the district court erred in awarding each member of the class twenty five hundred dollars apiece was our position that the district court as required by the statute was to award a daily penalty of somewhere between zero and one hundred  ten dollars a day and then by awarding twenty five hundred dollars per class member council before we get too far into the merits i think we need to discuss what jurisdiction the district courts final decision was entered june twenty third team and the appeal was filed in the spring of two thousand and fourteen it seems a little out of time your honor i believe that i did everything that i was supposed to do with the exception of filing and also appeal to protect my class but unfortunately filing of a timely notice of appeal is an event of jurisdictional significance well your honor i as as the court knows i filed a timely even which didn't happen after the rule fifty eight emotion was filed there was a status conference on the record which the transcript has been fine provided to the court wherein judge mckinney made it abundantly clear to both subject sounds like your feeling to an old doctrine that was called unique circumstances doctrine which was that if you would done everything needed to make a timely appeal as the district court described that you needed to do it then the appeal was timely no matter how the rules worked but unfortunately for you the supreme court overruled that doctrine in two thousand and seven in polls against russell and i'm aware that was briefed by the  jurisdictional memos and the class is not making an argument underneath that doctrine i did not cite the one case that referred to that doctrine all the cases cited in the jurisdictional memos and in both of the you know not one case a unique unique circumstances was cited to the cases i cited to said that the district court has the discretion as to when final judgment is entered and this situation it is apparent based upon the judge's words from a status conference and his actions thereafter that does make any decide to not in a final judgment because not only did he feel that he wouldn't do so until after attorney's fees across we're already only way to do that is the way provided in rule fifty eight as we know the district judge denied that motion well i don't know that he did you know i hope you realize the problem district judge announces his decision under rule for that's treated as a final judgment on hundred fifty days later whether the district judge wants that are not and the time to appeal is taking as one hundred fiftieth day is there any answer if the district judge does say there will be no final judgment to the matter of c s is addressed to the district judge is signaling that he's considering the question it sees as part and parcel of the judgement which perhaps you have some arguments since you were urging a common fund approach might have even modified his field damages who knows maybe he really wasn't finished but you didn't take  fifty eight estab that would have made it clear that this was all bundled up into one i guess i don't understand i mean i found the fifty eight emotion what do you mean i didn't take the steps and i deny though if the option of moving pursuant to that rule was over wasn't it well based upon what the court had abundantly made clear at the previous status conference if the judge's words fell in with the denial of the motion i mean in essence he was saying it was moot there is no reason to do it because there was no final judge of him in but he was wrong that's the problem that's why we end up thinking that this looks like a unique circumstances darkening case the judge may have believed that he didn't have to grant the rule fifty eight motion in order to extend the time to appeal but he was wrong he did have to grant that to affect the time for appeal ok well that's what brings me back to appellate rule for do you have an answer to the application of appellate rule for under which the judgment is treated  words how your position is consistent with that way but either that the district court had the discretion to manage his case and decide when final judgment was going to be entered us that's rule fifty eighty and that included making decisions about how the rule how the case was going to proceed under rule twenty three you know making you know the term any class administrator approving the notice is to go out also let them know about what was being asked for in terms of attorneys fees and costs so those rule twenty three responsibilities of the district court also took place after after the either liability or damages is one point eight or so million in damages it's decided it's appropriate because if it thinks if there's some indication that this was tentative you might be in a better position i did not get the i mean i don't you know as i sit here i had no reason to believe that we were going to be talking about reopening up whether the one point eight million was appropriate or not it was the correct amount in ah you understood that to be the judge's final word on damages correct and then just a couple weeks later we have a status conference and the judge comes up very specifically and says i am not entering final judgement so i took the judge at his word and followed him and understood that that was the reason why my travel fifty eight emotion had been denying everything he said was consistent so your understanding was that it was denied because it was premature in the sense that when it was it was because he was judge can say i've i'm justifying the rules rules don't apply in my court i'm not entering george once when the rules require on me nor emotions under these rules no one to judge starts