rule twenty three have the federal rules of civil procedure and one on the rule sixty sixty b in particular with respect to rules sixty b i would just note that we submitted just yesterday supplemental authority from the fifth circuit which is yes music versus lakewood church and this reviews all of the prior case law and it's now clear that at least six if not seven other courts of review that recent authority we believe that if you have to reach the rule six the issue which you may not have to do that this circuit should join the six or seven other courts of appeals who have all concluded that court if you reach that issue however your honor as we stated in our brief you do not have to reach the rule six the issue if you find for us with respect to rule twenty three and so  first turn to that issue in my argument this morning with respect to rule twenty three a this is an extremely important issue on the rule twenty three and the specific issue is whether the koinange is of class mom members under a class action settlement agreements can be compromised and released in a rule forty one stipulation what we call the d stipulation of this missile without judicial review without class notice and without a court determination that the release of the class claims is in the best interests of the class we  that the plain language and text of rule twenty three eight and rule forty one make it clear that the court below was in error when it concluded that it could not be subject to such review specifically rule twenty three states as follows the least since two thousand and three the claims issues or defenses of a certified class may be settled voluntarily dismissed or compromised only with the court's approval only is a very powerful word there is no exception to that only so on the plain text of the rule this was we the first is the at c j itself the final consent judgment states that the court retained exclusive jurisdiction over this action to infection weighed in and force the terms of discipula nation  settlement agreement as amended and this is a claim for a breach of that settlement agreement when it was still in effect and what governs it as a contract is just a statute of limitations and as long as you have a claim within the statue of limitations there has to be jurisdiction to enforce that contract second or on or under the jake in some case which i know your honor is similar with the terms of this settlement agreement were embodied in the part of his final consent judgment what jake ins held in two thousand and seven since there are many jake ins cases as your on a knows is that even if we didn't have that language once it's incorporated into the judgment the courts always have ancillary jurisdiction to enforce their prior orders but here we have the added fact that the order itself retains the jurisdiction so our jurisdiction your honor is to enforce the terms of the white settlement agreement for prior breach aren't the claims that were settled in the stipulation of dismissal are unrelated to the white case i don't see the relationship the claims in the stipulation of dismissal that are an issue was claims that the red white settlement was in a settlement agreement originally seven year agreement was extended also really for almost nineteen years i think seventeen or eighteen years of injunctive relief that in two thousand claims are specifically only under the reggie white settlement agreement that is in fact what the claims are that were at issue in fact that when we filed below with the district court the court said you have release those claims under the reggie white settlement agreement and therefore you cannot bring them in that was that's why we're here is the court said it had no jurisdiction any longer to consider claims for breach of the reggie white settlement agreement because they had been released so we i think it's i don't think it's disputed that these are claims on that or reggie white settlement agreement that are it is you now going back to the plain text so rule twenty three clearly says only you must be court approval no reason for that is to protect the claims of absent class members it doesn't matter what the parties agree to on either side the whole purpose of twenty three  determination for the absent class members well then we will look to all forty one and see those will forty one see anything differently and rule forty one says when you can dismiss without a court order it starts with subject to rule twenty three so it's very clear that rule forty one was drafted with the idea that if you're dismissing a class claim you have to  rule twenty three that's just the plain text of both rules picking up on this morse federal practice summed up the the the answer as follows they said read together the tool rules mean this is what moore says that unlike an ordinary claim which may be voluntarily dismissed by mere notice to the court a class claim may not be dismissed or settled without approval of the court so what does the n say in response to that the n f l does not actually try to justify the court's decision below which was that it had no jurisdiction to consider this because that can't be justified in light of the final consent judgment and the decision in chakan it's so what the n f l does it advance his new arguments which we believe equally cannot justify the result below argument number one is that these are not class and the argument is well because the a claims a violation of a class action settlement agreement somehow and not the same as class claims under the rule well this is clearly not the case first of all if they were not class claims if we only dismissed individual claims then the court below made an error because all individual class members can now bring their claims and the court rule that i know jurisdiction to consider that so the whole premise has to be and