next case on the calendar is protein the black berry limited good morning your honors david brower for the of house the core of this appeal is the proper which is a p s l are you securities case there was no nd circuit guidance on how to apply federal rules of procedure three c three with respect to additional name plaintiff and addition to the lead plaintiff that has been pointed by the court what the statute says is in a class action whether or not the class has been certified the notice of appeal is sufficient if it names one person  to bring the appeal as representative of a class judge macmahon then found that the only qualified person to bring an appeal in a p s l are a case on behalf of the class is the court appointed we point this that has not been disputed by any party in this litigation there was also no issue that mr shaw when you do it sorry who are the  members of the class drugs mcmahon's found that as well as a result judgement and said that should have ended the inquiry and the palin's claim should have been sustained that's where described as the salient language about the appellate reappears in a footnote the reader has no idea how or why the issue was raised or whether the statement in the footnote itself a slender reed on which to hang the disposition of a appellant should not make half baked new arguments for the st and only time during oral argument which is the reason we provided the court with the audiotape of the oral argument which actually fills remaining in the case as named parties that they would not have had as class members to answers to that question your honor st of all it is caught it is very common practice and in fact was indorsed by this circuit and i have a suitcase to add additional plaintiffs to a complaint in case something goes wrong with the names lead plaintiffs and the class is jeopardized by not getting class or fixations so it's often the case plaintiffs are added to a class action consolidated complaint by golly i understand that i'm trying to ask what they get in other words let me make it more concrete suppose the lead plaintiffs had decided not to appeal this dismissal on behalf of the class says those they read the district court's dismissal opinions and that's fine with us it was not worth our time to pursue this could show and would have appealed in their own right as individual plaintiffs they could have done that but more importantly i believe as the statute is written since the class have not yet been certified they could appeal on behalf of the entire class because  that point the lead plaintiffs one of abandon the class and the class is entitle to protection even if the lead plaintiffs choose not to protect the class oh well suppose they didn't though excuse me suppose they just decided to go ahead on their own they  don't think the brief that they wrote is very good we have some additional arguments we'd like to make would they not have been entitled to file their own notice of appeal and their own brief in the case the answer is they could probably filed an amicus brief they would not have been able to represent the class and i want to ask you about representing the class they are individual plaintiffs right there are lots of other members of the class you know joan mr jones also is someone who could pursue their own course if they chose to yes so then what i'm what i'm puzzled about is they're not like just members of the class who ride on the coattails of  in this case aren't they entitled to go their own way well no no you are because they're consolidated under the lead plaintiff provisions they're supposed to be guided by the lead plaintiffs now there's a th circuit plaintiff has an interest that suddenly divergence from the lead plaintiffs they're entitled to raise that issue with the court so presumably that would be the rule everywhere that the th circuit that would presumably be the rule everywhere but here that didn't happen what's most important is it didn't have these these two plaintiffs had identical claims were added to the complaint by the lead plaintiffs as a security measure and i might add under cowper's versus the court the supreme court's recently said that's what you have to do in order to preserve your right as is not certified later on or you wish to opt out later on when the time comes to opt out because otherwise you could pass the scratches of riposte here we've way past the statute of repose so no member of the class can start their own case anymore and class is denied for instance the case is over as to the entire class unless you try to represent a class of people with a claim he didn't have the admitted he didn't have the pocket claim the california state was point as a result he could not have been a qualified representative of a class for the p and that's the meaning of the footnote the only way you can ferret that out is listening to judge carney's questioning of cones lawyer where it became clear post lawyer didn't even know if mr shoemaker the pla was of appeal here there's no question the lead plaintiffs missed it will i can show have exactly the same claims they didn't do anything differently they've taken no different positions and in fact showing you look i've always been as a pip for the class fact moved to be certified as class representative that's before because one court just to make sure i understand i think i do understand it but just to make sure that cohen court necessarily found that helen was qualified to bring the appeal as a representative of the class right that's they they undertook the appeal you're saying that there has to be a claim by claim assessment a qualification under this rule and that's how we should construe the sentence and what happened in clone what happened in clones is very clear there were two sets of claims there was a federal facility claim and there was this california paga claim mr cohn had problems with the physical plane because there was a mandatory arbitration clause and he was mandatory arbitration claim and that oral argument he said well he's represented he doesn't have that clinton himself but mr shoemaker who was a plaintiff below who didn't appeal he has that so by bringing this as a class notice of appeal he has appeal and the court said no no no someone who is qualified to represent the class for that claim has to appeal while mr crone used the magic language of on behalf of all of them some research awaited correctly he didn't have the claim and that's why the court then said we don't even have jurisdiction to consider the merits of mr collins arguments about the paga client because mr cohen doesn't have a pocket plan that's what happened and court basically said income you have to look to see if the person seeking to represent the class is qualified to do so mr kong was not because he didn't have the only life claim that could have been appealed and mr brower doing one more question do you see any distinction between the status of cho and luke