rule twenty three in creating and certifying what it referred to as a negotiation class it is not a class of persons who are in the words of rule twenty three dollars certified to sue or be sued it is strictly a court sanctioned organization that is authorized to negotiate on behalf of its members i'd like to start by talking about rule twenty representative parties on behalf of all members if certain specific criteria are met rule twenty three dollars he then goes on to identify the three specific types of class action case i'm just curious i m not specifically addressing this question of the standing but i'm i'm just curious why do you care if you don't have to negotiate with this group you can just sit out if you do negotiate with a group and you settle it then presumably you're happy with the reading that that went on so why do you care when we care for a number of reasons one your honor is that this certification dedicates important  of the resources to something that is ultimately not valid and will to hurt everybody's time and attention if you see them from another place you simply cannot participate and then your attention it's not diverted  the attention of the court is certainly diverted there are also findings that are made on on what are potentially very important substantive missions in this litigation with which we do have agreements he situation in this case yes he certainly did say that of course he cannot preclude other courts from paying attention to what he said and in fact i think that that statement is that statement and that in this is on page sixty seven of the court's order it said this order and the accompanying memorandum are not intended to serve as a precedent in support of or opposition to any motion for class certification of any time soon to any pursuit in any court on opioid related matters now that's a pretty remarkable statement for a federal court to say is it basically don't pay any nobody should ever pay any attention to what i say because nothing i have said supports the certification of a class in any other case and basically what the supreme what the district court was saying there was that it didn't believe that the the aspects of the of the order that he did issues certifying this negotiating class that you alluded to earlier that that were very harmful to i'm sorry your honor but what were the other aside from from certifying that you go shooting class in the process of doing so what were the findings of the court incidental or necessary to that certification well you consent to contend to be harmful well required to prove certain rico claims against us and we certainly take issue with those findings they were not based on any evidence here a record or or any other kind of record it was basically the court just reviewing the pleadings and purporting to make these determinations so i would i would cite that as an example of the crop but if you said that it was not going to be binding  says that the purpose of a class action is to allow the class representatives to sue and be sued on behalf of a class that's the one thing that this order withholds from them and that's a critical and we believe decisive point also class action was in conflict with the rules and if they said so because it left the class representatives disarmed in the negotiations because they could settle the class but not realistically threaten class  the defendants negotiation position was not reasonable the negotiation only class here is not materially different the class representatives go into these negotiations disarmed just as an m p but it's even worse here because the absent class members  had an opportunity to opt out of the final settlement after seeing it in all its terms we will not have that opportunity here because we are forced to make an opt out is asian based on very incomplete information before the negotiations even began in earnest but you could your client not right and they could have opted out right so yes so it seems unseemly not to be challenging something that you didn't take advantage of your opportunity to well i'll say two things about this makes absolutely clear that parties that class members who did not opt out can appeal from a class certification order they were the petitioners and i am come but with respect to why it's fair for us to do that why the supreme court was right to allow that and i am come you know we have the right to enjoy the benefits of a proper class action that is conducted in compliance with the rule and we think that this one doesn't we think that this one seriously disadvantage is absent class numbers in order to provide defendants strategic benefits that they demanded as a condition for engaging in serious negotiations and we just don't think that the district court has the power to eliminate opt out rights and create a substitute set of what it said were significant protections setting aside whether or not that's true or not it is just not the district court's job to rewrite the rules in a way that seemed to it better suited to achieving a settlement and that's a major major lesson from him cam which the district court here ignored  diverting resources from litigation and the like they don't dispute that this mechanism disarms the class representatives in the negotiations they don't dispute that it gives them these other benefits because it's indisputable because the supreme court recognized it in nam khem and i will say that this case is different than i am come in that the reason that there was a class settlement only class in that case is because the class didn't meet the requirements under rule twenty three  in class the only reason he gave for this invention was the need for the defendants to have a fixed class at the outset to negotiate with but that's accomplished all the time through litigation class so what's wrong with that the district court didn't give any reason at all and you could reverse on that green ground at all you can get hints in the opinion that the court was worried that if he tried to certify a litigant in class more defendants would object more vociferously but that can't possibly be a sufficient justification for creating a whole new form of class action litigation and if it is this court is going to see a lot more of these cases because what defendant isn't going to demand these concessions if didn't if simply demanding them is all it takes to get them a class council says this won't because common because the voting mechanism is ill suited for other kinds of litigation but there's nothing in the rules there's nothing in the case law there's nothing even in the concept of a negotiation class that requires those specific substitutes for an opt out right and i suppose th roll up its sleeves and develop a body of case law about when