in the meantime so there is some risk you know both  but the point of several good ruling but it might not stand up later so they would have to include something like that and you yes i think we need to give a neutral statement as to the proceedings that occurred in the litigation to date and that included th already promised to appeal that final judgment so it will come into court and say look these individual settlement agreements were valid they should be given full force and effect and we should not have to pay a cent more to these class members that we have already paid now is there anything that could be argued now on appeal that would not be capable of our argument after final judgment and retains the ability to adjudicate the merits of the district court's orders at that time so in light of the fact we don't think that there is jurisdiction here i wanted to get back to the point that i think the court has precisely identified what happened here which is that safely from the very beginning chose to litigate this case in an extremely unusual way it put the minutes you did to that was a stipulation right through ok true but it's extremely essentially concede class certification they do oppose certification of one class but not the remaining six so now what is safe like to do is put itself in a bind and what does it do well it decides to issue these settlement agreements an attempt to move this case or at least whittle down this class and it doesn't disclose that highly probative information that class members needed to know to make the fair assessment that the law entitles them to be able to make about whether to stay in the class and keep litigating their claims or to accept safelight settlement offer that they can't point to a single case where any court has greenlighted that kind of behavior by a defendant not one in this court shouldn't be the first court to do it it shouldn't one because of the fundamental due process concerns that underlie class litigation and second because that kind of decision will just incentivize this kind of gamesmanship you're going to get defendants saying let's take a shot at the merits and if that doesn't work then we'll take our shot at class or and if that doesn't work well no worries because now we can send out these settlement agreements and guess what we don't even have to tell the class all these rulings that went against us or that we conceded to only if they sent out them notices certification and that's his that's not the point he's made you had to arm them with sufficient information for them to make an informed decision so i was it would just just humor me why wasn't it sufficient for them to say there's this ongoing litigation here's plaintiff's council's phone number you can call if you want more information this other pivotal juncture in the case gosh i wonder why they're sending me a live check in the mail what's going on here and it doesn't take much imagination to think well maybe they're sending this to me because they're trying to buy me off on the cheap i'm curious how did you how did you your the corps learn about this i was not truck out so my understanding is that an absent class member contacted plaintiffs trial counsel because he learned about it i believe on the about the same day or very shortly after these went out in the mail on august twenty first of last i also just like to briefly address the issue safelight keeps arguing that somehow it's free speech rights have been restricted here until class certification until that order was entered there were no prior orders by the district court preventing it from communicating with the class or curtailing those communications and there are no free speech rights at stake here this is not the eight circuits decision and great rivers where the defendant was being compelled to publish in its own newsletter an opinion piece by the plaintiff criticizing the defendant's conduct nor is it the third circuit's case in the especially this school litigation where a nonparty lobbying arm of the defendant was being forced to communicate certain information about the case every time it does was engaged in its lobbying efforts in which a class member might have been part of the audience so that's a complete red herring that i think this courts to simply ignore at the end of the day this was these were orders well within the district court's discretion and it was certainly within the district court's authority to say not on my watch you're not going to engage in these kinds of misleading tactics when i have a duty to for you right and it is a significant one it is ok and so the point is the reason this is that every judge appears expressed concern about misleading is that the people were sent to check in the mail and they weren't told that their strongest response i heard it was what was going on that the district court could have ordered a less drastic it could have but this is an abuse of discretion standard and it's not that sort of the remedy that she says it doesn't go to whether the character of the packet was fundamentally did misleading i don't hear you responding your i don't believe the character of the packet was fundamentally misleading i think there was sufficient information in the package to provide the putative class members with a meaningful choice to make and in the invalidation of this wholesale whole