[00:00:10] Speaker 04:
Thank you, Judge Christin.

[00:00:12] Speaker 04:
My name is Edward Holt on behalf of Great American Life Insurance Company, or GALIC.

[00:00:17] Speaker 03:
I'd like to reserve... Mr. Holt, forgive me.

[00:00:20] Speaker 03:
Because I'm appearing remotely, it's very important that you get close to the microphone or I'll not be able to hear you.

[00:00:28] Speaker 04:
Yes, Judge Smith.

[00:00:30] Speaker 03:
Thank you, sir.

[00:00:31] Speaker 04:
You're welcome.

[00:00:34] Speaker 04:
I would like to reserve seven minutes for rebuttal.

[00:00:36] Speaker 02:
If you just keep an eye on the clock, you can reserve as many minutes as you want.

[00:00:40] Speaker 04:
Thank you, Your Honor.

[00:00:41] Speaker 02:
You bet.

[00:00:43] Speaker 04:
My friends concede on the other side that the District Court must be reversed and remanded in light of this Court's intervening decision in small v. Allianz life.

[00:00:56] Speaker 04:
The only point of disagreement today is whether this Court should remand with instructions to the District Court.

[00:01:05] Speaker 04:
based on a new theory of class certification that the leaves would like to assert down below.

[00:01:11] Speaker 04:
But this court should not reverse and remand or should not give any instructions for two reasons.

[00:01:23] Speaker 04:
The giving the instructions make no sense.

[00:01:25] Speaker 04:
The district court has the discretion to manage its own docket and in fact giving the instructions requested by the lease would in fact be counterproductive.

[00:01:36] Speaker 04:
But if and the second reason why the lease instruction should not be given is that their new theory does not address the hurdles set forth in small for class certification under Rule 23B2 or under Rule 23A.

[00:01:58] Speaker 02:
Can I interrupt you here and ask whether you read the pleadings the same way I do or the papers?

[00:02:05] Speaker 02:
brief file on appeal.

[00:02:07] Speaker 02:
It seems to me that the leads are requesting permission to seek a different remedy but are not suggesting that they would redefine their class.

[00:02:17] Speaker 02:
Is that how you read this?

[00:02:20] Speaker 04:
Yes, Your Honor.

[00:02:20] Speaker 04:
In their answering brief, they do not suggest a different class definition, which is one of the reasons why this declaration does not overcome the dispositive hurdles set out in the small case and has confirmed

[00:02:35] Speaker 04:
in the court's later decision in Farley versus Lincoln benefit.

[00:02:40] Speaker 02:
Because it doesn't exclude folks who intentionally let their life insurance policies lapse?

[00:02:45] Speaker 04:
That's one of the reasons, Your Honor.

[00:02:47] Speaker 02:
What's the other reason?

[00:02:49] Speaker 04:
The other reason or reasons is it doesn't satisfy the typicality requirement, which

[00:02:56] Speaker 04:
in part, correct.

[00:02:59] Speaker 04:
So with respect to the other reasons unrelated to intentional lapsers is to why as the declaration they are seeking and with the class they have defined does not satisfy Rule 23B is that it doesn't serve a useful purpose

[00:03:16] Speaker 04:
And of course the appropriate respecting the entire class is related to the intentional lapsers.

[00:03:23] Speaker 04:
But the useful purpose and the finality requirement under Rule 23B2 are not satisfied by what they are asking.

[00:03:32] Speaker 04:
And of course they are relying on this court's post small decision in CINO to avoid the point made in small and in Farley

[00:03:43] Speaker 04:
that a declaration cannot, does not satisfy Rule 23B2 because of the causation element.

[00:03:53] Speaker 04:
And so they're trying to limit it to simply declaring that there was a violation of the statutes by Great American.

[00:04:00] Speaker 02:
I've been trying to think of a hypothetical where they would be allowed to go forward seeking a remedy.

[00:04:07] Speaker 02:
In other words, to follow up on the language in Sino or Sino, however it's pronounced, maybe Judge Smith will tell us.

[00:04:13] Speaker 02:
that they would be seeking a declaration that would be beneficial to the whole class.

[00:04:20] Speaker 02:
In other words, to use the analogy in the Sino case where they would be seeking a declaration they could use as a shield as opposed to a sword to assert an affirmative breach of contract claim.

[00:04:31] Speaker 02:
And it seems like a kind of a silly hypothetical, admittedly.

[00:04:37] Speaker 02:
But I guess maybe there could be a circumstance if they'd actually

[00:04:40] Speaker 02:
a scenario where a life insurance company actually had paid out a policy and was actually seeking to recover.