negotiation classes are permitted and what substitute requirements are are required but it can't hope it won't have any help from the language of the rules and it won't have the benefit of the very extensive  classes but assuming that was not if we were allowed an opt out right at the end i think that would be satisfied but that is simply to eliminate the negotiation class because that's all it really does  allowed all the technical details aside that's what both parents claim and they have two basic arguments as to why that is the st is that it is not in the text directly in any fashion and  called the stock device of settlement classes settlement classes were not in the rules until two thousand and eighty eight mr russell just said that and kemp found that settlement classes were in conflict with the rules that is absolutely false what am kemp found was that a settlement class was an appropriate mechanism under certain circumstances and then went on to say that the manageability promise rule twenty three dollars a three would not have to be satisfied there in fact this is an example of judicial inventiveness if you will because if these rules that if this practice of settlement classes had not been in the rules at all prior to  itself so how does how does the negotiation class work with regard to the rules well st of all the chamber of commerce mickey say that it is prohibited because the to cation language rule twenty three dollars b three incorporates settlement and therefore that's part of the overall rules language themselves that was rejected by this court in the litigation class or a summer class for purposes of this proceeding why did why not why and what was a why did he have to enter it to invent a new negotiation because there are thirty four thousand municipal and county entities in the united states and it is well established through judicial practice that the plaintiffs do better if they can offer global peace and the defendants and the problem with the settlement class is that you have counsel who go and negotiate a settlement and then class members are given a gun to take it or leave it basis you can either opt out core you're stuck with that this is a mechanism that would allow the class members to participate directly in the settlement process and redefine themselves in a way that maximizes their leverage piece of the defense this is the reason that this has started to percolate up through some state courts it's the reason that it was adopted by the american law institute in two thousand and three and that was the reason it's being used here it is a mechanism designed for an unusually in fact that would submit  are more likely to do better well that's what the class mechanism is for it's for the plaintiffs to be able to do better and so i don't take the lead and that's why again if the plaintiffs are able if it's structured in a way that more likely than not the plaintiffs will do better i was surprised that neither ms wenner nor missed took the the inverse of that and said that they were the problem with this is it set up to favor the plaintiffs or the defense so is is  that true or not is to empower the point this in the goshi a should and as a result it has the paradoxical effect of helping defendants because they know with whom they are negotiating at the time of settlement but ms winter does claim that it adversely affects or clients i don't we don't dispute that we are class counsel the reason we moved so this was because we thought it would be beneficial for the class but mr russell our representatives in the class counsel will be inclined to agree to a settlement and therefore the defendant can argue for a lower settlement  if your honour's referring to the so the conflict in the position of class council and class members that's an assertion that sweeps so broadly as to take in every class action every class  action is a species of what's called agency cos there are agents who may have divergence incentives d that's the reason that the power in this particular class is put in the hands of the class members themselves they have the voting with r t to determine whether or not to accept any settlement and whether to carry it forward to the court through the normal twenty three dollars eat process what's more neither of the appellant's mention that at the conclusion of the negotiation class process if there ever is one all the mechanisms of rule twenty three are still in place and all class members of protected through the courts and meeting to find that the settlement is fair adequate and reasonable and that the all the strictures of rule twenty three dollars have been met including the adequacy of representation which is a common feature of the challenge conclusion of any settlement pro but i want to go back to sort of the fundamentals here it because i'm so you can probably tell from the questions i'm troubled by this all of you are describing this as an example of judicial inventiveness and so oh i'm i'm asking you what what concern do you think we should or shouldn't have about inventiveness when by definition you're it meaning it's it's empowering the plaintiffs to me empowering the plaintiffs in negotiation means it's giving them an apology an advantage if that's right word it's giving them an advantage that they didn't have so isn't the proper role of a court to be creating a mechanism that empowers one side in the case as opposed to it going through the rule making process where the pros and cons powers lack of powers everything else is is debated by everybody that has an interest in class act judge making i think the question gets to the heart of why you have a class action i think every class action makes the plaintiffs more powerful as a group many courts have spoken about the fact or small value of clas actions where in the colorful words of judge posner only a lunatic would sue over thirty dollars in a consumer case so every case that is small for example is one that has absolutely no value unless joined together at through the class mechanism now the question then goes your question then goes to whether this fits within the processes that have been adopted by the rules draft powers the court to innovate to conduct the action and rule twenty three dollars d one b triple a small law says that the court snow dismayed be designed to give class members opportunity calls whether the representation is fair or inadequate and here's the critical language or otherwise come into the action so that is an open ended invitation to create mechanisms that draw class members into participation in the action what is your when your when your argument of twenty three d just swallow twenty three a and b absolutely not your honor at twenty three dollars a including the sewer be sued language just sets out