morning your honour's this audible yes it's working good don't fall for petitioner lodge attack article three opens the federal courts to resolve the disputes of citizens who exercise their right under the petition clause not to prolong those disputes arbitrarily but that's what they standing order provisions at issue here do they force litigation and prohibit conciliation and that's why those restrictions on conducting any discussions and completing a class settlement before completing and that class an adversary class certification proceeding why those have to be vacated that order does two things it can't lawfully do one for hits all settlement of a class action where the certification occurs only during the rule twenty three dollars eat approval process which is something we're all familiar with from the am kim case and long before it too to the current direct appeal that's right your honor ok so why is the standing order clearly romania's it is clearly erroneous because it is flatly a key factor in the baumann factors that you have yes i don't think the others are meaningfully disputed here other than other than clear or though i'm happy to address the affair it is clearly erroneous because like the gag order struck down in versus bernard the two components here are flatly inconsistent with the policies of rule twenty three a rule twenty three easy is now explicit explicitly permits pre certified cation settlements it lays out the factors in the analysis further elaborated on in the advisory committee no it's but the supreme court has recognized for a very long time that even the terser version of rule twenty three permitted  pre certified cation settlement so long as the class met the different standards of classification that apply in the solomon context and those standards are you know favor pre certified cation settlement as this court  held and found in the hyundai case on bonk recently the differences in the standards can be quite substantial both in effort and in the types of classes that can be certified big issue three no rule twenty three other provisions of rule twenty three give the district court quite a bit of discretion on how to manage a class action they do indeed they do indeed your honor the district court discretion to manage the class action but it does not have it does not have discretion to manage a class action in a way that contradicts the express policies when he said they understand his standing order it's that there no confirmation or appointment of interim council which the call only interim class council which the court will only do in the case of bankruptcy it did not address any of the usual issues one looks at and appointing interim class council it did not find that this that and one of his representatives i believe us here today to address any questions that are spleen of specific didn't find that there is somehow there is something wrong with them or something that would not permit them through to carry the water of the class it said any collusion and rule twenty three as the supreme court has recognized decades ago is designed to address that specifically it tells you the rule twenty three either just record rules decades of precedent tell you have in the past rubber stamps elements that it shouldn't have they shouldn't have not this district worker i think i may have misstated the district's primary concern collusion was there but the other aspect of it was the fact that the possibility that the class mind not be settled allows for a discount in the way the settlement might be negotiated again your honor it's not at all well it is clear from rule twenty three s been clear for a long time from the advisory committee no it says quite clearly that one of the factors that may be considered is whether and to what extent a class would be certified under the stricter litigation standard the visor camino physics zach leave that now one rule twenty three you not only as expressed by the supreme court interpreted by the supreme court but now in its very text says here's how you address those those factors the court is not it yet at liberty to say absolutely no one except in case of bankruptcy or perhaps an injunction things that never seem to arise in real life it can even discuss settlement much less present a settlement that rule twenty three says it's able to present serious you can how complainants council talk settlement on behalf of  of a class you know realistically when they don't even really the council doesn't represent the class well the the supreme court has found no problem with that nor did the on bond court in this on long court and decide in the end i clase case and role twenty three e except that you can negotiate a settlement might not be approved might not be approved the concerns of district court addressed but you're saying there's a you have a st amendment right to discuss settlement with plaintiffs we do have a  ask it again ask for how many just record than even look at the relevant standards it just said this is they going bankrupt no no they're not that's all the district court did rule twenty three dollars e contemplates that yes interim class council is s in every other court room that i'm aware of in this country allowed to negotiate a settlement of the settlements no good if class councils no good if the class rep is no good if the relief is no good if they releases overbroad of the case after case is about there's nothing wrong with the court's concerns if it's concerned about collusion it's actually page two of its standing order the court to support standing order says what you have to file to satisfy the court about how to proceed it's a pretty good  list and there's no reason it can't be filed under all twenty three dollars after a solvent rather than at the adversary stage in fact the standing orders you somewhat contradictorily sets out what you have to file in a proposed settlement and then says you can't even talk about it  you know he sets out things like you have to swear under oath all the possible flaws with your class with your plaintiff via any relations with counsel you're talking about the northern district general or you know i'm talking about judge also says specific standing order  an appendix to he sets out things that he can ask and other judges do ask and i'm sure a judge also past when you have an actual settlement before him in order to probe the adequacy it's one of the concerns he raises he raises the concern that's also in the federal rules the local rules about the fit between the pleaded claims and the release right i mean there's also again this is a valid concern we don't dispute that it's a valid concern that that sometimes you have a you have a settlement that pays a lot of lawyers not much to the class and releases a whole bunch of claims that you know very little relation to the complaint but give give a defendant a whole lot of coverage but that's not what we're complaint and then be bond in litigation if it doesn't settle i mean that that that's just not how that's not how rule twenty three economy place that's working and it's not how it does work and there's nothing as i say there's nothing wrong with discounting the possibility of of class certification failing the is right that that we don't even have to talk talk with one