-: SJC-3419.
Michael Hanley and another
v New England AutoMax Inc and another.
-: Okay, attorney Aaronson, whenever you're ready.
-: Good morning, your honors.
May it please the court.
Mark Aronson, I represent the petitioner's appellants
in this case.
With me is attorney William Raven.
I've been referring to them in the brief as defendants
and I will continue to do so today.
We submit, this is an important case,
not just to the parties here,
but also to other litigants in the District Court
who have rights created by statute
to have cases of a certain value heard,
either in the District Court or the Superior Court.
Now, this appeal presents two main issues.
One, should this court hear this appeal on the merits
pursuant to general laws 2-11-3.
And if so, did the District Court air in denying
a rule 12B10 motion arguing improper amount of damages.
I'd like to start with the first issue.
As far as I can see it,
my burden is to prove a substantial claim
of a violation of a substantive right,
an irremediable error, i.e error that cannot be remedied
in the normal appellate process.
And I'd like to start with the appellate process
because that was the basis for the single justices denial.
Excuse me, denial of the petition.
In 2004 when general laws 21819 was enacted,
the then chief judge of the District Court said, in a memo,
denial of a rule 12B10 motion appears to be immune
from appellate review.
And that appears to be the case.
This is an extraordinary situation
and I recognize 2-11-3 relief is extraordinary.
First, there's no direct appeal, that is foreclosed.
We submit by the plain language of section 19.
Otherwise, in terms of an interlocutory appeal,
there is no statute or rule that would authorize one.
-: Can you please address 230-108.
-: 230-108, that is, as I understand it, the enabling statute
that creates appellate division jurisdiction.
It references interlocutory appeals in two ways.
But before I get there, in terms of a right to an appeal,
it says an aggrieved litigant
shall have the right to an appeal pursuant to the rules.
And what is absolutely clear is the rules only permit
a conventional post-judgment appeal.
-: Sorry, can we just slow down and read the sentence
because it's sort of important.
Any party to a cause brought in the municipal court
of the city of Boston or in any District Court,
aggrieved by any ruling on a matter of law,
by a trial court justice, may as of right,
appeal the ruling for determination
by the appellate division
pursuant to the applicable rules of court.
Do you think that that can reasonably read to say
that they may appeal aggrieved by any ruling,
they may as of right appeal
unless the court decides to enact rules
that preclude them from appealing?
-: I think the answer is appellate jurisdiction
is defined by the court rules.
And the court rules are abundantly clear here.
I would invite the court to District Court rule four
and compare that with mass rule
of appellate procedure rule four.
Unlike its appeals court counterpart,
rule four only permits a conventional post judgment.
-: What about rule three of the BMC and District Court rules,
which specifically refers to orders as well as judgments?
-: I don't have rule three.
I don't have it on the top of my head right now,
but what I think Your Honor is getting at
is probably a right to an interlocutory appeal
pursuant to the present execution doctrine,
which my friends over here rely heavily on.
-: Well, why do we have to resort
to the present execution doctrine
when admittedly quite unusually,
we have a statute that seems to give litigants as of right
at least where there's a question of law,
a right to go to the appellate division.
Why do we need to resort to the doctrine
present execution in that case?
-: Because the statutes conflict.
The as of right incorporates the rules.
The rules don't permit an interlocutory,
at least that's my reading of the rule.
-: So you said earlier that court rules
create causes of action.
I thought statutes create causes of action.
-: Well, the statute here-
-: Or sorry, appeals.
-: The enabling statute here
incorporates the court rules by reference.
And I would also point the court,
the enabling statute for the appeals court,
by the way, 211(A),
that says the appeals court's jurisdiction
is a little different.
It's bound by rules and the common law principles,
that's something, for example,
the present execution doctrine is a common law doctrine.
And I would just like to add,
I have researched this extensively.
I can find one case from this court
that involves interlocutory appeal from the District Court
arguing present execution.
That's fabre.
That's a 2-11-3 case just like this one.
Then comes Van Lew, which was related,
and they basically said,
Anti-SLAPP appeal shall go to the appeals court
rather than the appellate division.
-: Well, isn't it interesting though
that 231-97, considering the Superior Court is very clear,
it uses the word judgment.
So it's very clear that when the legislature
only wants to provide for a right of appeal
following judgment, it can do so.
And in fact this isn't addressed in the briefs of the party.
But if you look at the annotated laws,
the language here we have now about, you know,
may as of right appeal the ruling, any ruling of law.
