thereby precludes the litigation of the class claims well the posture of a punitive class action is exactly the same whether the plaintiff's claims were relinquished voluntarily or involuntarily as recognized of that was because of the motion practice i don't recall one hundred percent but i don't think we even started this government so i don't i don't there and there's been i'm quite certain there's been no charge by the defendant that i had engaged in undue delay in seeking certification but the question is whether you had time to do it for view one exception then we have recognized well one exception  we have recognized to the mood innes when when when you have been paid the answer is no because we didn't do discovery so i could have made a in an adequate motion but it's and i don't know if there was a picking off or not but you didn't argue that if you had argued that we are here picking off we should read that more broadly then your case would seem stronger but you never make that or with all the respect that in thing that was necessary because i know you didn't figure it was necessary and if you're right you win anyway but what i mean isn't it would have helped it kind of the what i mean judge is that it was obvious that because of the defendants in the end it was obvious that the defendant hope that's why we're here today that i would be picked up that's we're only arguing about the class claims that's the whole point of of the dispute  decided to focus on this question of whether of you are getting extra money or you would get extra money as a representative now you have a perfect right to focus on that and if that's a good argument that's because the case law deals with the effect of an offer of judgment in a case where that offer moots the class claims that's why we're here so do i know what was going on in the defendant's mind when he made the offer i obviously don't know that in a literal sense but the point is the very point here is because the question is are the cles claims moot or are they or do they remain  to argue that that i would otherwise they know that if a class claims can't be litigated there will be a picking up to me it's it was frankly if i may say so with no disrespect intended it was too obvious to state that's all the background case law and if i and if i had argued that they're trying to pick me up i don't think the defendant would say no that they might say no but the class claims are no longer judicial justiciable which is the exact same thing so i'm just i'm not sure what benefit there would have been to me again there was no discovery so i didn't have a chance to take a deposition and say well why did you make that offer of judgement when you try to scuttle the class claims that likely was the case but whether that was intentional or not that's wh arguing here about the whether the class claims survive or whether they were in fact picked off by the offer of judgement or by my payment of the check so i don't think it was necessary to argue something that which makes it different under our own case law but even so no i suppose you could have left the check there but you did put it right again i think the result is the same it's the judgment let's say i had the off judgment either it was forced upon me or accepted it but let's say in either case i didn't fight it ok well that's will relinquish my claims you're not asking in a lawsuit you're not asking for money directly you're asking for a judgment so once i have the judgment assuming i'm not fighting it which i'm not i'm not fighting the judgement on my individual claims once i have the judgement my claims are moot whether i whether i deposit the defendant's payment whether i don't whether i deposit some of it and so on and so forth the posture of the case is exactly the same if i had if i held the check in a desk drawer would be any different as again it provided that in either case i wouldn't be and i'm not fighting the judgement in my favor so again from the clip from my point of view or i should say from the from the law's point of view the status of my claim is the same the class member status hasn't changed their interests haven't cha and also is reasonable just like the ritz discussion in the briefs about white and plaintiff who settles or accept an offer of judgment shouldn't be punished well why should i be punished for negotiating the check it was a reasonable thing to do if i didn't do that again soon and by the judgment so then i would have to take the risks of enforcing the chair of the judgement which means i would have to spend time and perhaps money to enforce and might never get the money at all either i can't find it that could be bankruptcy and so on so again look at in the context was why punish the class members you put would you put a check in escrow i suppose i could have been but it but again as long as not fighting the judge i understand if you are i see no difference percent so you were taking money not belong to the club no the money no i don't see that way that money was offered to me individually if it wasn't and recovered why you can't recover and you know of course no no once of course not no no i'm not looking to recover twice the only the personal stake i have as we discussed is in the incentive award no of course any but again whether i settle for my own claims for a one dollar for the exact amount that i was seeking on those claims over one hundred times that amount makes no difference i'm not seeking of course i'm not seeking additional recovery that that's not in dispute that  all depends on how much of a class is bank so you have taken something that would be part of a class now if you put it in escrow then it would be in escrow for a class and it done and we're not talking about whether your cla to as being related in other words it's entirely unknown if there's a class settlement let's say for oregon say there's a class settlement and the class members each get their maximum statutory damages which fifteen hundred dollars me i'm missing the action by cashing a check to me clearly you regarding who's an individual which no not at