of the right to talk settlement then you know god help us if we went into the report mediator here and then got a side signed a judge also what happens then the whole mediation program set up the  cases like this and it does so pretty well as does the mediation program here those are apparently wrong headed as well but all twenty three he tells you the one thing if there were no guidance if there were no guidance and precedent let alone the text of the role but there is guidance here good morning your honor my name is peter busch amy i'm here on behalf of the district court the district court in this case has provided for the order and the manner in which the parties in the court should proceed in addressing this punitive class was eight days after the court stayed the action because defendant logic made its filed its mandamus petition in this court and logic tech wants to tell the district court how it should handle class action it's for this district court is not this district court is not telling other district courts how to handle a class actions before those this year courts it's handling that this the action before it logic tech doesn't like the way it's doing we've heard many references well you know i never i've never seen an order quite like this one well there have been other orders entered by this district court and other class actions that are quite similar but let me just go back to rule twenty three we've heard a lot about that and you order does appear to be inconsistent with the whole scheme under rule twenty three dollars well i wouldn't i wouldn't agree with that you ronna rule twenty three dollars d gives the court substantial describe as a rule twenty three dollars also promotes settlement that's true your honor and there's no there's no bar to settlement here once we know whether this case can proceed as a class action and if so on behalf of what class and what claims and with what class representative and with in its other submissions including the submission to this court take a look at pages ten and eleven for example of their reply submission in this court they don't accept the class that the plaintiff has pled and it's complaint they disagree they say the case should not proceed as a placer action yet they want to settle on behalf of some unknown class the court decided that it's better to determine whether this case is properly proceeding as a class action on behalf of which class and which claims and with which counsel and then they can negotiate away but they will not be negotiating with the issue of whether the case can proceed as a class action hanging over their head as an unresolved issue it seems is the rule twenty three in our case law all contemplate that it is proper for parties to negotiate a settlement  significant added costs on both par on both sides well your honor i am not aware of the significance of the cost there's been no motion there's been no discussion of what the class should be all the pla has done is to put in a pleading that says we want to represent a nationwide class and the defendant has put in a pleading saying we deny that this case should proceed as a class action well after they find after they've brought the  after the cases that issue with the answer having been filed you know why can't they sit down and talk settlement for the reasons your honor that the court has set forth repeatedly four times i think in the familiar with them one if the class certification issues have already been decided then the settlement discussion will focus only on the merits of the claims and not on this unknown question of whether there will not be a class and what the class will be how broad it will be will it be a nationwide class of state class subclass we don't there's no reason why that should drive down the potential recovery of the class  seeing here is parties who are current who have found a district court judge who wants to proceed in a particular way and they don't like because the district court is exercising more control over the litigation that the reason is that once that happens once the plaintiff and the defendant have negotiated a class and they have negotiated settlement for the negotiated class and then they come marching in lockstep before the district court and they say these are the claims that we've decided are going to be released they're going to be released on the behalf of this entire class and if you look at the response in this court for example filed by logic tech they specifically say well we don't want the class that they have asked for because we don't want to be stuck with that class but of course if we reach an agreement we might go with that class because then once we have the equipment we want you know it  interest of the potato of the proposed class of course the district court has the authority there's no question that we've never been any denial that the district judge has the authority to review the class settlement in those circumstances but what in our case law says that when the when there's this proposed class action settlement the district court judges have a heightened obligation to make to scrutinize that proposal and i think the reason for that heightened out legation is just because of some of these dangers now the district court in this case has decided it's better to resolve the class issues st and then proceed to any settlement negotiations the parties want to have once just like in a normal case when you have a normal case that's not a class action on the parties negotiate they know what the claims are they know what the parties are they and they negotiate on the basis of the merits of the claims they don't negotiate with this enormous cloud hanging over their head about whether it will or won't be a class action moreover there's no one no one in the circumstances that your honor is discussing who will advocate for the other side of the coin who will represent the interests  class members court could appoint counsel well you know your honor that's extremely expensive we're talking about well that has experience it's extremely expensive also to to require some litigation you know discovery and what not to to to go forward before you're going to term with the makeup of the classes we're on to look at the look at the proposals here look at the case of the joint case management proposal that was submitted by the parties they didn't want to even ask for class certification until july of this year we're not even there yet they wanted to complete all discovery in the case all the merits discovery all discovery and then only then asked for class certification they never had any desire to l e they wanted to go off and do with the or who knows maybe they had already done a deal and that's why they're so angry about this procedure that the district court has adopted in this case this notion that what we're interested in is saving money and we're going to protect the interests of the absent class members that's being sold a bill of goods logic tech has no interest in protecting the interests of the absent class members they have an interest in protecting their interests and there's nothing wrong with that but they shouldn't come before you and suggest oh we're here to tell you what's good for the absent class members now if we proceed when