It formerly until 1975 said
once it's ripe for appeal at judgment approximately,
and the legislature removed that language in 1975.
So now we are faced with a situation where
the District Court's statute says
anyone aggrieved can appeal as of right
any ruling on which they're aggrieved,
which is quite different from what it says
for the Superior Court.
And I'm curious about this question
about the applicable rules of court
because I agree there's a little bit of a limitation there
that pursuant to the applicable rules of court.
So is you have any case law
standing for the proposition that
where the legislature seems to have given a right to appeal
the rules of court can take that away
as opposed just conditioning it.
-: Our argument is based on
the plain language of the statute.
It appears as though the legislature authorized
the appellate division in a way
to define its appellate jurisdiction by crafting rules.
And what is clear,
and I can't get inside the heads
of the drafters of the rules,
but they don't seem to authorize an interlocutory appeal.
And perhaps what they were thinking is-
-: Well actually, so rule four
is what you're heavily relying on,
and that is the rule that pertains
to when you file the notice of appeal?
The real rule about how to appeal is in rule three.
And that rule does say order as well as judgment.
-: Can I make one response to that?
In a typical appeal, you are certainly appealing orders
that are made along the way.
You just need to wait for final judgment
and you need to establish prejudicial error
under those circumstances.
So perhaps that's what the drafters were getting at.
But what is clear is rule four plainly dictates
when an appeal may be taken
and it seems to say only post judgment.
And one more point I wanted to get,
I have access to appellate division rules
or appellate division cases going back five decades.
I was only able to find two cases in five decades
applying the interlocutory appeal
as of right under present execution.
But neither court addressed the,
I guess the preliminary question
of whether it was appropriate in the first place.
And one more point on that, appeals of 12B10 motions,
there's only been three of them.
All three of them were 2-11-3 cases.
That's Sperounes, that's Langone,
and then there is Torah,
which was a single justice opinion by Justice Botsford.
I recognize it's single justice that's not binding.
-: I read the brief unfortunately at the last minute.
What does Justice Botsford say in Torah?
Why does she grant relief?
-: I would urge the court to read it very carefully
because it is squarely on point.
In fact, I'm having a hard time distinguishing it frankly.
It's a proposed class action alleging wage act violations.
The plaintiff there said under general laws 21819(A),
the district judge was bound by a statement of damages
that said $10,000 in damages.
Justice Botsford said,
I'm gonna look at the operative complaint.
The plaintiffs there are asking
for more than $10,000 in damages.
They're asking for another 25 in lost wages
plus attorney's fees.
And she granted relief essentially saying that
the lower court-
-: Is that because it was patently obvious
that it was above the amount.
While this one is not patently above it,
right now, it's below it,
may very well grow to a hundred times the amount.
-: She didn't use the anything
to the effect of painfully obvious,
I believe it was 25 plus 10 plus attorney's fees.
And admittedly at that time the statutory threshold was 25.
-: Can can I ask you?
If we look at the appellate division statute
and then rule three and rule four
of the District Court rules and say that
there's a remedy there,
which means there's no 2-11-3 jurisdiction
or we decide this present execution,
you lose either way, right?
-: Well here's the problem with present execution.
-: What about that question?
-: I'm sorry, could you repeat the question, your Honor.
-: It was both ways.
-: If there is no adequate remedy
in the normal appellate process,
I'd urge the court to hear the case
just like Justice Botsford did in the Torah case.
-: With all due respect,
we're all single justices and we make our own calls.
But if we have either appellate division jurisdiction
through the statute plus the rules
and or present execution under the common law,
there is an available remedy, so no 2-11-3.
-: I agree. Yes.
-: Is there also a third way you lose, which is,
so right now there's only one plaintiff
and the amount is under the threshold.
-: It's two plaintiffs actually.
-: Two plaintiffs. -: Yes.
-: But isn't this gonna,
if he starts getting a bunch of new plaintiffs
with new demands,
the case is gonna move to Superior Court anyway.
So is this kind of like, not the kind of extraordinary stuff
that requires us to be doing this?
This is gonna work itself out
in the ordinary course of litigation.
-: I'm not sure if you accept
the District Court judge's ruling.
I'm not sure it's gonna make its way
to Superior Court anyway.
-: The District Court's gonna hear
a hundred person class action suit
with damages of a couple million dollars.
Maybe if they don't shift it then,
maybe we have to do something.
