good morning my name is scott pierce and i represent blue chip financial in may it please the court i thought perhaps i ought to start with the elephant in the room which is there were a couple of filings yesterday that certainly took us by surprise would the panel like me to address those issues are we here yeah that's what we want to hear ok well let me let me start with the background of how we got here and then all is there is there currently a dispute yes there is and the dispute is over what the dispute is that we have an order from a district court that invalidates the arbitration provision in the agreement that we use with every one of our customers across the entire country and the same group of lawyers bringing this case are bringing a whole bunch of other cases all over the country and that's a that's a independent legal issue the problem here is the district court that the effect of the district court order was to deny your motion to compel arbitration now there's nothing to compel arbitration  f the the underlying claims the complaint has been dismissed under rule forty one and it's with prejudice so none of those claims can come back  again so it doesn't appear that we could give any relief that would have acted as you would hear it so help me understand why this isn't mote ok well let me start with the factual premises of what your honor just said which is number one it is not circuit there is a stay order in the district court so the fact that the e c f system may have accepted the filing of a stipulation of dismissal to which by the way we were not a party does not necessarily mean and literally we received this motion at five pm yesterday the day before oral argument i have had very little time to look at this we've had thirteen hours that includes time for sleeping for getting here this morning and all of that ok so we have not had an opportunity to address those issues ordinarily we're entitled to ten days to respond to one of these motions and i think we should get the ten days and we should be able to fully brief it so you might argue that with the stay in the district court they had no authority to file anything that's correct that's correct and in addition we have a bunch of other arguments and i'm happy to go through them today if we do get to oral argument on the main appeal i would like to ask for some additional time since these issues were were not part of the main appeal but we can obviously cross that bridge when we get to it  o there are a bunch of reasons why we think that there is still a life dispute here and a number of of doctrines that apply so st of all the motion that was filed which literally i read on my phone ok to be clear i've not had time to evaluate these issues carefully but the motion focuses on one of several exceptions to the moon is doctrine and that exception is you know i'll call it the evades review doctrine it's used for example in cases where you know you'll have a county jail issue where there are very short sentences and there's an issue in the jail and you can't get to appellate review fast enough right and so there's a doctrine that even though the prisoner has already been released from jail and arguably there's no dispute anymore the court will still hear those issues i think the doctrine is capable of repetition but evading review but i mean it would have to i think and i agree with you that you should have the opportunity to respond to them the most but their claims are capable of repetition i don't agree with that and i'd like to explain try so st of all the cases discussing that doctrine and there are a ton of them and again we've had thirteen hours since this thing was filed say and i'm now quoting from one of them that there is a heavy burden of persuading the court that the challenge conduct cannot reasonably be expected to resume in the case that i'll say to you now it but there's a whole bunch of them is mccormick moment i've never seen whatever this releases that there they claim in their motion was filed there's no declaration attached unless i missed it on my phone we have no reason to believe that necessarily any of these facts that they've represented to us are true yes we know i got in the c f filing from the western district of washington indicating that that dismissal was filed as i indicated there's a question as to whether it's effective to actually dismiss the case or not number one number two in terms of there being you know this release that by the way we didn't negotiate that a day for two former co defendants of ours who we're in a big dispute with right now and who there will be a lot of litigation with in the future regarding these very issues because this is not just about this titus case which is a punitive class action there's a whole bunch of cases all over the country there were mediations going on of all of those cases collectively and what this is and i'll get to this in a minute because this is a different issue is there's a lot of ga gamesmanship going on trying to dismiss this appeal the night before oral argument i mean i should have been preparing for oral argument instead i'm reading cases about this doctrine but they've not met their very heavy burden of establishing this morning that this case is necessarily moot because we don't know i don't no what consideration was given for the release i haven't seen the language of the release i will tell you that i had a conversation with our mediator or he said hey i've got this m o you if you want to look at it and i said can i see it and he said oh i have to ask that the other parties and they wouldn't show it to me so i have i mean how is it that the case is moot when there's this release that allegedly is out there that i haven't seen that hasn't been supplied to the court to me they've not met that burden lots of fights between you and your co defendants but those aren't part of the issue in front of us i'm still hold waiting to find out what it is that we still should be doing judge i coulda wrote a decision last year called fritsch versus swift transportation company notes from you know reading p d f that were that were e mailed to me last night but i want to read a couple of quotes from that case because there is the collateral consequence doctrine which we think absolutely applies on all fours for this particular case for  reasons that identified earlier so the st part of the case is a case is not moot so long as the parties have a concrete interest however small in the outcome of the litigation that's quoting the supreme court's decision