talking like you'd better be appealing early an well i he didn't say anything like that all he says was you're not going to find a reason that i am going to deny your motion under this rule because i'm violating the rest of rule fifty eight by not entering a proper judgment and therefore i don't have to follow rule fifty eight he either that's pretty much what he said well you're on to this court asked me in the jurisdiction i was and i went ahead and repeated it in the breeze whether or not my rule fifty eighty motion could act as a nose appeal and i think it does i mean first off at the status conference after the rule fifty eight the motion had been filed the judge asked me mr well do you intend to appeal this case and i said yes it's on the record the judge knew about this the i knew about it everybody knew that we intended the appeal the case so all the case law everything that this court asked me to brief regarding whether or not my travel fifty eight emotion can be interpreted as a nos  appeal i believe you satisfied there is no the ball was not hidden here everybody knew that the class was appealing and they knew it in a timely fashion and so to the extent that there is a way around fouling an act about the your argument that some members of your class some of your clients in fact didn't get enough money it's seems to be their earth got too much money i'm sorry for too much money it's a very odd send this back for a redistribution of the damages the judge has ordered actually i'm not asking for it to be sent back i'm asking for this court to actually impose the correct we don't do that circuit courts have so i don't think in this situation least as i understand your argument you were making an argument that the one hundred ten dollar a day amount is the amount that should apply million properly balanced the culpability of the behavior in the prejudiced people in the class and the other factors i don't see how a court of appeals could do that without completely reopening the record i was simply asking this court to based upon the judge's facts which were not intending or erroneous to simply make the decision because the because the district court in fact violated the statute by not applying a circuit courts have in fact went ahead and inserted their own daily penalty in lieu of sending it back to the district court it's a very odd position though because the district court does justify you know the flat amount the statute allows such other releases the judge may think appropriate may be thought of the easier to administer and i suspect he probably did so i mean we could certainly lo off the extra recovery for the people who didn't have well people or the twenty two days or less delay people voice opposing the ones that we're talking about well but i mean we don't know we have no idea what the judge thought would be an appropriate daily penalty because in essence he gave more money to people who barely had their notices sent to him late than the people who never got a notice and it's exactly the opposite of what common sense would dictate that a judge would grant the people who never got a nose should be the ones who receive the highest amount of money they're the ones that could you know just as a matter of common sense have the most heart because they never received the notice versus somebody who received it only five days late and you remember harmed more than others some of them maybe were very healthy for that eighteen months and they really need maybe save the money that they would have had to spend on cobra premiums there was a lot going on and so i can certainly see why the judge might have thought that a flat fee specially given the bankruptcy context made some sense he was trying to wrap up this case we've been hanging around for a decade i don't disagree on it but you know the statute itself s a case said the end such as a relief can be things like equitable relief in order to pay somebody for the medical expenses that they had that they would have incurred that they should not have occurred if they were had a chance to pay the premiums and would have the would have the cobra insurance in place you know it's still sorting opponents point out you could take this one million eight hundred fifty two thousand five hundred look at the days of each of people in the class come up with daily amount of money and it would probably be within one hundred ten per day except that once again that's not what the judge's ruling reflects at all i mean if anything the judge said that somebody who is only five days late deserves a whole lot more money and they must be severely damaged versus somebody who never this way too long you should have done your thirty six deposition much closer to ten and i i've never heard of that i don't understand when you find find out that the defendant or any party has provided false information why does it matter when you find out that they knew it was false they should've supplemented that's what rule thirty seven says it's a rule twenty six says it wasn't during trial it was seven years before six years before we ever had decision in this case how is it premature i wasn't too l judge in this case believed that an appeal was not right that is evident from his order on november twenty sixth it was evident from the conference that we had that however was wrong the rules are very explicit the only final decision and therefore didn't come within the scope of appellate rules for a so because details such as class notice and administration remain to be determined and if it genuinely was administrative details in a class or are those kinds of administrative details necessary to find out what so i believe those administrative details