But right now, isn't that gonna work itself out?
-: I think Your Honor is making my point for me
as to the importance of this case
and a defendant's right to have a class action
in the Superior Court.
But here's the problem.
The District Court read a section 19(A)
as limiting the judge's analysis
to the initial statement of damages.
So that's what the denial of the 12B10 motion was based on.
And that's not gonna change if a class is certified.
And that's why we're here.
I think this case presents a very significant issue.
And I'm running low on time, I would urge this court,
even if it does find that there's no right to 2-11-3 review,
I'd urge this court to take this case
under the second paragraph of 2-11-3
because we submit it...
It is necessary to address and resolve
what I see as a systemic issue
that really matters to litigants in the District Court.
There are very different rules and processes,
time standards, number of jurors
attorney conducted voir dire.
And what was eye-opening for me are the respective caseloads
of district versus Superior Court judges.
It's in footnotes in our brief,
but something like 2,700 cases
per judge in the District Court.
And going back to Justice Kafker's point,
a case like this could present-
-: These are rather routine matters, with all due respect,
as a Superior Court judge,
we would get remand requests all the time
and we'd have to sort through the addendum
and to see whether or not
they were appropriate for jurisdiction.
These are kind of things that District Court judges
and Superior Court judges do every day.
-: I don't know if-
-: Do you want us to do it?
-: I don't know if they do
50 person class action cases every day-
but I understand-
-: We look at those jurisdictional amounts every day.
-: And the problem is the right to be in Superior Court
really wouldn't matter all that much.
-: Can I ask you where that right stems from.
I get that there is a District Court
jurisdictional amount in controversy
that's procedural according to Sperounes.
Why does that translate into a right to the litigant
to a particular forum, either superior or district?
You said that at the beginning of your argument
and I don't really understand why.
-: So well first off, rights can be created by statute,
and I think-
-: Right, but this statute says the jurisdictional limit,
which we've now interpreted as procedural
is now 50K for the District Court.
I don't understand why that creates a right in your client.
-: Oh, well my response to that, Your Honor,
I'd say that's apples and oranges
to use an expression that I've heard Justice Lowe say.
(indistinct)
Procedural versus substantive for purposes
of subject matter jurisdiction,
I submit is not on point here.
In fact, I cannot find a case
and I don't think my brothers could either
'cause I didn't see it in their brief,
but explaining what is a substantial substantive right
for purposes of 2-11-3.
I see I'm out of time,
but if the court will just indulge me one more sentence.
It seems as though what the judges do
is they look at the importance of it
and then single justices anyway, make a judgment call.
-: But where does your right come from?
-: So from section 19.
-: So the jurisdictional limit
of the amount of controversy of the District Court,
in your opinion, creates a right in the litigant
to a particular forum.
-: To have cases of a certain value heard in a certain form.
And I see I'm outta time,
so unless the court has any questions,
I will rest on my brief.
-: Okay. Thank you.
-: Thank you.
-: Okay, attorney Richardson.
-: Yes. Attorney Robert Richardson
on behalf of Plaintiff's Appellees with attorney Abor Cumb.
May I please the court?
-: Yes, please.
-: Sure.
-: We're easy to please on that.
-: I think this is a pretty straightforward case
and you know, we were hitting on it earlier
with respect to rule three.
So under 2-11-3, there must be
a substantial substantive right implicated,
and there must not be an alternative adequate remedy
in the normal appellate process.
And as we step through, you know,
we step through 218 or 230-108,
it's not just limited to final judgements.
It says, any party by any ruling of law
has a right to appeal to the appellate division.
And in fact, in that enabling statute,
it talks about the appellate division
being created essentially to hear questions of law.
And that's exactly what occurred here.
But there's two elements there, and it's substantive, right?
And as many justices pointed out,
this court has said that that's a procedural right.
So on the first element it fails.
So 211 is not proper.
2-11-3 is not proper under that.
But even under the second element,
it's clear that there is an alternative remedy
and possibly two.
-: Counsel, on that point,
I think that it's fair to say
that even if you're right,
that 230-108 does provide a right
as of right to an interlocutory appeal here.
This court has on a number of occasions
suggested or arguably held that 2-11-3 is the appropriate,
is the appropriate avenue here.
Sperounes is fairly clear on this point.
And I think interestingly referred to the quote,
uncertainty regarding appellate rights
in the District Court and BMC.