not at all i don't like because all all i did by cashing the check which would be the same thing i would have done or and other circuits recognize if let's say i had accepted an offer of judgment and then presumably one who accept an offer judgment would also deposit a check payment all i've done is moot my own claims which in some respects is in the interest of the class members i void the risk of trial but if i what if i went to trial that when the poor judgement was me it which point the danger you had foreseen would be or whether a check was given to you again about whether they would be able to pay later that is different from the question of whether venue put that money in your pocket or you put it in escrow for instance or of a class i mean that's a separate question i don't see that whether at that point you  doing something which is inconsistent with being the classes represented that's what separate question from whether you wanted to get to that point so as not to get a negative judgment or any of that i don't see how it's inconsistent i'm asking for a judgement about my individual claims in the class claim so let's suppose i got a judgement just on the individual claims to get any payment i don't see why those two different there's not it's not as if the defendant said ok we have this finite amount of money for the class and todd banks claims are worth let's say three thousand dollars and want to pay him three thousand or less or more as the case was a little bit more and therefore going to have less of the class that that's it that's it's unknown but in general plaintive can settle his case they made the offer and i guess i could have asked him to send me two different checks one for the exact amount of statutory damages and one for the surplus if you will but again i don't see how i don't see how accepting the payment is is inconsistent or any more inconsistent with any obligation i have to my fellow class members versus if i just accepted a judgment the judgment the payment really inseparable why why would i if you if i could accept the judgment how does it make sense and i don't think there's any case law on this saying that a plate of accept an offer of judgment thereby has an obligation either not to accept payment which i soon in a normal case when the offer of judgment is accepted or payment would would follow that and i've not seen any case law that says anything about not except in the check except in some lesser amount put in  escrow the point is regardless of of the negotiation of the defendant's payment my individual claims and i'm not disputing this have been relinquished voluntarily again why should the class members who are least theoretically least theoretically or depending for their recoveries on the outcome of this action why should they forget me for second why should they be punished i don't i don't see the r classroom uses although they settle with todd banks claim or his individual claim and therefore if this case is dismissed of the class claim to dismiss not only are the class members being in effect punished by having either no recovery or a delayed recovery but with respect to the latter to a delayed recovery now they'll have to bring their own individual lawsuits well the whole purpose of a class action is for judicial efficiency and to encourage people like me me please the court christine really appearing on behalf of elian's health networks any appellate so i want to start with a question a judge caliber e c m asked the question was does it matter that mr bank cashed the check and the answer is it absolutely does matter that he cashed the check in this case there was a judgment that was entered giving mr bank full relief on his claim he knew the case had been entirely dismissed yet he decided to cash that check this case is unlike any other all sixty eight case is very very different from the other cases that are pending because if there is a voluntary settlement of his cancel the check if he just keeps it there but he puts it in escrow for a close i think if you put it into escrow that certainly would have perhaps change this case slightly but i don't think we'd get to a different result and the reason we wouldn't get to a different result is that the binding case law in the circuit under two nasi says that even if mr bank had decided not to cash this check not it was an unexpected offer that can still move the which doesn't under copies but might suggest the reconsideration it's a great point i don't think that campbell it will change is this case in any respect and i actually don't think it's directly on point and can leave all the issue there was whether an unexpected offer can moot an individual claim not is the question that the court looked at and found that the entered into question is not on offer alone here mr bank not only received an offer he actually received money not only did he receive money then he then cash that check in put it into his pocket therefore removing this case from being having any standing or having any class claims court and campbell you'll left almost questions open and leaving them open surely did not decide but they may have suggested that that's a question that they are interested in that could lead us to reconsider to say we had decided before the supreme court had united we're not alone in anything but and we do have case law which goes we that if the claims of the named plaintiffs become moot prior to class certification the entire case becomes moot and i do not think that there's anything in this case that warrants a departure from well established case law and it's not just one case it's the carcase it's also the martin case in which your honor was a member of in which now you've been wrong you were not wrong and unnamed representative must have standing at the time of class certification we don't even get to that question here because no motion for class certification was filed in a different question and this may not be part of the record i don't know so on the marriage i do not believe our client is engaging in any robo calling or any violation of the you didn't believe