[00:04:47] Speaker 02:
But even then I think it gets to be really strange, right, because we've made so clear that there's no universe in which planes could go forward and under these California statutes without paying all of the premiums that were due.

[00:05:01] Speaker 02:
So I don't know where it would ever arise that this hypothetical shield sword kind of analogy

[00:05:08] Speaker 02:
would come into play in a life insurance contract.

[00:05:28] Speaker 02:
they have a defense to a breach of contract claim against them, using it defensively.

[00:05:34] Speaker 02:
It just doesn't work here, and it sure wasn't a class action in Sino.

[00:05:38] Speaker 02:
So there's a couple ways this just seems like a square peg and a round hole to me.

[00:05:41] Speaker 04:
You're exactly right, Your Honor.

[00:05:43] Speaker 04:
And in fact, the Lees here aren't even suggesting that they would use this

[00:05:48] Speaker 04:
declaration as a shield.

[00:05:51] Speaker 04:
They are very explicit that it would then allow class members if they so choose or chose to pursue a breach of contract claim.

[00:06:01] Speaker 02:
Let me ask you this.

[00:06:01] Speaker 02:
They haven't, I don't think they ever came out and told us, we're going to hear in a minute from opposing counsel, but my first question was do you read these briefs the way I do which I don't hear them saying on remand we should be able to take another run at redefining our class.

[00:06:17] Speaker 02:
Now, if they wanted to do that in order to comply with small, that seems like it might be workable.

[00:06:23] Speaker 02:
But setting that aside for a minute because they even said they want to do that, your take on the correct outcome here is for us to simply vacate this ruling because this ruling can't stand.

[00:06:35] Speaker 02:
The parties agree upon that and remand and say nothing more.

[00:06:38] Speaker 04:
Correct, Your Honor.

[00:06:39] Speaker 04:
All right.

[00:06:39] Speaker 04:
But it, I'm sorry, Your Honor.

[00:06:41] Speaker 02:
Not at all.

[00:06:42] Speaker 02:
I didn't mean to cut you off.

[00:06:43] Speaker 04:
Okay.

[00:06:43] Speaker 04:
If the court is interested in the merits or decides it would be helpful to give any instructions, though, as we state in our briefs, the instructions should be that this is a non-starter.

[00:06:56] Speaker 04:
And so even if they... What's a non-starter?

[00:06:58] Speaker 02:
They're requested relief?

[00:06:59] Speaker 04:
Correct.

[00:07:00] Speaker 04:
This new, narrower declaratory relief is a non-starter.

[00:07:03] Speaker 04:
It cannot satisfy 23A typicality or the requirements in

[00:07:10] Speaker 04:
B2.

[00:07:11] Speaker 04:
And specifically, even if they tried to redefine the class, here's the real practical reason why this declaration they're seeking does not advance their theory at all.

[00:07:25] Speaker 04:
What they've asked for is that there be a declaration that Great American violated the statutes.

[00:07:31] Speaker 04:
Well, there are two statutes here with multiple subparts with varying requirements.

[00:07:37] Speaker 04:
If, for example, a class member, Cassie the class member, took that declaration into LA Superior Court, attached it to a complaint for breach of contract, that class member would still have to establish breach.

[00:07:53] Speaker 04:
What provision was breached?

[00:07:56] Speaker 04:
because you cannot then establish causation unless you know what the breach was that caused the policy to lapse.

[00:08:05] Speaker 04:
Right.

[00:08:05] Speaker 04:
And the evidence that would be required for these breaches vary whether it was.

[00:08:11] Speaker 02:
So I'm going to interrupt you because I understand from your briefing your client doesn't claim to have satisfied either one of these two statutes and I don't read these briefs to require us to get to this level of detail at all today.

[00:08:21] Speaker 02:
But that's just – I'm only one of three.

[00:08:23] Speaker 02:
Let me just check in with my colleagues and see if they have other questions along these lines.

[00:08:28] Speaker 03:
I have a brief question for Mr. Holt.

[00:08:32] Speaker 03:
Is it – I know it's your position that were the merits considered and we were to send it back, that the – a class certification seeking an error of deflation and declaratory relief would be foreclosed.

[00:08:49] Speaker 03:
That I get.

[00:08:50] Speaker 03:
But what do you think we should do here?

[00:08:53] Speaker 03:
Should we remand at the district court?

[00:08:55] Speaker 03:
What disposition are you seeking?

[00:08:58] Speaker 04:
Yes, Your Honor.