So are you aware of how this court
has dealt with the question of
is there an alternative standard of review,
or alternative avenue of review
where perhaps a litigant may have had very good reason
to believe there was not an alternative avenue for review
based on this court's own cases.
And so sought to 113 pursuant to
all extent appellate authority
about how to go about contesting this?
-: Sure.
With respect to that case,
I think if you look at, you know,
kind of the background of the statute, right?
Essentially, and this predates my practice, but 2004,
you know, the statute changed
where essentially the legislature sought
to essentially get rid of the removal remand system, right?
The one trial system.
And in doing that they invested,
you know, money jurisdiction
in both the Superior Court and in the District Court.
Essentially they wanted to get rid of this,
you know, removal and remand, removal, remand process.
And I think if you look at that case in particular,
this court and you know,
you're the court, so you know,
but my take on it was that it was a relatively new issue.
The issue there was the definition of the term plaintiff
and whether that included a defendant
who brought a compulsory counterclaim.
And I think that's very analogous to the situation here.
However, I also think that was done at that time
because of the newness of the statute.
And I think the court wanted some clarity on that point
that the plaintiff,
there's some real analysis in the Langone case
about section 104 and essentially section 104 was repealed.
And that essentially a walkthrough the iterations
where before you could remove the case to Superior Court.
And the court in Langone,
this court in Langone essentially said,
you know, that's no longer the case.
One of the issue presented in Langone was one of the,
you know, situations under 104
where that was repealed
and the legislature specifically wanted
the District Court to proceed so.
And that dovetails with what Judge Coven did here
in District Court.
And that's essentially looking at the term plaintiff
at the time of the filing of the complaint.
And that's the statement of damages piece to this.
So I think although the court pulled it up at that point,
I don't think that's the normal course,
and quite frankly as been mentioned,
I don't think this court should use
its limited resources and time to review whether,
you know, a defendant's not happy
because we're in District Court
because they'd rather file 9-8 you know, motions, right?
Like I don't think that that's an appropriate use
of this court's time.
And I think that's gonna essentially open up,
you know, defendants to doing this, right?
If we could have filed in Superior Court,
you know, we could have filed in District Court.
We do it based off of the information we have
at the time of the filing.
We haven't engaged in full discovery.
We don't have, you know, all-
-: Have at least two clients.
-: We did not have two clients at the time.
-: No, no, no, at the time.
But now before you served the defendants,
you actually had two clients, isn't that right?
-: I think we filed the amended complaint after,
but it was three months later.
So, but the statement of damage
was submitted in the first original complaint
and there's nothing that requires
a second statement of damages.
-: Did the defendant submit their own estimate?
-: No, and they have the right to do that
and they did not do that.
Now I don't think that necessarily
waives the right to raise it in an answer
because I think in one of the cases
it talks about their ability to do that,
but they did not dispute it.
-: Doesn't inform our analysis
of Judge Coven's decision, right.
If he is looking at one set of numbers
and on the other side he's got nothing.
-: Yeah, but they could have submitted some calculations
and they had access to data files-
-: And they didn't. -: And they did not.
Yeah, absolutely. Absolutely.
So I think that support Judge Covens.
-: I appreciate that the first sentence of 19(A)
does refer to the statement of damages,
but later 19(A) goes on to talk about
a hearing and additional potential written submissions
by the parties at that hearing.
And then there's the fact that 19 refers to
this entire thing is supposed to be an assessment
of this action,
which to me seems like
you should look at the operative complaint.
Can you give us your strongest argument
for why the court should blind itself
to literally the operative complaint
when making an assessment of the damages?
Or is that not your position?
-: Well, I think it goes back
to this one trial court system, right?
So the District Court does have concurrent jurisdiction
for money damages.
And at some point you have to,
if you're gonna get away
from this removal and remand system,
you have to draw a line of where you analyze this.
And I would suggest that that line
is that the statement of damages
and when the complaint filed-
-: Are you saying that your case
is gonna stay in District Court?
Are you suggesting that this case
is going to stay in District Court
and be heard in District Court
and resolved in District Court.
-: Yeah, absolutely.
And I will tell you this-
-: If you get 20 more plaintiffs, you think this belongs.
I mean, judge Coven wrote based,
there's been no class certification.
He's careful, he didn't write that
you get to stay indefinitely if you get 30 clients, right?
-: He didn't say we didn't either so.
-: You think we can, the District Court's the right place
for a hundred person class?
-: Yeah, I absolutely do.