that they were before when you seven because you didn't admit that we never made any admission whatsoever of liability to get rid of in chen suggested that we're very speaking off something of this sort then the relation back doctrine should be interpreted broadly no isn't that something that we should pay attention to even if it rarely gets things wrong the second circuit clearly has the better view on this issue and in fact the second circuit has historically and it pretty well established the second circuit doesn't look at these issues in the same way and i be wondering beyond the bounds of you would say that chen is not relevant here because inch and there is no check cashed one way of state machine yes that is one way even if we were otherwise inclined to look at night circuit precedent on this question absolutely correct not only is cheney an applicable because the facts are different and there is no voluntary settlement but it also is a departure from established president in a circuit which began very strongly of the fact that this was a saying that makes this case absolutely i think that makes this case different and i think unlike the other cases that have been pending including ones that are before the circuit that's that issue or the voluntary settlement makes this a much you were to go in that room i'm sorry how much ground on the ground that there was a cashing of the check yes i mean there is no specific law that posing counsel has said you see no law and you issue but there is guidance from the supreme court on that particular issue fact if you look at the roper and garrity decisions which mr banks cites those cases involve the denial of class certification a pledge the defendant offered complete relief for the named representatives refuse to take it the supreme court goes through pains in both of those cases to specifically say this is not a case where a plaintiff is voluntarily settled their claims they distinguish would on that distinguish it on that basis there's also even though plaintiffs have been able to have standing even when their individual claims are moot there is a limited exception about allowing that plaintiffs to appeal class certification there is something analogous in the sixth circuit the mongomery case the sixth circuit says well even if your claims are mood and even if you're allowed to peal your classification decision under  roper or guarantee you voluntarily settle this case you don't get to appeal class certification and i think more telling there is discussion of this point from justice kagan and we all know th justice kagan has been pretty hostile to rule sixty eight offers but she said this in genesis now introduce a settlement offer into the picture assuming that before the court finally decides whether to permit a collective action the defendant proposes to pay smith the value of her individual claim in exchange for her abandonment of the entire litigation if smith agrees of course all is over like any plaintive she can assent to a settlement ending her suit and i'd submit to the court that this is really no different here mr bank was given a check after east judgment in this case and satisfied that judgment and by doing so he ended this lawsuit not only on his individual claims but on his class claims as well and if i might make one other comment there are the decisions of the cases of larry  are pending before the second circuit and i would submit that this court does not need to wait for those decisions because they are very different from the case here those cases do not involve voluntary settlements and they have very different factual circumstances thank you first of all the d c circuit the fourth eighth one thousand eleventh have all said that he named plaintive who voluntarily dismisses or withdraws settles his individual claims and not the class claims may continue to pursue the class claims justice kagan was not addressing that situation she was just making the general point that yes of course i was i could have settled this entire case of course i could have entered into a settlement certification then there was to still no class yet so i'm in the same this case is in the same posture as if as if certification had been argued in the district court and denied you because in either  claims are moot whose claims become moot may subsequently may subsequently see classification unless there's been undue delay i mean this records throughout this circuit have held that others i believe other circuit courts have held the same the third circuit i know has and so on and again there's been no charge that has been on the deal and we've had no discovery just a couple more brief points again i think this case equivalent to some of the ninth circuit cases and others it's as if it were a voluntary settlement there's no difference between whether there was a judgment that i deposited the check versus a voluntary settlement and that's what happened in the a lot of sponsor but no rules and they the in the ninth circuit there was a voluntary settlement that preserved the class claims i don't believe the quarter addressed the question of whether the nameplate of deposit or payment but most likely probably did one party settle claims use or there's a payment that follows the court didn't even think to address the issue probably because the court realized it wasn't relevant again whether i did no difference in whether my claims are no more or less moo absolutely no absolutely and again i just don't think that and i don't see how it makes any difference in whether i deposit the payment or not might my click the status of my claims they're moot and they're not more moot or less mo based on whether the positive the check and then just last but not least in terms of the relation that dodge my colleague cited genesis health care but as the vast majority of courts have addressed the issue of health including including the only addressed the issue as far as i'm aware have held that that case was specifically a playable only to the fair labor standards act and not with twenty three class action no there no questions all rest