[00:08:59] Speaker 04:
The disposition is a reverse and remand with no instructions.

[00:09:04] Speaker 04:
The district court can then allow the case to proceed in the ordinary course.

[00:09:09] Speaker 04:
And if the Lees want to ask the district court to allow

[00:09:14] Speaker 04:
a third, if not fourth opportunity at class certification.

[00:09:19] Speaker 04:
The district court has the discretion to control her docket to do that without instructions from this court.

[00:09:28] Speaker 03:
So you would not recommend that we comment that narrowing the deck relief is foreclosed?

[00:09:37] Speaker 04:
I would say it this way, Judge Smith.

[00:09:39] Speaker 04:
If the court is going to comment at all, we would want that comment.

[00:09:44] Speaker 03:
OK, that's only if we reach the merits.

[00:09:46] Speaker 04:
Correct, Your Honor.

[00:09:47] Speaker 03:
OK.

[00:09:48] Speaker 04:
I'll reserve the remainder of my time for rebuttal unless there are additional questions.

[00:09:51] Speaker 02:
Hold on.

[00:09:51] Speaker 02:
Do you have any questions at this point?

[00:09:53] Speaker 02:
OK, that's fine.

[00:09:54] Speaker 04:
OK, thank you.

[00:09:55] Speaker 02:
You bet.

[00:09:55] Speaker 02:
We'll hear from opposing counsel, please.

[00:09:59] Speaker 01:
Good morning, Your Honors.

[00:10:01] Speaker 01:
May it please the court, John O'Loughian for Appellee's Belize.

[00:10:04] Speaker 01:
And I want to thank you for accommodating and allowing me to appear remotely.

[00:10:09] Speaker 03:
Excuse me.

[00:10:10] Speaker 03:
Forgive me.

[00:10:11] Speaker 03:
As I said to your colleague,

[00:10:13] Speaker 03:
I can't hear you very well unless you get close to your microphone.

[00:10:17] Speaker 01:
Okay, is that better?

[00:10:18] Speaker 03:
Not much, but do what you can.

[00:10:20] Speaker 01:
Okay, I'll try to speak up.

[00:10:24] Speaker 01:
So although the Pellies disagree with the holding and small, we do recognize that this court is bound by that decision.

[00:10:32] Speaker 01:
And now hearing my friend's arguments on the other side, we actually do agree and we think that the court should reverse and remand to the district court also with no instructions.

[00:10:46] Speaker 01:
I understand in our brief, we had asked for instructions that we could move for a class certification on a more narrow ground.

[00:10:53] Speaker 01:
But if this court is inclined to just reverse Merman without any instructions, we would be agreeable to that as well.

[00:11:01] Speaker 01:
What we would ask, though, is that the court not include any directions that would prohibit the district court from using its discretion to determine whether a different class could be certified within the parameters of small, as is within the district court's right under Rule 23C1C.

[00:11:22] Speaker 02:
Can I stop you there?

[00:11:23] Speaker 02:
Now you're talking about redefining the class.

[00:11:27] Speaker 02:
That is not what you talked about in your briefing.

[00:11:30] Speaker 02:
And I think opposing counsel agrees that that's something that may be fair game on remand.

[00:11:34] Speaker 02:
I read your briefing to talk as the way I think Judge Smith did to suggest that you could seek a different remedy.

[00:11:40] Speaker 02:
And in particular, I think you're relying on what I'll call a sound bite from Sino that seems to be taken out of context.

[00:11:48] Speaker 02:
I'd be a little concerned about not mentioning that in our remand order, or else you're going to be right back here, I'm afraid.

[00:11:55] Speaker 01:
I appreciate that, Your Honor.

[00:11:56] Speaker 01:
So I think that we would ask to be permitted to redefine the class on remand.

[00:12:03] Speaker 01:
So we use that.

[00:12:05] Speaker 01:
I understand how the briefing reads.

[00:12:07] Speaker 01:
But we kind of use that after reading CINO as one example, as a way that could possibly be moved forward on class certification.

[00:12:16] Speaker 01:
However, as I stand before you today, all we're asking is that the district court not be handcuffed from making these determinations on the first instance, should they decide that there could be a more narrow class certification that does not violate small?

[00:12:33] Speaker 01:
Or should discovery, for example, reveal information that would allow a class to move forward that does not involve the causation issue or violate small?

[00:12:46] Speaker 01:
And so that's what we're asking for.

[00:12:51] Speaker 01:
And Your Honor, if I can.

[00:12:55] Speaker 01:
You kind of were saying that you were looking for kind of a hypothetical in the beginning of your argument.