The legislature specifically-
-: This important case and-
-: Did the legislature,
I mean, the legislature granted money jurisdiction.
They didn't limit it to say, Hey, if it's too complicated-
-: If you're gonna be seeking $2 million
or $3 million or $5 million in damages
and triple attorney's fees,
you know, we're familiar with wage act class actions.
-: Sure.
-: They're not $50,000 cases.
Are you saying that this,
because initially this is filed
as a one person potential class action,
it stays in District Court?
-: I would suggest that under the legislature passing
the one trial court system
that invested money jurisdiction
with the District Court hear all matters.
I don't see why it wouldn't.
-: Under $50,000.
-: Unless it's reasonably likely to,
unless the plaintiff's reasonably likely to recover $50,000.
And that's the heart of this case.
What does the term plaintiff mean?
And we briefed this
and this court in Langone said essentially
a compulsory counterclaim can't ruin that jurisdiction.
-: There are any cases out there
that have said in this context,
'cause maybe this does present an important legal issue
that I wasn't familiar with,
but are there any cases that say that in District Court,
before a class action is certified,
that's the issue on the amount of damages,
even if this could be a, you know,
a billion dollar cigarette case, you know?
-: Again, I don't think there's anything that limits that.
In fact, the legislature invested concurrent jurisdiction
for all cases involving money damages.
We just settled the case in Quincy District Court,
a class action with approximately 70 class members
for just under a million dollars.
So I don't think that's something that's prohibited
in the District Court at all.
And in that case, you know-
-: Challenge the jurisdiction
-: No one challenged the jurisdiction in that one.
-: Lucky.
-: Again, I think if you read the statute
and you look at the analysis that Judge Coven provided
and this court's ruling in Langone-
-: With the issue of what happens if the class is certified
and the amount of damages goes over $50,000, right.
He says there's been no class certification here, right?
-: He does say that. Yeah.
But does that ruin money jurisdiction?
I'm not sure what would be the grounds
for that to ruin money jurisdiction because,
and I know what you're gonna say,
but if you step through it, right,
and that's what Langone said.
Essentially at some point,
if we're gonna implement a one trial system,
you know, what do you do?
You go through discovery and then you say,
you know what, the damages are gonna go up.
So now we're gonna have to move it to,
we're gonna have to remove it to Superior Court.
Where along that path of litigation
after the complaint is filed-
-: Langone says, 'cause I haven't read it in a long time,
what does Langone say?
-: Langone essentially says, the term plaintiff
means that the party who brings the complaint,
the original complaints.
And when-
-: Well, it doesn't say original, does it?
-: It says who brings the complaint.
-: Right, and in this case,
you've got two people bringing the complaint.
-: Well, but in that same regard,
if someone were bringing a counterclaim,
that's also a complaint as well.
And the court said you can't ruin jurisdiction on that
in that iteration.
And I think that's very similar to the situation here
where you have a second plaintiff who's coming in later.
And again, there's nothing that says
that the court can't proceed
if the parties are gonna,
or if the plaintiff's gonna recover more than $50,000.
And that's why the legislature, you know,
granted concurrent jurisdiction because they didn't want
this inefficient use of judicial resources.
-: Right, and that really acts a premium
on the reasonableness of the District Court judge
or the BMC judge's determination
as to the amount and controversy,
which makes this as Justice Kafker was saying,
an important case.
-: Sure. So here, I think that's a different issue.
So if we, you know, I don't think there's any way
you can argue that 2-11-3.
I mean, you can argue,
but I think that the 230-108 is clearly
that that provides a remedy here.
That wasn't taken under rule three and four,
I think they had 10 days to file.
-: Right, I guess my point was more about
second paragraph of 2-11-3
on whether or not it makes sense for this court
to analyze this very important issue
of upfront determinations of a mountain controversy
and where the particular suit should take place.
as we did in Sperounes.
-: I mean, you know, this court could do that.
It's, you know, it's your right, obviously.
But I don't think that was before presented here.
I think that the question was whether there was a right
to have this heard by any defendant,
whether a defendant should be allowed to pursue this,
you know, 2-11-3 path.
And I don't think that issue
is anything other than no, they should not.
And I think that's because there is an alternative remedy.
So if there's a separate issue
of whether a class action
should ever be heard in District Court,
I don't think that's here before the court today,
and I don't-
-: Well, but it is because that's the complicated issue here,
which is you've brought this as a class action,
but the class hasn't been certified.