in campbell you walt which i am going to talk about in a minute because i think all the cases that led to campbell you walled raise some very important public policy questions regarding this idea of trying to you know pull the rug out at the last minute like this for tactical reasons and the case goes on to say if a party can demonstrate that a lower court's decision if allowed to stand may have collateral consequences adverse to its interests the party can avoid dismissal for mootness and that is exactly the situation here we have this terrible order from the district court that is said at the very end of their brief oh d and by the way you know that might they might be entitle to this so is that something that you potentially could do maybe i mean but there's no motion asking you to do that we haven't asked to do it the motion was filed at five o'clock yesterday we haven't had a chance to file an opposition i think at the moment there is still a live order that's horrible for our company that invalidates our arbitration provision that says it's an in for civil for these crazy reasons that are completely wrong and that order is still standing today so we should have this appeal because perhaps that that's a possible outcome perhaps instead of reversing the order perhaps the panel ends up vacating the order now that's not the decision that we would want but that is a possible outcome that's a reason why this appeal is not moot so the the next issue is a public policy issue relating to gamesmanship and appeals because ordinarily there are no ambushes  the th circuit that's limited to the trial court but that's clearly what's happened today there's a supreme court decision called erie v pap's am pap's is p a p apostrophe s capital a period capital and period it's one hundred and twenty supreme court manipulate the court's jurisdiction to insulate a favorable decision for review that's exactly what's going on here you know we're trying they have this favorable decision we want it reviewed we have a huge interest in getting that decision reviewed for a whole bunch of reasons including that we're in the middle of you know fighting all these class actions all over the country with the same group of lawyers with and by the way i would i would take the position that in class actions in modern class action practice today the plaintiffs counsel are our real parties in interest to those cases because the reality is the plaintiffs never have any involvement at all we never see them at mediations so intra day it they say you to no turvy you t same situation and the turkeys expressly carved out the collateral consequences doctrine it refers to a case called kirkland which was a collateral consequence doctoring case and says we're not ruling on that situation at all what happened in was the plaintiff brought a case the defendant moved for summary judgment the summary judgment motion was denied and then the plaintiff dismisses the case and the court said expressly in the kirk in the turd decision that essentially there was no change in circumstances as a result of all of that because everyone was back to the same situation they would have been in had the case never been filed but distinguish the kirkland case which is that the facts of that case are a little bit different but that was the there was an issue with a lawyer or a lawyer having issues about the order having an effect on his future practice or something like that but the argument was that that lawyer still had a right to challenge that order to basically to clear his name and the turk were completely distinguished that situation from our situation and here we have this terrible order from the western district of washington that i guarantee you will be cited elsewhere that we need to be able to challenge and if it turns out that vacating that decision is you know the right course of action which you know all argue it's not and again that's something that we would want to brief it it's still a live issue for that reason and that it's possible that your response to the motion could be the motion should be denied but in the alternative you should vacate the district court judgment if you know it's simply straight out deny the motion our position is that it should be reversed i mean your motion to dismiss your response to the motion right that your your response to the motion to dismiss could be the motion should be denied but if it's not tonight at the very least the district court order should be vacated i think that's possible obviously we're going to want to do some analysis over the next titus i want to apologize for the court about the last minute nature of the motion to dismiss and the voluntary dismissal but it reflects what has been happening over the last month in this case which is that the parties have been actively engaged in soma negotiation and it wasn't until this week that several of the parties reached a resolution that necessitated the filings yesterday i also want to make clear that i absolutely agree with  my my my posing counsel here that they should be allowed an operator i would request the court allow them an opportunity of course to respond to the motion because it was filed yesterday and you know we are also in the in the middle of doing additional research and to the extent this court believes there should be additional briefing we would of course file anything that would assist the court and attempting to ascertain what the right outcome is here the st two things the rd the rd point i think i just want to make is that as as as i've looked around to try to figure out what approach is best i do think vocative or is in all likelihood the right outcome here you know the supreme court's decision in months thing where and then it's later decision and bancorp i think have clarified  correct remedy for that for that for the consequence of for precisely the reason that you heard my colleague identify which is that there is this lower court decision and i agree that a prevailing party shouldn't be allowed to manipulate appellate review to preserve a lower court decision in their favor that isn't what's happening here and so if this court looks at it we would i think entirely be willing to accept what i think is the appropriate remedy which is for this court to vacate the lower court's bar to filing a rule forty one voluntary dismissal even if there is a stay in place and i think that this court on several occasions has explained why and it's because the act of filing the rule forty one dollars voluntary dismissal notice itself