[00:13:03] Speaker 01:
And so one hypothetical that we've kind of thought about is, for example, if we were to move for class certification solely on, just as an example, that the defendants violated the statutes and not seek any remedies or damages.

[00:13:19] Speaker 01:
We do think that that would have value here.

[00:13:22] Speaker 01:
And as an example, if you were to compare it to

[00:13:26] Speaker 01:
a product's liability, failure to warn theory, for example, if there's a failure to warn that warnings were not given or warnings were somehow inadequate and that there was a declaration as to that element of the product's liability, then the plaintiff only has to prove that they would have acted differently had they received that warning or an adequate warning.

[00:13:48] Speaker 01:
And so that does get the case further along.

[00:13:51] Speaker 01:
And so similarly here, if there's

[00:13:55] Speaker 01:
a declaration that the defendants violated the statute, there's still going to be an issue, an argument over whether there's substantial compliance or strict compliance with the statute.

[00:14:06] Speaker 01:
And so we would argue that that would still get the case further along.

[00:14:10] Speaker 01:
And in CINO, for example, if the court found that it was useful for those two individuals to have a declaration of their rights and their relationship with the defendant, then shouldn't it be up to the district court that's managing this litigation to determine whether it's useful for these 10,000 potential plaintiffs in the class

[00:14:34] Speaker 02:
Can I interrupt you here?

[00:14:37] Speaker 02:
I appreciate your argument.

[00:14:38] Speaker 02:
It's the one in your briefing.

[00:14:39] Speaker 02:
We know this argument.

[00:14:41] Speaker 02:
But my question is how is any of that permissible after small and sign-up?

[00:14:47] Speaker 01:
Because if there's a declaration that the defendant violated the statute, then we don't need to get into the causation issue, right?

[00:14:56] Speaker 01:
We're just saying there's a declaration that they didn't serve the appropriate notices required under the statute, and that's it.

[00:15:03] Speaker 01:
We're not asking any, we wouldn't be moving for a class certification.

[00:15:07] Speaker 01:
as to any remedies or damages so we wouldn't be getting into the intentional versus unintentional lapse.

[00:15:15] Speaker 01:
That could still be litigated later, individually, but we still think that potentially, as an example, that could be one narrower class that could move the litigation forward

[00:15:26] Speaker 01:
and could be worthwhile, which was stated in CINO that there is value in the declaratory relief causes of action.

[00:15:33] Speaker 01:
And just giving a declaration of the party's right.

[00:15:36] Speaker 00:
Council, I think the problem with the argument is the Supreme Court in Dukes said that you only get 23b to certification if the relief sought would benefit all members of the class at the same time.

[00:15:47] Speaker 00:
And if you've got class members who are never going to benefit from any sort of relief because they don't now fall within the scope of what could be

[00:15:56] Speaker 00:
a claim after small, then I don't understand how Dukes can be satisfied and how 23B would apply.

[00:16:04] Speaker 02:
Because they'd have to show causation, right?

[00:16:06] Speaker 02:
They'd have to show causation after small and small.

[00:16:08] Speaker 00:
If there's a group of people who can't prevail on a claim because they're never going to show harm, then it does them no good to get a declaration that there was a statutory violation.

[00:16:19] Speaker 00:
They weren't harmed by it.

[00:16:22] Speaker 01:
I think that would be left up to the district court for further litigation.

[00:16:26] Speaker 01:
Why?

[00:16:26] Speaker 00:
Why is that the case after Small?

[00:16:29] Speaker 01:
Because Small hasn't...

[00:16:31] Speaker 01:
foreclosed the ability for these people to still prove that they have been caused harm by this.

[00:16:36] Speaker 01:
It simply says that there's not a debt.

[00:16:39] Speaker 01:
We can't have a declaration without proving that cause, but we can still go forward and prove that causation element.

[00:16:46] Speaker 01:
So having a declaration that there's a violation moves the case forward because then all we have to do is prove causation.

[00:16:52] Speaker 03:
And if you're not respectful, you're not answering my colleague's question.

[00:16:58] Speaker 03:
How is everyone in the class being treated the same?

[00:17:02] Speaker 01:
Because everyone in the class would have had their policy terminated without receiving the notices that are required under the statue.

[00:17:13] Speaker 02:
But as you've defined the class, it includes people who voluntarily let their policies lapse.

[00:17:19] Speaker 01:
So we would need, so we would recognize that potentially the district court would need to decide whether we would need to redefine the class to not include those people and if there is a way forward to do that.