the n f l is argument is the court has said it could be no class karim's anymore by the absent class members there was no individual who submitted the s o d it was submitted on behalf of the class that's why it went to the court is giving up the rights of the class members many of whom by the way do not belong to the union because they are retired players so there is not an identity between the union and the class claims this is very similar to the situation in the airline stewardesses case we cited in the seventh circuit where they said a union doesn't necessarily stand in the shoes is not even an adequate representative necessarily for the memories of a separate class because they could be different memberships and different interests and so these were clearly class claims we believe that were dismissed that's what we're serving but again we would win either way and reverse it because if their class claims they needed  makes is that a union is somehow special and has the ability to avoid rule twenty three here again we rely first on the ailing stewards and stewardesses class case which is the case we think is most point that says just like any other class representative and a union must comply with descriptions of rule twenty three you can't avoid the rule twenty three requirements just because you're a union especially when there's no identity of interest between the union and the class that said issue here so that can't work whether it's a union whether it's class council no matter who it is you must comply rule twenty three union a class council while i am precluded from revealing the settlement discussions below because we have a court order of confidentiality agreement was court order in mediation what i can assure the court that it was not complying with will twenty three with the court and ultimately it's the court that has to protect the absent class members and so to us it is a clear issue of the plain text of the rules that must be a fact that can be raised at this time since the class was was represented at that time and i guess more bluntly stated why weren't these arguments made at the time by class counts and how the players are so here to answer each of your questions your honor first of all they can't be any stoppel because the whole purpose of rule twenty three is to protect the interest of the absent class members who are not behind the court but before the court in every rule twenty three situation there is a class council presenting a deal and they a defendant presenting it could be a plaintiff's class but there are parties and what the rules says the court is the guardian of the absent class members so there can't be a stop to the class that's number one number two your honor says the burden with respect to seeking approval of this release which benefitted the n f l there's nothing in the stipulation dismissal that benefits the class was for the n f l for whatever reason they made a choice despite the clear language of the rule to not press the courts to go through the rule twenty three approval procedures maybe they thought the court would reject it maybe they thought the hearing wouldn't let that get through that's the whole purposes of rule twenty three so they have to bear the response a belittling nail for not having done that we insisted that it was presented to the court but the n f l never made a motion for further proceedings in the court never made any further proceedings at that point you're on or the absent class members never had the determination that they were entitled to and again if this was not a class release if this was just individuals if this  the union for example who was represented then all of the class members must now be free to proceed because there was nothing to bind them so either this was a class release in which the absent members must be protected or this was not a class release in which case they should be able to go forward anyway i also note your honor that there's an issue that the n f l may raise about a c b a release to or related to this your own i c i mean i had a couple of police questions and one of them is in the district court's opinion on the rule sixty be set as this court record conclu declining to reopen the matter achieves the appropriate balance to bring in litigation to close to satisfy me i can reprint the rule sixty b that sounds like a ruling on the merits and which brings an abuse of discretion hero or response that it believed it should follow the unpublished decision in the eighth circuit wood said it will sixty did employ because there was no order i do agree the court made that comment but the whole point of abuse of discretion is the court explains its reasoning next we had no submissions on the merits of the rule sixty motion in fact we asked for discovery to be able to present on the merits of the rule six the issue and the court said since it falderal sixty didn't issue which is whether we'll forty one at all applause when you're not dismissing the whole action because it was clear that the stipulation of dismissal he a preserve certain claims and we believe rule forty one by its terms only applies to had hoped to save five minutes rebuttal but i will be at the court's discretion when i get back up thank you thank you the morning of morning may please the court i'd like to start by taking a step back and noting the unique posture in which this case arises this is not a case of an absent class member challenging the actions of class representatives or class counsel nor is this a case of a union member asserting a breach of his union studio fair representation here the parties challenging the validity of agreements entered into by the union and class council voluntarily entered into and in exchange for which the players have received substantial consideration should be nullified they do so based on an extraordinary promise the