The amount right now is under $50,000.
But you yourself envision this
to be a class of many with much more at stake.
So it starts to sound like
this is the kind of thing we should be dealing with.
-: Well, again, one, we don't know that
because discovery hasn't taken place yet.
So they're contesting whether, you know,
they're contesting many aspects of the rule 23.
-: I thought you were okay
because if you actually did add people and a class,
it became clear where really dealing with the class,
the judge would've another opportunity to say,
oh, this belongs in Superior Court,
but you're saying, nope, we gotta do this up front.
And that's what you're gonna be arguing to the judge.
So that makes it a little harder.
-: Well, again, we're not there yet, first off,
but to the extent that we're, again,
looking at the intent of the legislature
in enacting the statute,
it was to get rid of this removal and remand.
So I think with all due respect,
and under the (indistinct),
you're suggesting where, hey, you know what,
if at some point during discovery
it looks like this may be more,
then the judge can remove it.
I think that just goes right back to the problem
with the removal and remand system and the inefficiency.
So, you know, maybe, you know, there's cases,
maybe the outcome here is there are cases in District Court
that, you know, settle for or resolve
whether through trial or settlement,
for more than the $50,000.
And I think that's okay.
That's exactly why the legislature
granted concurrent jurisdiction.
-: So isn't this like an end around the statutory amount?
I mean, aren't you just,
what's the point of having a statutory amount?
-: So again, I think the point is that
reasonably likely to recover, right?
So there needs to be some implementation of that standard.
So in this case, if we don't add a second plaintiff,
it's reasonably likely that the single plaintiff-
-: But you do add a second plaintiff.
-: Yeah. Three months later.
-: Yes, but that's what's gonna happen.
It's gonna be reasonably likely to go over $50,000.
What's the point?
I mean, you're going around that by starting with one.
If you wanna stay in District Court,
all you have to do is put in one plaintiff,
put in the statement of damages, you can low ball it,
and then you can have your trial in District Court
where it seems you're fairly successful.
-: Well, one, I would suggest, you know,
we put in a statement of damages
that reflect to the facts at that time, right?
That we weren't like-
-: No, that's fine. -: Yeah, yeah.
-: But that, it ends up being a sort of a strategy
to stay in District Court.
And so that's what people can do.
-: You can spin that either way, right?
I mean, you know, we could have filed in Superior Court
and they would, you know,
they could argue that we, you know,
we weren't reasonably likely to exceed $50,000.
That's something we face all the time
on the plaintiff's bar.
You know, you're always gonna get an argument
one way or the other, it doesn't matter.
So to suggest that somehow we're trying to evade,
you know, it's just a-
-: Well, I'm only saying that because you are, right,
because you said that you shouldn't look at anything else
except the initial statement.
-: Well, that's what the statute says.
It suggests that the plaintiff who brings the complaint
and look at the statement of damages.
It also then-
-: Statute doesn't say
only look at the plaintiff's statement of damages.
-: It says, look at the statement of damages.
And then it also says
the defendant can also submit
a counter statement of damages.
And then when it comes up on appeal,
then it can re-reassess based on the entire record.
So it seems to me that the interpretation
that the judge below gave
of just looking at the statement of damages
of the plaintiff and that alone,
that seems to me an improper interpretation of the statute.
And maybe we use 211 section three, paragraph two
in order to correct that obvious misunderstanding
because of the consequences
that Justice Kafker is pointing out
of being in that wrong form.
-: Well, even under that scenario,
would not the proper path have been
to go through 231 section 108.
That would've been the proper path so.
-: That would've been the proper path.
-: Yes, which didn't occur here.
So, you know, as, as far as we sit here today,
whatever, you know, path we should have taken,
I think it's clear that the path should have been 108.
-: That's fair.
But there's another, as Justice Wendlandt just pointed out,
we can decide it under paragraph two.
-: I just am not sure that that issue is presented here
with the two plaintiffs.
I don't see how that's an issue.
-: It is.
You've now alerted us to sort of the bigger issue.
Not you personally.
The cases alerted us to a bigger issue so,
which is this whole question of
starting class actions in District Court.
And because you only have one person at the time,
but then the number could go staggeringly up.
That presents an interesting legal issue.
-: And again, under the,
I would suggest, I know, you know,
we've gone back and forth here a little bit on this,
but you know-
-: Actually we are.
Thank you very much, we're two minutes over.