the when the court explain that there will not be any discount there is no way to get to the for you know the risk of class certification there's no way to get to the bottom of that by the court examination under rule twenty three a rule twenty three it doesn't say the court must permit pre certified cation settlements it could say that it could say the court is prohibited from deciding that class certification should go st it doesn't say anything like that well it's one that does just  if there's a preclear certification settlement then it will be reviewed in this matter in the same way that rule twenty three g three says the court may appoint interim class well you know there certainly is nothing in the rule that requires pre settlement certification and in fact the rule seems to contemplate the opposite that there will be settlements before class certification or there certainly have been settlements that have occurred before class certification and the rule acknowledges that and the district court acknowledges that i let me ask  is what do we do with golf oils you know concern that they were in that case you have to look at the you have to look at these kinds of orders in the context of the rule your honor i'm very happy you asked about gulf communication between the plaintiffs counsel and prospective class members and the court explained that that was an abuse of discretion under rule twenty three dollars because there had been no record made no findings no legal analysis no nothing just the order entered at the request of gulf oil now what's really important is always what the court said in its opinion limp let me read from what justice powell  said i believe was just this power i might have that in correct he said in the conduct of a case the court often finds it necessary to restrict the free expression of participants including counsel witnesses and  we also note that the rules of ethics properly impose restraints on some form of expression and even more apropos here a district court has both the duty and the broad authority to exercise control over a class action and to en appropriate orders governing the conduct of counsel and parties that's what the supreme court recognized in the very case on which they rule and they concluded that the order that the order that they were reviewing was inconsistent with rule twenty three because it was an abuse of discretion under rule twenty three for the reasons that i just mentioned there had been no findings that oh no let me ask you this in this particular case did judge alsop make any finding or any determination that there was some something amiss here in this case we judge also entered the order at the very beginning of the case right to prescribe the procedure that the parties in the court were to follow to avoid the dangers that the court identified this is not a situation of for an extraordinary remedy of mandamus once the if a class is certified the parties can negotiate away they've been free by the way to negotiate about the name plaintiffs claim throughout this process so if they wanted to say what full relief is the defendant here has been saying it wants to make the consumers whole it never says what it means by that if it wanted to demonstrate what it meant by that they could negotiated with respect to mr pore s claim they could have decided what mr poor ass claim was worth he brought he bought the two speakers that are at issue in this case the claim is that there were these speakers all of his money back sometimes he says he wants the difference between what he paid and what the speakers are worth i don't know what the defendant thinks he should get they want to make him whole they haven't done anything to demonstrate what they're prepared to do even with respect to mr poor ass and they've been free to do that the entire time they haven't done anything with respect to describing what they think the class ought to be except to say well there may be a lot of people out there who bought these speakers but they never saw the ads that  have four drivers and not two driver so they couldn't have been adversely affected by the advertising so this is all they just want to do with the way they want to do it there is no abuse of discretion here there is no criticism of the reasoning of the district court they're not telling you that the district court's concerns are not well placed they say that the only way the district court can address those concerns is by letting them do what they want to do then presenting it to him jointly as a package take it or leave it here it is and you figure it out and that's not required by the rules question is not whether the rules would permit such a settlement the question is whether the rules thank you ron or i agree gulf oil is a wonderful case that says it must consider the authority of district courts under the federal rules to impose sweeping limitations on communications it says that as the this question for decision is whether this limiting order is consistent with the general policies and body and in rule twenty three dollars it says it just reports discretion is not unlimited in a deed is bounded by the relevant provisions of the federal rules it says that you can under sorrell and many others when you have a specific limitation on specific people talking about specific things you need a heck of a showing and even under the you weakest formulation of the week a standard this court usually says it's narrow tailoring and no non no more expense stance of the necessary but even if you take the reasonable fit language it's not a reasonable fit when you have a rule that fits like a glove and says when this is supposed to happen and how you protect about against the very things the district court claims to be concerned about and i've been litigating class actions and in this court and other public courts for a long time and i've never heard anybody come up and say what they should have done  before it happened what that does it does happen one classification is not very likely and it certainly other events may have tried to make it happen in other times but never heard someone say well that's a solution pick off plaintiff that seems to me that's doing the opposite of protecting class members you know what the problem here is that it's all based on speculation mr beacham you speculated there was a deal already there judge a speculated that in some cases other things happen but we know when and how you're supposed to look into those issues the judge has a lot of discretion to inquire into how the deal was made into that into you know who's covered and why what the discounts are and why a lot of discretion to do that under rule twenty three that tells them how to do it you can't stop us from talking st amendment bars that and it's you know directly conflicting with the policy as a rule twenty three and he can't stop us from submitting a solomon which  you know if of course else some firm somehow failed to satisfy the usual standards then done you know that would be an interesting issue that can be pursued they have to be appointed a completely agree they have to be inputted as interim council and you know i'm sure  mr bell being in his partners or happy to make that showing in front of the court thank you thank cases submitted at this time