as individual named plaintiffs and their status as members of the class in the following way is it possible that you gave some indication of why they wanted to be named plaintiffs in this case so that for example they would preserve their opt out rights and preserve their right to file an individual complaint if the class is not certified is it possible that they lose that by not appealing in their own names but could still be participants in the class action because the rule that you cite after all says that the cox and then zick and they can bring this appeal as qualified lead plaintiffs on behalf of the entire class are whatever else they are also members of the putative class so that if the class goes forward and either wins a trial any of these things ever go to trial or there's a settlement and which class members can put in their claim perhaps the appeal worked on behalf of cho and luke as class members but not necessarily insofar as they have individual separate rights i think the answer  judge lynch goes back to something more basic in order to be a class member you need to have a claim that's common to the other members of the class and either they have the claim or they don't the defendants and the court took a position their claims were extinguished because they didn't individually they weren't individually named in the notice of appeal so they don't as of now they don't have the claim that's what the subpoena was about i understand that i understand that but  i'm missing you about something else that may be relevant here as we try to parse out these these different rules and precedence there's there's a point to there being named in the complaint and they get certain rights that the other class members don't have and what i'm asking you is do they need to file their own appeal in order to preserve those rights assume we agree with you that they can't be precluded from filing a claim if the class succeeds based on the efforts of the lead plaintiffs they are in no different position than any other member of the class the stature rule twenty three would allow any member of the class to intervene and seek to be a class this idea about opting out i want to just say one moment to that the defendants have argued in the court seemed to agree and i'm not sure where the law came from on this that by virtue of being a name pla plaintiffs whether you have your own lawsuit another venue whether you have a lawsuit in the same venue you cannot opt out of the class until under rule twenty three to be the court orders an opt out the no to the class st got certified court orders and noticed informing people how and when and to properly opt out and then it becomes a formal up that this is been held in  go their own way that that's not the law the law is your member of the class until the court certifies class and then allows you and tell you how and if it was any other way it would just undermined the p s l are a completely with turn it on the control or shins up it on its head and it would ruin the orderly management of class actions by the courts because anybody could just start filing cases all over the them as cohen also expressly holds the fact that this is a punitive class action did not relieve cho in of the obligation to appeal dismissal of their individual claims cohen explains that rule three c three law case i think it's important to recognize that children who have had a choice at the outset of this case they wanted to be plaintiffs they were unsuccessful in that they could have at that point receded back into the putative unnamed class and a number of other people who wanted to be reprinted did exactly that but instead they chose a different route they chose as was their right to file their own individual claims and to represent themselves and they did that as mr brower explained because it benefited them they were able to avoid a potential statute of repose problem by pursuing those individual claims having made that choice and accepting the benefits of that choice along with it came certain obligations after judgment was entered against them as individuals as it was one of those obligations was to appeal that judgment if they wanted to prevent it from having raised to cause or effect they didn't do that and as cohen explains that is fatal to their ability to that to continue with those claims because they were not parties to the previous judgment the previous judgment of discord and cohen is not there's no mystery about cohen's holding it explains why it held what it did it's not just a footnote it's also section three of the opinion and it said that cohen there were basically cohen was litigating on that appeal as an individual and as a representative of the unnamed class members and he did he himself didn't have this california paga claim and the court said that shoemaker the only party who did have and he did not become an appellant in this court because he didn't join the notice of appeal that was filed only by cohen this was a holding because it was necessary for the to the court's decision not to decide upon the question and it was briefed to it didn't just pop up for the st time in oral argument it was in this very issue was teed up in the party's recess and cohen i think judge lynch is questions highlight i think the fundamental distinction between what it means to be an individual plaintiff litigating an individual claim and being an unnamed class member imagine there'd been no appeal after the after the district court dismissal in this case the st district court dismiss after that unnamed putative class members could have gone into court the next day and sued they wouldn't have been bound by that judgement but cox didn't think cho in english would have because there would have been a judgement with precludes the fact and as this court's decision in cohen explains that reflects the fundamental distinction between named plaintiffs who choose to litigate their individual claims and then end up with a judgement against those individual claims and do you agree with that i don't i think massey is actually entirely consistent with our approach here because massey looked at this question in two different steps the st question was were the other named plaintiffs other than massey before the court and for that this court that rd circuit i'm sorry look to rule three c one a and in particular it looked to the use of at all and said that was enough to bring in the other named plaintiffs just no parents had a clear there's no at all here then separately the court in massey looked to three c three big issue here is individual named plaintiffs so it is a three c one a question and this court reads that in connection with three c four and it requires there has to be affirmative evidence it has to be clear that the party in question intended to appeal and here when you look at the notice of appeal it's not just that show and weren't mentioned there's affirmative evidence that they additional