the  simply the capacity of class actions to include where appropriate defend and class actions and in the fifty plus years of modern rule twenty three it's never been use or any other purpose whatsoever and neither appellant cites any case law on that what so rad all with regard to the twenty three a and b those sets up the types of class actions but it doesn't set up the mechanisms that can be used to further that and in particular i would direct the course attention to twenty three c four which was the basis of the certification of the controlled substances act claims and there is a language of rules is when appropriate which is broad discretionary language the martin case which is the leading case from this course interpret in rules twenty three dollars c four which neither appellant cited in its opening three and we contend thereby waived an resolution appears nowhere in rule twenty three dollars the court said the official resolution is the aim of the class action mechanism and so i don't think that this is a question that the rules committee did not address the particular mechanism i think that there is a mechanism for settlement classes this is a st step in that direction that the court is taking in order to allow more direct participation by the class members if you address the predominance requirement in for a b three class x and i'm having trouble understanding the items that are certified here and so the guidance for how that predominance works there is taken from the martin case and in the martin case the court district court had denied b three certification this court  rejected twenty three absolute view of that and then this court upheld seven different issue class terminations on the predominance of those questions under what it termed the broad view of twenty three  with regard to twenty three dollars b three each of the dissent each of the appellant says well there are individual issues there but this court again in march said that predominance is not a question of cite to these are uniquely situated under the leading supreme court authority bridge for class wide treatment the district court i'm sorry the martin court relied heavily on the supreme court's opinion in tyson foods which set out that you could have predominance even if there are multiple individual issues and the six cities appellants do not address tyson foods at all and the defendant address it only for an irrelevant secondary whites and not for the critical holding on for dominance so i would submit that that has that that is well within this court's reasoning on predominan at this time i would like to say just one word on the jurisdiction issue defendants in their reply brief said that that a merits handle does not have to address it because the option argument and said that the merits panel has to address the jurisdictional issue and that that is preserved throughout finally on the appellate standing for the only party that raised the sea for issue defendants again this is where the court's questions at the beginning were absolutely germinates i'm great finish my sentence if that that why do they care how are they harmed every case you were lied to whether it's city of cleveland  vanguard city of cleveland state of ohio all these cases maintain that you must be under compulsion and there must be consequences in order to maintain its appellate stand and they have neither thank you very much your r v thank that is permitted is not permitted under rule twenty three d or anywhere else thank you ira thank you honors i think it's notable the answers that we didn't hear today judge mckeague you asked why litigation class wasn't good enough i made the point in my opening you didn't get an answer that you're not going to find one and just records opinion and you didn't get one from class counsel today well did here was class counsel explaining why in their view it is better for plaintiffs essentially not to allow dissenters to opt out of class action settlements and that no doubt it is true that it is better for class counsel they get more fees doing that and is better for some of the members of the class but certainly it is not better for the class members who reached the reasonable determination that this particular settlement is not in their best interest which is something that's particularly important to preserve in a case like this when the absent class members are governmental entities that have an obligation to protect the interests of their constituents regardless of what other jurisdictions may think best suits their the other thing i would point out is that at best this argument shows that there is a reasonable debate about the mix of pros and cons and benefits and cost the plaintiffs absent class members and defendants through the creation of this new procedure but this is exactly the kind of thing that the district court and this court with respect are not as well suited to address as the rules committee process where in deciding a question of this magnitude the committee would hear from hundreds of practitioners judges scholars and would debate  the pros and cons of this or the course of months or even years we're going to have debated this for all of half an hour this morning this is simply not the kind of thing that should be done through a case by case process you know offhand whether the rules committee has been presented with a question of negotiation classes are there any proposed rules changes or i'm uncertain traditions and i'm sorry i don't know the answer to that question i certainly haven't heard of any in the representatives certainly haven't cited any in their brief but this would be surprising if if they had because this is the sort of the thing they do all the time they regularly get people coming in and saying look a different set of procedures would provide better production for planters or bell or balance of interests and they are the ones who are best suited to address those kinds of questions and then let me end with the text because the one thing i didn't hear was mr acker off explain why this class is entitle to sue or be suit on behalf of the absent class members he hinted that maybe we just should think that it doesn't mean anything and he made arguments about why rule twenty three doesn't have to be complied with in this case because you can sort of find or see for some provision of the i would say you know if this court holds the that holds compliance rule twenty three dollars a is not actually mandatory for every class action and at the same time authorizes negotiating classes this court will have created a sea change in class thank you thank you thank you all for your argument the case is a fascinating case and it will be submitted and you may disconnect from me thank you thank you thank you your honor