johnson versus nextel morning morning judges my name's can i speak for the five individual plaintiffs of this matter who bring their claims individually and also as a class representatives and the first ever we complain about is the fact that the court dismissed the five individual claims claiming that the statue limitations had run on those claims when there's nothing in the record that would support that as to the first two counts of the complaint these are all new jersey plaintiffs and they plead cause of action for breach fiduciary duty and tortious interference both of which have a six year statute of limitations is undisputed that they're represented by lead to morality through the last half of two thousand and one the complaint was filed in two thousand weren't they on notice of the leads and ready conflict of interest from sometime in two thousand that if they if they chose not to sue and chose instead to go ahead being represented by leeds  client of the conflict of interest and that it was not consent to bowl without consulting with other counselors or subject ordinary remedy so in this case i would argue that that's something that should not have been done on a motion to amend but there should have been a motion to dismiss directed  mr samuel to mr johnson's claims rather than just throwing them out on a motion to amend it should be considered under new jersey law and not been thrown out without consideration of the individual claims and certainly the three other plaintiffs there's no evidence has held that there cannot be faster vacation because of the difference of laws in different states among the flaws that the court found in the district court's previous opinion and certifying the class was that the class action was inappropriate could we have to look at each individual state and determine whether or not in that state the law would permit certification and no you're talking to the person i recognize both of both of your honors yes i do i this is the third time we've been together on this case i believe you're on my third time i don't think you this is your second this is your first runner right nice to meet you and it's been a long journey but this is a very unusual case so i do think that the courts should bend over backwards to give these people ready and i think by forming subclass a we give the court the opportunity to do that or less class this is the conundrum that i have had and i would love to be i'm like how do we form a subclass when we don't have a saying in the in the complaint as you structured it it's a class bring the federal claims and a subclass with these other claims so that if there's not a whole class then the subclass gets for moated to be a replacement class it's what's left your honor yes and i i will i will confess i'm not a class action lawyers so i may not have done this is artfully as would have been done by someone to to close we're looking for two classes we want it well we call them  jersey residents to go forwards these people should have a remedy and it's not argued that the do jersey residents have anything less than a six year statute of limitations for those first two count how many how many folks are how many new jersey  if we think that the georgia class is time barred or something like these people at least can't bring that because they would be time for it in georgia or something like that  you would be arguing a we should at least send it back so that the individual claims can be determined and be to the extent that those people still have claims they should be able to amend again to bring a class action on behalf of only new jersey people i question whether the the second step would be necessary the court could just enter a ruling and say that the class is limited to new jersey people and the proposed class including georgia people by their true the court's ruling that time bar exam the georgia people's so we're left with the new jersey people have the argument and  again i don't see an obstacle to that given this court's footnote in his prior opinion we don't have a question of damages we limit our damages to one hundred new jersey law has been established as a measure of damages when the allegation of  fiduciary duty with a wrongful payment to a fiduciary namely a disgorgement of the payment and i see a yellow light and i would like to say as to the rico claims it should be clear to this court that discovery below was listed limited to class discovery there was no merits discovery so the wire for audit mail fraud of the communications between sophisticated parties over state lines were yes or that's true and it is there really any dispute that the parties are all under at least inquiry notice once a class action is filed in colorado one reason these very claims and i realize that they didn't they may not have gotten  actual notice of that they didn't get not only do they not get notice judge of the class action in colorado was not your garden variety class action was filed under seal and the notice of the settlement didn't even disclose the injur these people suffered they didn't disclose the product it was drafted by leeds marley and brown's lawyers and it was under seal so the people who got this notice weren't even on notice of it but if we use that date they must know something's wrong a class action suits been brought in colorado about this if it's within that they were within the four years that's the april two thousand and two peter of class action in colorado state court foster that was when it was filed i believe judges than i was under seal it was under seal your honor and the class wide notice was in july two thousand and three is that right that's my understanding was that subject and confidentiality notice itself was in but the proceedings by which class action was approved were sealed in a sealed court room and that people were not allowed to enter unless they had been so this action was actually filed twelve years ago today and plaintiff's motion came nine years into the case at least fourteen years after the events to which the proposed new claims relate which are now eighteen or nineteen years old so like to take my time just to clarify a few facts first of all you may search the record you will not find any reference to the forrester e request that there be a new jersey subclass so first of all there is no class so there can't be a subclass but i suppose what we're getting to is maybe we should just have a class of new jersey plaintiffs so if that were the case we would confront all of the issues which the court confronted the last time we were here which is that there is no rule in new jersey that waivers of this sort are not permitted it is not a non consent and will state as the court addressed in what we call next one and so there would be  individual eyes the issues as to what the various plaintiffs were informed about the conflict of interest what how they felt about it what their degree of concern was not to mention all of the other individual is the issues which are set forth in your last opinion so a class action under new jersey law is simply not going to work regarding the dismissal of the year but there isn't a rule in jersey where on this question by way of a state that is like what i understand colorado's rule as which is if you have a waiver that said well the rule of professional conduct in new jersey as a general matter says that if you get a waiver in writing upon informed consent then a conflict can be waived and so every single person would have the issue of this informed consent indeed every single person signed an individual agreement which disclosed the conflict of interest every single person read that and signed it and so i think there is no issue as to so if the latter condition was not met wouldn't that be a unitary issue for all class members because that goes to the reasonableness of the state of mind and the reasonable miss of the state of mind of the leads me ready lawyers not to what each individual client thought well but it's a subjective standard some states have an object of standard this is a subjective standard and i think given the subject to be pretty much next that judge winter's well but and and the colorado court looking at the very same agreement said just the opposite so we end up in every state with this issue and indeed there was in one leads a million brown lawyer the satisfaction of r p c one point seven b two which is the subjective standard so it seems to me that individual ised issues would completely dominate and so a class action wouldn't be at all appropriate and malpractise but they also testified that all of this was a matter of common knowledge and had been common knowledge for quite some time among the new jersey nextel employees and so i believe that that's what drug daniels was says well i did not know i'm not sure where the point of point of one statement speculating about what plaintiff to knows is even relevant but assuming it is wouldn't someone have to decide is he ri not that each of the remaining three nextel employees knew everything that the other two knew but there was enough out there i mean in the cochran letter itself  encloses a new york times article from several months earlier i mean this was this was widely known and so what the judge was ruling is not specifically that all five plaintiffs knew exactly what each of the others did but all five plaintiffs knew enough to be an inquiry notice at that point if there are no other questions thank you thank you mr senator very briefly in rebuttal your honour's judge winters said that as a matter of law the conflicts were so holds that as a matter of law the new jersey courts would say this is a conflict of interest that cannot be way even because informed consent is impossible and i'm allowed to go forth by class and the fact that i change the damage model to the amount of the and we've had to go back and forth but it's not something that where the plane of slept on the right so i ask this court to give these plaintiffs their day in court that they saw last so long so thank you thank you thank you both will reserve decision