counsel for the lead plaintiffs and the class that is important and significant because in the context of this case he had typically appeared in the district court as counsel for additional plaintiffs  it was a conspicuous change which is actually affirmative evidence of showing not having joined the appeal and i've also like to point out that there's no trap for the unwary here  depositions it seems that they didn't even know that the complaint had been dismissed let alone that they had a choice to make about whether to appeal or not to appeal was am i wrong about that you're absolutely right about that they had no idea that their their claims had been dismissed they had no idea there was an appeal they didn't know about it until years later before a deposition and that's consistent and their complaints their original complaint when they were filing their own class actions indicated alleged that between the two of them they lost about one hundred thousand dollars so if they were able to continue in this case even as class members you know either your side wins this case on summary judgment or likely there will be some settlement on the settlement will be in some gross amount for all of the shareholders and then individuals will put in their claims and get their pro rata share of whatever the case settles for except for these people who will be out of luck so let me ask you again the question that i asked mr brough are do you see any distinction between their abilities  their need to appeal separately and their rights as individual named plaintiffs and their rights to continue to participate as class members in a situation where rule three does seem to say that so long as one person appeals who has the right to represent the class or claims typical of the class that's good for everybody in the class i i actually i understand the your honour's question i don't see a distinction because before certification parties are completely authorised to litigate on their own behalf they are the master of their own individual claims they can settle them they can abandon them so you can imagine in this case if you know defendants have decided to settle with showing and showing who would have signed a release they would then not be members of a class if one were ever certified and they wouldn't be entitled to enjoy any class judgement or class settlement plaintiffs complained and allowed to show unruly to proceed with their own separate complaint and then they did not appeal a judgment which applied to both their case and the  punitive class case that would be that's essentially what happened here you're saying yes that is what happened here their individual claims were extinguished when judgment was entered against them and then they failed to appeal and that would bar them from enjoying enjoying the benefits of a class settlement or judgment down the road of course that that nd issue isn't actually before the court right now no classes even been certified here but well but we'd have to say one way or the other right whether what it is that they lose or what happened to them by not appealing well i think what you would say if you go there is that their claims were extinguished in the same way they would have been extinguished if they had settled in this court and that in weight watchers and other cases that before certification individual plaintiffs are welcome and allowed to settle their claims with defendants they would then they exited the class by their conduct and the same situation is here by analogy which is that they they abandoned their claims when judgment was entered against them and they didn't appeal and i would finally just point out a as a practical matter there is no trap for the unwary and as we note in footnote nine of our brief it is quite common in securities litigation like this when there are additional names plaintiffs for them to fee to file their own notices of appeal or joining in by name on the notice of appeal filed by  now final and it's what has raised you to kind of a fact not only with respect to the claims against black berry and the original set of defendants with respect to mr zipper scene who was obviously in privity with black berry he was a senior official he was the chief legal officer and back means got the race to the cause effect of the original judgment extends to him law the case gets you to the same place because there isn't a now final and unreviewable judgment in the district court as to chill an egg that there was there were no adequately alleged false statements by mr zipper scene and that there was no adequate allegation of the answer attributed to mr zipper scene and so statute of limitations and the court found on the reynolds vs mark that the information upon which the fraud was premised his scienter in particular was not could not have been found within the two years after the initial complaint was filed so i don't know what he's talking about some judgment as to mr zipper state mr zipper statement is not named in his agency capacity which is what all of the cases that they've cited talk about stand is named as a primary violator of section ten b of the exchange act unlike the other two named defendants who were named under section twenty as control people misters a person is not then they could have you read through the portion in section three conan left a little piece of it that what the court said was since but since cohn concedes he is claiming under paga are on time when we need not decide whether logic that you're advancing suggest that the schumacher was present in the appeal i guess you're saying he isn't present in the appeal because cohen couldn't bring the appeal on his behalf which aren't true here that's the distinction that's the distinction ok i understand your point so to drop by mr cohn didn't have a claim that he would be qualified to represent whereas here there was no question in the lead plaintiff had exactly the same claim and were qualified about et al i find to be one of the more absurd because code does make clear that the the phrase on behalf of all other similarly situated is the appropriate magical language if of course cone had had the claim on behalf of the people he was trying to represent that was similar situated which he did not claim but clearly using on behalf of all of similarly situated is not only as good as using  at out which the advisory committee talks about but it's better and it's been divorced by this court with respect to the change in my status from council for additional plainest showing that was to representing  counsel for the lead plaintiffs in fact you may remember guzzle i argued this appeal the black berry appeal before the nd circuit the reason was because only the lead plaintiffs appealed on behalf of the class for the claims the class was asserting so only they could be represented during the oral argument on behalf of the entire class which can show in dubai the play as judge mcmahon said members