are collateral issues you like believe attorneys because they're any authority i'm not aware i don't have any authority with respect to that particular issue iran so it's a big issue though because class actions as you know because of the interests of the unnamed members have special criteria for such things and to be thoroughly finished with the case might require one could imagine having those to complete and that was really my question to how confident are we that that june tw thirteen order really did wrap up everything the rest of the judge keeping open even the possibility of the damages award for other reasons there was nothing left to be decided after that order was issued other than issue of attorneys be there might not have been but what does he say in that order to make you think that essentially he's saying i am now the judge will judge fully  against my clients weigh the evidence pro and con and came up with a damaged calculation there was nothing left to be done other than fees and i but i don't have a copy of the order in front of me but i do believe at the end of the order the judge made some reference to the issue of attorney's fees and the fact that that would be drug arrest at a later point in time but attorneys fees have long been regarded the collateral matter which is separate and apart from we all know attorneys fees are under rule fifty eight if it's anywhere but we don't know about how and the only thing that would have stopped that would have been a timely motion post judgment motion such as one brought under appellate rule for one was brought so i was i do not rule twenty three c three which is about judgments and class actions which says whether or not favorable to the class the judgment must a it's a b want to be too close not here is a b three class b for any class certified under beasts three including specify or describe those to whom the rule twenty three c to notice was directed who have not requested exclusion and whom the court finds to be class members so that at least suggests that some of the class formalities do need to be reflected in the final judgment and i can address respect to who is a class member that was addressed in the judge's order there was a link the discussion of who is and who is not a class member in that order there's a doc about those two to rule twenty three  to notice was directed i do not believe the judge's order does so that's at least something we don't do we know did anybody opt out of this class no your honor no your honor there's actually a class notice that was sent out i believe in october of two thousand and seven to the individuals and since this is a class where we know who the members are i mean this isn't a administrative matters and that the district judge's decision the findings of fact in conclusions of law was a full adjudication on the merits of live the latine damages if it hadn't been a class action i don't think there's any doubt that that would be correct but it was a class act maybe would be just simultaneous memoranda you have certainly no objection that your honor on the penalty issue that we don't believe the district court abused its broad discretion in assessing a one point eight million dollar penalty against misty on unlike the class this young regards one point eight million dollars is a lot of money the district judges award was based on the court spending considerable time reviewing the evidence that had been submitted by the parties and reflected an amount that the district court explained serve the purpose of the penalty but was also proportionate to the injury if there is evidence in this case that the conduct issue was caused by miscommunications with visteon third parties in yes there were some there was a problem i think i think the court found this thing on its head had carried over it cumbersome notification system which it inherited from ford and did not properly manage that system over time that's where the district court found that visteon had had been at fault and he looked at some individual experiences and he said this really hurt some people he did he did there were five people for whom the court found that there was some evidence of prejudice and specifically the fact i saw his sampling he wasn't trying to look at all seven hundred odd or whatever it was people in the class correct with there was no evidence and there was five people out of a class of seven hundred forty one but there is no evidence that the other ninety nine percent of the class had any prejudice whatsoever there's absolutely no evidence provided one way or the other i mean the judge was trying to sample he was trying to be efficient i don't think you can assume they had nothing either but this is it this isn't a case where there was significant evidence of prejudice to the class as a whole or significant evidence of out of pocket losses to the class additionally the evidence is in the record is that visteon as soon as it discovered the magnitude of this issue immediately instituted a weekly auditing procedure to make sure that this would never happen again and it hasn't been instituted that procedure in two thousand and seven during the discovery process on its own accord and that was on the record that was prudent of it i would say sounds good idea we certainly believe this this gets to the point of the class definition and the court's decision to cut it off with the date when the complaint was filed as opposed to somewhat later date because i gather there are worse and people who experience problems after the filing you just said yourself it wasn't until into the litigation fixed it correct in that the court cut off the class as of the date but complaint was filed we had