procedures intended to prevent abuses by those in a arguing that their global bargain should be notified and its in its entirety they are not suggesting that consideration received by players over the last three years including an end to the lockout and literally billions of dollars in compensation benefits should be restored to the status quo and to ante instead appellants ask this court to peel off and avoid the principal consideration that they provided the release and covenant not to sue and to leave intact the rest of the comprehensive agreement the obligations of the n f l and its member clubs the principle justification that they offer for disturbing the finality of this proceeding is illusory the notion that the n f l the district court and the appellant's all abdicated their responsibilities by failing to invoke rule twenty three is not only wrong as a matter of law but it's also fundamentally inconsistent with the manner in which the parties result in numerous claims under the stipulation of settlement thousand and ten collusion claim and their t v revenue claim there was no rule twenty three notice regarding that aspect of the settlement agreement there were no rule twenty three hearings addressing resolution of those claims there were no rule twenty three findings about fairness or reasonable of reasonable cost of terms notably neither the union nor class counsel ever suggested to judge doty that those dismissals or numerous other compromises are settlements of claims that preceded them were invalid due to a lack of rule twenty three process nor did appellant file a notice of appeal or a petition to reopen seeking to resurrect those claims on the ground that they had been dismissed in violation of rule twenty three and appellants knew that it was not required that rule twenty three process was not required as to those complex of those claims just as it knows that just as it knew that rule twenty three process is not required for the claim at issue here but what's even more notable is  one not a single member of the union or a single member of the purported class has come forward to to challenge dismissal of those other claims and why the reason is that the releases the naacp and covenant not to sue are elements of a broader comprehensive labor settlement and this goes to the point judge the question the judge woman asked there was a comprehensive labor settlement reflected in the cup collector bargaining agreement that agreement established terms and condition permit decade in the n f l and it brought peace to an industry mired in litigation and discord the agreement was intended to bring to an end one era of labor relations and to open the door to another and it did just that during the three n seasons in which the agreement has been in place the players in the league have all flourished among other things billions of dollars have been paid to current and retired players in compensation and benefits appellants had not offered  return or tendered any of the consideration received just part of that comprehensive agreement that alone should be the end of the matter is the second circuit held in brown v city of south burlington avoiding a contract of relief requires the return of any  consideration received by the really sore the failure to return or offer to return such consideration in effect ratify the global agreement of the releases and covenant not to sue or part in any event what standard by what standard would the district court today determine three years into the agreement whether the comprehensive labor agreement including the releases and covenant not to sue was fair and reasonable and if the district court were to find that the agreement w not fair and reasonable what would the remedy would order the parties to return to the status quo ante a lockout and no collective bargaining agreement these are not idle rhetorical questions they are crucial to the resolution of this appeal because both the stipulation of dismissal and the c b a are labor agreements they are both agreements between a certified labor union the n f l p a animal  multi player barden group the n f l and its member clubs both agreements and the claims that those agreements released concern wages hours and other terms and conditions of employment they address mandatory subjects of collective bargaining as judge doty found at the outset of this proceeding more than twenty years ago the fact that they are labor agreements and the fact that the claims in the releases addressed terms and conditions of employment dictate the outcome here federal labor law bars judicial assessment of the fairness and reasonable us with terms and conditions of employment to which labor and management have agreed and make no mistake even with regard to the stipulation of dismissal that was signed by mr kessler as class council and on behalf of the union the union is a party to that agreement just like last council ones by the same token the union is a party to the sprit seating mr kessler introduced himself as counsel for the class but the put the union is an appellant here and the union is bound to stop by the collective bargaining agreement and stipulation of dismissal justice class council or federal labor law makes absolutely clear that in unionized industries terms and conditions of employment must be determined at the bargaining table supplemented by tools such as strikes and lockouts afforded by the labor laws but without substantive review of the agreed upon outcome by federal courts that principle was most recently articulated by the supreme court in the fourteen penn plaza case where the court held judicial no lawful cation of contractual concessions is contrary to one of the most fundamental policies  trump this basic principle of federal labor law the rules enabling act makes clear that by stating that the rules of civil procedure shall