closes the file there is no court order that's required that's built into the rule itself and so it doesn't matter what what has happened or what is going to going to continue to happen in the district court the filing of the voluntary dismissal notice case can't pursue any of her claims again against any of the defendant's counsel i don't know what the stay order says i haven't read the stay order so i don't know what they were prohibits people from doing or not i mean does it say the case nobody can file anything what exactly does it say i don't know off the top my head and we can certainly lodge it with the court so the court can understand but my recollection is that it just stays the case pending the appeal i don't think it contains any specific language prohibiting any additional filing or or anything more than just a kind of generic a one or two sentence comment that the case has been stayed you know this this has come up in other contexts although it's rare that you would find only because a for instance a denial of a motion to dismiss doesn't qualify as a sufficient right to appeal unless there is some extraordinary reason and so as we've tried to look into it over the last twenty four hours we just haven't been able to find too many examples of of cases that reached the court in a posture like this where rule forty one has been filed but there are enough i think out there including within within this circuit that established the basic proposition that the plaintiff is the master of his or her complaint  notice of voluntary dismissal so long as the specific requirements have been met having said that your honor i think what we have done here was tried to provide the court multiple ways to get to the same result by filing a motion to dismiss the appeal is moot in this court which i think operates of its own effect and force and so regardless of of what specific significance the rule forty one voluntary dismissal notice my this court i think could grant the motion before it either as your honor suggested granted or deny it but order the lower court decision to be vacated but either way this court certainly has that authority when and if a case reaches it at some point and becomes moot and i think we are at that stage in this case because the plaintiff here has settled her claims has released all of the defendants and and has dismissed the case with prejudice there just is no live controversy left there's no adversity and so as a matter of basic settlement language or the actual finalized document which i think was was executed yesterday we would of course i think be happy to provide it to him so they can evaluate it but i representations to this court and to him  are clear i think which is that his client has been fully released under this settlement and by home released by the plaintiff in this case ms titus was a punitive action that complicate things not at this stage your honor right now all that all that is live in this case we're not even we're not even into the case at all beyond just a preliminary motion so it is her case in her individual capacity and it is she who is settling her claims and releasing the defendants and that's all that's before this court and all that this case is at this stage somebody else who would be within the punitive class could would be free to bring the claims well that there are there are other cases out there pending against this defendant to be sure not in this district and not by m miss titus herself has relinquished that right and that is what makes this case no longer a live case her claims are gone they're out and this defendant has no fear or can crn that they will be brought back up at all in this case or any other that does really concern about pick and choose doesn't and i mean she may not like the way this case is shaping up so we'll get rid of this plane it was really not a big player anyway and we'll go and proceed in the name of another plaintive why shouldn't we be concerned about that i don't deny your honor that it is a it could be a concern under certain circumstances but this decision in this case is being driven by the client who has of course a unilateral right to make a decision oh wait a minute you just told me that these negotiations going on with a lots of people somehow i don't think ms titus decided yesterday morning or maybe the day before now i don't want to be in a lawsuit anymore so let's drop the case so i don't suggest that it's driven by the concerns of an individual client i just doesn't ring true well i don't agree with your honor this client has particular interests that are driving her decisions about what reflects her best interests and the reason she agreed to enter into this settlement was because in her judgment that is what was best for her now whether there are other cases out there that will move forward or not doesn't affect at all what ms titus can or can't do in her case and she made a decision and two of the three defendants agreed to resolve her claims in the way that  satisfied all of them and i think for the court purposes at this stage that's all that's required to to move out the case now the concern i think you're identifying which i don't disagree is a is a legitimate concern is addressed by the remedy that i think is available when when a situation like this arises and that is to prevent any plaintiff from from avoiding the tip from from attempting to take the benefit of prevailing down below and and  insulating as as my colleague said this court from reviewing that decision but that but the solution to that problem is that is vodka tour and that is what the supreme court in munson were made clear that that's the price that one pays  for being in this situation agreeing to settle the case to the claims and move forward and release all the defendants from viability so there will be no benefit at all from having done this that lower court decision assuming this court agrees to vacate it will be struck and it won't it will contain it will not be cited by anyone because it won't exist anymore and i think that's unfortunate i mean i i'm here if we were prepared to defend this case but that's but that's not necessarily all there is going on here in the part that concerns me is that you may have approached this case you now know who's on the panel who may have decided you know this really isn't the panel i want this issue to be presented to so let's dump mistype this is claim and the next time maybe we're going to get somebody we think is more likely to rule in our favor why why shouldn't we