early on in the case proposed to the court that there be some certainty as as to when the the clashes and  had proposed the date the complaint was filed the class proposed a later date which was may thirty first two thousand and six which appeared to have been picked at random it's the court ultimately opted to select harvey which was the date the complaint was filed and the subsequent to that  flurry of actions first in the district court to move to a man to re insert those individuals whose post complaint filing individuals back into the class he did that four months four months after the court cut off the class that motion was denied six months after that almost a year after the class had been cut off as of the date of the filing the complaint class council filed a separate action here in chicago on behalf of a gentleman named richard thomas to represent that the interests never presented the company in that prize it does makes it puts the district judges decisions and some context if i'm right it looks to me as though actually what the class members will receive this fifty percent of their claims they're not going to receive twenty five hundred dollars you can get twelve fifty that is correct that is by operation of the approved bankruptcy again by operation of the plant and so that may factor into our of what the judge is doing well we believe that the judges penalty was appropriate and we believe that it was and we were not happy with the result obviously we wanted a lesser amount we had actually proposed at trial  the court awarded penalty zero dollars a day or alternatively awarded penalty of a dollar a day which would have come out to something along the lines of two hundred seventy eight thousand dollars the district court rejected both of those arguments and ultimately issued an award that constituted six times the amount the district had proposed a dollar a day six times doesn't mean it's reasonable one way or the other you need to stay out of course it's proposing zero you probably thought you didn't do anything wrong or at least taking that  position we had proposed here or alternatively a dollar a day based on what we felt was the evidence in the case the judge obviously disagree with that approach and went with a number which was significantly more than that the class is now coming in and saying it should be higher still and this court can't reverse simply because it may have acted differently even the district court it has to find that the district court's decision was fundamentally wrong the district court had discretion to award a zero dollar penalty awarding one point eight million dollars more is not fundamentally wrong under the and that's what the evidence is of course why do you take this young so long to produce these spreadsheets it didn't take a so long to produce the spreadsheets we can we issue we conducted a rolling production the culminated in june of two thousand and seven all of the spreadsheets were produced in june of two thousand and seven and they were produced with designations were this young had either indicated that they were compliant just felt that it complied with code for noncompliance meaning christiane felt didn't comply with the information which produced the class council was in spreadsheets that included the employee's name the date that the employee had been terminated the reason why they were terminated and whether or not a and actually should have it but it's really immaterial and it's immaterial because when we produced this information to class council in june of two thousand and seven the purpose for doing that was so that he could select class members he had the unfettered discretion to select whomever he wanted for the class and in fact he did that he picked people for the class who had waived had waived medical coverage of this young who received a timely kolker notice and significantly with respect to this particular issue he selected hundreds of people who had been designated as retiree and who had not applicable in the qualifying event column and i can point the court it's in the record docket two o five dash one page thirty seven two o five draft on page thirty seven this is a spreadsheet the next documents docket one ninety four dash two page one this is the class list the class council submitted to the court mr hagan minutes selected as a second class member on the list in place of a qualified event date class counsel has used his terminations date which is perfectly appropriate because under the statute under eleven twenty one us eleven sixty three subsection to determination is a qualifying event mr hagan is not alone there are other individuals which we've identified in our brief including the two women leslie hodges and elizabeth cohen both of whom are in the same category there are many many more the point being that class counsel had the ability to pick whomever he wanted to for the class when he received those spreadsheets and he and beth did he paid no attention whatsoever to how this young characterize that information and he had over a year in which to conduct discovery to question this beyond if he chose to do so he never did so that's why the court did not abuse its discretion in refusing at the eleventh hour to allow the class to reopen discovery contingent these new people into the case going back to the fee issue where the penalty issue in the judge's decision on page forty five of the judge's decision he finds the average number of days late the cobra notices had not been sent and he computes that at three hundred seventy six days we take the total penalty of twenty five hundred dollars and by the way that's page forty five and it's also can be found in the supplemental pendants