not or bridge or modify any substantive right the supreme court in ortiz and more recently in duke's apply that principle specifically to rule twenty three appellants simply do not engage on fourteen penn plaza on metropolitan notice and on insurance agents international on monaghan or on any of the other cases cited in our brief that confirm that not only that federal courts are barred from evaluating the reasonable to collectively bargain agreement but also that employees are bound by their union's waiver of non statutory rights and claims instead  seven circuits forty year old decision an airline stewards case and mr kessler refer to that case twice this morning but that case fits squarely within the narrow exception that at the time allowed judicial review of agreements resolving statutory claims of discrimination the claims in airline stewardess ledge discrimination under title seven not a breach of a collectively bargained agreement like that alleged here the seventh circuit stated twice once  page six forty two of the opinion once of page six forty of the opinion that its analysis would be fundamentally different if those statutory claims had instead arisen out of collectively bargained agreements thus even if airline stewards survived fourteen penn plaza and i suggest that it did not it would have no application here in short even if this court were to find that the claims appellant seek to bring here or claims of a certified class their arguments would fail because federal labor law preclude substantive review of both the c b s and the stipulation of dismissal but the claims that appellant seek to bring are not the claims of a certified class but a class was defined or even suggested the a petition to reopen no effective class member was identified no class representative was put forward the petition contains no allegations of commonality or typicality the hallmarks of a class action it doesn't even include a reference to rule twenty three but more important the stipulation of settlement agreement itself expressly provided in article thirteen section five the collusion claims could be asserted on behalf of a single player or a group of players without in vocation of a class action machinery indeed article eighteen article thirteen section eighteen of the stipulation of the soup elation and settlement agreement encourage the parties to negotiate to resolve such claims without even suggesting that their resolution would be subject to court approval and that's precisely what the parties did here is judge doty found in his initial order at page ten of the a dent i'm in other words the a released the claims it attempts to assert in the underlying action the n f l p a released the claims that it attempts to certain the underlying action that holding which recognized that the that the petition to reopen was futile in light of the stipulation of dismissal was plainly correct the stipulation of dismissal covers all claims known and unknown whether pending or not regarding the stipulation and settlement agreement  in that you're defending the opinion the district court's opinion and broader grounds are different grounds first of all do you believe the district court got it wrong got the answer right but for the wrong reasons and in how to explain what appear course you don't know what i'm thinking but how so how does it to sound like you're arguing differently than what the district court reason to hear your honor i think the district court did get it right and i think the key to its opinion is reflected in two separate sentences of it's opinion and on page ten the court of the first opinion it's the first opinion page ten in the first opinion as the court is concluding its  the third sentence from the end of the opinion the court writes in other words in other words the n f l p a released the claims that it attempts to assert in the underlying action and back on page seven of the same  in the court is discussing why it doesn't need to reach other grounds for rejecting the petition to reopen the court says because the n f l p a the n f l p a dismissed all claims pertaining to the underlying action those findings in my view are the key to the court's opinion they're clearly correct they lead inevitably to the conclusion that the petition to reopen would have been futile because the claims that the that the appellant sought to bring would have been would have been barred at the threshold all of that is a legal conclusion which we'd rude of you did you know what about what your response to my comment about it sounded to me like the district court may have ruled on the merits i think the court i think the be because you know it you can rule in one sentence but it's pretty fan of it but it your honor it's right on the money it's right on the mark the issue that the court is expected to determine in resolving whether to reopen a proceeding under rule sixty b is whether the interests and finale are outweighed by the the claim to do justice in effect and what we have here is the court saying in unambiguous terms the court concludes that the climbing to reopen the matter achieves the appropriate balance between bringing litigation to a close and satisfying the equitable principles of rule sixty b and when you look at the equitable principles of sixty the court is also free and the court was also free mr kessler said there were no submissions on this point that's not right there were submissions showing that the appellant's had failed to offer a legitimate ground for rule sixty b assertion that there had been fraud committed that standard is fraud on the fraud on the court fraud in the litigation product process not transactional fraud there's also evidence  the introduced in the record of the c b a release and the court was also free to consider when it was evaluating the equities of these issues whether the c v a release