have done if i this is the worst form of judge shopping well your honor i have a responsibility st and foremost to my client and it is the client who has made this decision to settle the case you know i hear your words but i used to practice law i practiced in this field i have some sense of what really drives the engine and it may be that miss titus is cited you know for me this just doesn't make sense to pursue but there's no indication to us that this is the only case being dismissed in fact there's every indication there are negotiations going on all over the country with mediation and so on and so forth so that dog really doesn't hunt with me that it's  driven by ms titus i don't believe that i am sensitive to the concern your honor but i can only represent to you today what i know to be true it is that she is the one who made the decision that is my st and you are kicking and screaming all the way i mean regardless  or you regardless if you object to her decision do you tell her this is a mistake your honor we've got a great argument here we want to argue it in front of this panel regardless of the answer the question is no regardless of my personal view about the about the outcome of this appeal on the merits it is her decision whether to settle the case and she made that decision and we find our way by or self without counsel over the objection of counsel you have really got to respect miss titus is views here because she is the only one that counts really i believe so your honor and that is that is precisely why other courts that have found you tell me anything to abate my concern about judge shopping i can all i can tell you is that you if you think the lower if if sitting we don't know this court's view on the ultimate merits of the question but the decision in all likelihood will be vacated which which is exactly what the defendant in this case know to defend in this case wanted something more  happy the way the case was shaping up hoping that it would get a decision from the th circuit that it could take elsewhere that's that's not that that's not a concrete interest in the way that article three understands it i'm not arguing with that i'm asking if you know but my concern about judge shopping and so far nothing you've said has done that it may be indeed it probably is the law drives to result but it it is what it is it is what it is your honor all i can tell you is that is that assuming this court  again we're still in the middle of researching we'll get the we'll get a briefing from it but i believe aka tor is the appropriate remedy want to case becomes moot in this posture the lower court decision will be struck and strips will be struck from the record and i think that is the outcome that am sensitive to the concerns your honor of course from my perspective before argument is better than after argument we do not know where the panel is and i think the where we ended up at the end of the day yesterday was the product of a four week long process with a mediator to get to a point where we were able to reach a resolution that was satisfactory to both sides i am sensitive to the potential optics of the way it looks but i also would just emphasize that we don't know at the time we reached a settlement at the time the motion to dismiss was filed where this panel was on this issue and what the outcome was like and in fact i think that uncertainty probably pushed the parties to a point of resolution i take it it's also your position given your view of the way rule forty one works and the fact that there was no answer we're sorry judgment  motion filed that you could have done the same thing even after all as i read the rule i think that's right i don't see anything in the rule that would preclude plaintiffs was the master of the complaint for making that decision  i think our effort to do it before was was in many ways to show that this is not an effort to manipulate the game it is instead an effort to reach a resolution that is in the best interest of our client and having done that there is nothing in front of this court to actually review and i think that is where we are and of course you know i hope the court will allow all the parties to fully brief it before making a decision ok so i have less than two minutes left so i will try to be very well i i have no choice but to be very british so let me just finish reading from the erie case which i think is particularly important given judge clifton's comments  court in addition to finding that courts have an interest in preventing litigants from attempting to manipulate the court's jurisdiction to insulate a favorable decision from irv you also said that that counsels against a finding of moodiness and clearly that's the situation here i indicated i wanted to talk about the campbell evolve case a bit the supreme court decision was decided very narrowly but if you look at the earlier decisions that percolate up through the courts i think the th circuit case what one of them i was involved in was called either chan or pac lab i'll state was my client in that case the defendants for a while were trying to do the reverse of what the plaintiffs have done here which is to make an offer of judgment to a proposed class representative an uncertified class action give them offer to give them everything they could possibly get on an individual basis in a punitive class action all the damages you can get injunctive relief attorneys fees whatever and then took the position and some courts agreed with this position there was a split in the circuits that went up to the supreme court that the case is moot because the defendants of essentially have surrendered and offered to give everything and that's what they're doing here they are saying well we give you everything you wanted we gave you a complete release like you know teresa titus can't sue again as if that's really relevant to us this isn't about teresa tight as this is about her counsel and all the cases that they're bringing against us on behalf of a whole bunch of different plaintiffs and we look forward to taking ms titus's deposition  connection with you know whatever happens in some of these other cases because i don't believe what counsel said one bit about her being the one who decided to to take this this course of action all right well the to the extent we have this we defer working on the opposition to the motion pending direction from the court as to the issues to be briefed or should we go ahead and do that and understand that there may be additional issues to be briefed later