page ninety two we take the total penalty of twenty five hundred dollars was allocated to the classroom divide that by three seventy six you get six dollars and sixty four cents which incidentally is the same computation we had in our brief so if there's an insistence upon a perdiem it is baked into the judge's decision we just don't believe that it's necessary that some class member should get six dollars and sixty four pierces who brought this case would get something on the lines on the lines of four hundred dollars or so money right that no claims distribution procedure has ever been created for this class there is no claims distribution procedure correct ok correct i mean that i thought was also relevant to the complaint about the people that you discovered from ford who in fact had gotten noticed because plaintiffs complain that they think that came along too late and yet my first reaction to that thought was that once the claims of ministration procedure gets underway it's routine in class actions and necessary for the claims administrator to make sure that each person receiving the distribution is a member of the class and the way the class was defined was as people who didn't get notice there's a clue to minister who was selected but that was done after the final very so been finally back it seems seems like a loose end hanging out there to me but as to the allocation with the judge did was he looked at other cases where courts had awarded in ranges between three hundred dollars and twenty seven thousand dollars per plaintive and made a decision based on the evidence as to what the appropriate statutes worded you can be person that had the statutory penalty in the amount of up to what's now one hundred ten dollars a day and in your discretion such other really meaningful which is at all just so much of  know it's not verbiage the whole thing is the penalty i mean the court has the discretion to award as part of the penalty a purty amount up to one hundred ten dollars per day and such other relief as it deems proper my point is that the district judge had the discretion and the authority to issue a penalty in this case there was an equivalent amount to the classmate so we don't find that that's an abuse of discretion in the slightest it was a remedy that the court explained was intended to punish christiane and one point eight million dollars far as i know this is the largest not dollar amount coburn notification case leeson i'm aware so it satisfactorily punished the on but at the same time it also covered any potential prejudice the class members may have incurred which we believe there was slight evidence but the court found some and it is your honor pointed out that that was a sample so there could have been more out there that we weren't aware of so for all these reasons and the reasons that we've discussed in our briefs we believe that the district judge is an opinion information first off and it's it was discussed in the briefing of the trial group in the spreadsheets of this young provided the same person would be on different spreadsheets and had different information so while i can't speak directly to the people that this in the cited two about whether they were more that whether that they were listened to different ways as retiring one place and fired is another in fact that that happened on a number occasions and it's in the record that there were certain people that were discussed that they you know had two different a qualifying event dates and and they end up being left out of the case because of that and that was discussed in the judge's june twenty fifth twenty thirty order that's something to call that false it would be another thing to call it sloppy and it's a third thing to say it's just inconsistent and had you taken a deposition right away you could have clarified it but the order that the judge stinson interviewed at the time the march fourteenth twenty seven order said you will provide this information and they didn't provide the qualifying the dates they didn't prove say with regard to cohen oh see the date reporter and you're saying to me to find that it was not sufficiently informative you could have followed up and said what is an amy and i did and that's briefed i had a cow i had a conversation with opposing counsel and he said these people retire their benefits continue i'm assuming that this court when when the members of this court retire your benefits will continue there are people out there that have their benefits continue when they retire they would not receive  maybe they retired maybe they didn't the fact of the matter is is that if when they did retire there were certain benefits mr weldon tenure if you don't have much time and we have to short questions when the court asked you are you going to and so it appears to me that you know that is part of the function of the district court and in can in in mystery a class action underneath the rule and so after the decision of attorney fees and costs are done and whether or not there were any objections raised by the class which we do know that in some class actions class members will get together and raise objections and higher suffer council which could obviously make things go on for quite a bit of time and i  aware that while it didn't happen in this case but it seems to me that you know the administration isn't done until after any objections raised by class members and the attorneys fees and costs are actually determined by the district court and that's just all i mean if this court were to deny everything at this point in time we would be asking the trustee to pay the class mystery of the money and just you know to put the money in that that may be backward