which also an independently board the claims t would make the would render a rule sixty five b order of relief futile so my view is your honor that the passage that you identified is squarely on point it's clearly justified by the record and it is a reflection of an exercise of discretion as to which this court is ordinarily in the ordinary circumstances would be two to which the court would or in the ordinary circumstances defer but the considerations for  here are even more compelling given the extent to which judge doty was responsible for this proceeding familiar with the parties and familiar with the issues if i want to add one this is kind of just a little sod point just for clarification you talk you've mentioned in your argument referred to rule sixty b relief with respect to a proceeding are you conceding that rule sixty be relief is conceivably available or is the appropriate rule  conceding that at all i think this court in an albeit unpublished opinions has gotten it right twice once the most recent example the panel on which judge wallman sat was only six years ago and as far as the  the majority rely i don't i don't disagree with the fact that the yes case came out the other way but i think that the fact that a respected judge like judge dolly jolly in a carefully written thoughtful opinion came out the same way that the a circuit has come out on this issue ought to offer some support for it hearing to the same standard i i believe that the circuit got it right in the two prior instances in which the the issue was raised and part of the reason for that aside from the plain language of the rule is the fact that is this case demonstrates that there are there are potentially so when a court reverses its own action its own judgment it's operating on a record with which it's familiar and in a context that is limited when a court overturns a stipulation of dismissal more often than not it's part of a broader settlement agreement and that's the that's the situation here and it's very difficult to go back and unwind the agreement months or even years later so it seems to me that the rule makers knew precisely what they were doing  drawing the line between judgments and orders on the one hand and stipulations or voluntary dismissals on the other and and the notion that a proceeding is is   a around object into a square hole it just didn't make any sense at all i want to i want to add one one additional point on the on the first issue the rule twenty three missal and by the c b a release but in addition i don't dispute that federal labor law itself provided the procedural safeguards that they claim were missing due to the absence of rule twenty three process and by that i mean free selection of the parties bargaining rights of the players bargaining representatives the unions duty a fair representation and associated remedies for its for its breach the quire meant of notice to the union the notice to the union members and the requirement that any collectively bargain agreement be submitted to the union membership ratification all of those safeguards were present here now i i want to go back and emphasize i see that my time is running out but i want to go back and emphasize one additional point appellants never did assert a proper ground for rule sixty b relief rule sixty b affords relief only for misconduct aimed directly  trial process not commercial or transactions or transactional misconduct of the con that appellant's alleged here and on that issue i would have to invite the court's attention to judge dean's opinion in the roger edwards case which makes clear that he minutes a little bit more time on sixty b it is not an abuse of discretion standard jurong in fact if you look at the opinion what happened is judge doty first ruled he would not allow discovery or on the fact the issues because since he concluded rule sixty did not apply he said it would be futile then he noted the parties have not submitted memorandum of  regarding the motion to reopen on the rule sixty be in other words that wasn't even argued to him and he just said but i'm denying that for the same reasons i denied the discovery in order to present the issue so he never reached the merits at all despite that sentence second your honor it is not he was he was just thinking out loud and i believe you're on a maybe he had a full hearing he was thinking he might do that some day but no briefs were presented no evidence no record no argument he just notes i'm ruling on the discovery motion and then said by the way oh now i will dismiss the rule sixty without briefs for the same reason as the discovery which is that rules sixty can a that your this recent cases persuasive and the position of the other circuits would be appropriate what an appropriate resolution here would be to simply  matter back yes or no district court yes sure it will get out without going to the other issue that's been argued in and give the district court an opportunity to take another look at this whole thing the court could do that you certainly should not comment on the merits of the rule sixty motion because if you remand them in that the court would consider that in the first instance below and take a factual record about that issue going to rule twenty three though which is important the c b a which is the labor peace does not mention the s o d mr levy when he said it's in the c b a an article three that is submitted in the record your honor it is not in the c b i an article three it doesn't appear it's not part of the consideration and his entire argument is premised on the notion that a union has the authority to compromise these claims without rule twenty three approval number one there's no case he can cite that has ever said that the only case that's considered this in this second seven circuit persuasively an airline stewardesses explains why that's not