[00:17:30] Speaker 01:
And so therefore we ask that this court not include any instructions saying that small has completely foreclosed any type of future class action.

[00:17:40] Speaker 03:
So you're really back to where you started.

[00:17:45] Speaker 03:
If I understand it correctly, I heard you say,

[00:17:48] Speaker 03:
You may want to get into the merits, but you're fine if we just remand without instructions because you think you can conjure a new class effectively, notwithstanding with all the members of this panel have raised.

[00:18:00] Speaker 03:
Is that right?

[00:18:02] Speaker 01:
respectfully your honor we we believe that that right should be left to the district court in the first instance should there be issues that are raised that are not currently before this court.

[00:18:14] Speaker 01:
You know we think that if we get so yes your honor we would ask that this court reverse and remand with simply no instructions

[00:18:22] Speaker 01:
Any further instructions that small completely forecloses class certification would be, I think, taking small too far and ask the court to make decisions on issues that are hypothetically hypothetical and not currently before this court.

[00:18:37] Speaker 01:
We would submit that there's no basis in this record for such a broad sweeping order.

[00:18:41] Speaker 01:
such a direction would not be consistent with the discretion of the district court to decide certification questions in the first instance especially when there's been a change in the law because this this district court certification order of course was issued before small was was issued so we think that the district court should have a right in managing cases that should some hypothetical

[00:19:07] Speaker 03:
class come up that could be certified under small that it let me put it to you this way if we send this back to the district court without instructions what hypothetical change in the class would you propose that satisfies what I believe to be the concerns of every manner member of this panel why wouldn't you be right back here without any benefit

[00:19:31] Speaker 01:
So what to answer your question is, I don't know that, Your Honor, because we don't necessarily have an idea of what we would move to certify right now.

[00:19:40] Speaker 01:
We still have to go through the discovery.

[00:19:42] Speaker 01:
There's still potentially things that could come up.

[00:19:45] Speaker 01:
We're just saying, in the future, there may be a possibility that there could be a class that could be certified.

[00:19:53] Speaker 01:
And so we just simply ask this court to revert to our man with no instructions.

[00:19:59] Speaker 03:
So basically, you're

[00:20:01] Speaker 03:
You want to go back and try a little fishing expedition and see what you can catch.

[00:20:08] Speaker 01:
We want to go back, Your Honor, and we want to be able to litigate the case without any parameters that would permit potential future class actions that may be valid and may not go against Small and Farley.

[00:20:24] Speaker 02:
Anything further?

[00:20:25] Speaker 02:
Judge Smith, Judge Forrest, it doesn't look like we have further questions.

[00:20:29] Speaker 02:
Counsel, thank you for your argument.

[00:20:30] Speaker 02:
We'll hear rebuttal.

[00:20:32] Speaker 04:
Thank you, Your Honor.

[00:20:41] Speaker 04:
Just briefly, the Lees invited the discussion that we're having today by suggesting in their answering brief that the court provide instructions on remand, but obviously have since apparently changed their decision either after seeing the reply brief or otherwise.

[00:21:01] Speaker 04:
There have been unable to articulate in response to several questions as to how they could, under any circumstances, get around the preclusive effects of small and Farley.

[00:21:15] Speaker 04:
And CINO simply is not the intervening case that would allow another shot at class certification.

[00:21:24] Speaker 02:
Do you still want us to remand without any clarification?

[00:21:29] Speaker 04:
Well, based on the panel's concerns that I've heard today, I think it would be helpful for the panel to provide the instructions so that we aren't back here.

[00:21:44] Speaker 04:
Lees and the original class plaintiff who filed this case, originally Mr. Tavikolian, they had two opportunities at class certification.

[00:21:54] Speaker 04:
Even when the district court denied the B3 class, the district court gave the Lees leave to find a class rep to represent that class, that subclass or class.

[00:22:07] Speaker 04:
So now they're asking for this fourth opportunity without, as Judge Smith said, really in a fishing expedition.

[00:22:14] Speaker 02:
So, Council, how would you have us clarify?

[00:22:18] Speaker 02:
I don't hear you saying that we should be putting any restraints on how they might want to redefine their class on remand.

[00:22:23] Speaker 02:
This is about, I think, the reading, the correct reading of what happens after small and Sino and how that can satisfy B2, right?

[00:22:32] Speaker 02:
And they're going to need to show causation.

[00:22:35] Speaker 04:
correct your honor, and that the declaration that they have requested in their answering brief does not satisfy a 23a?

[00:22:42] Speaker 04:
I appreciate that counsel.

[00:22:44] Speaker 02:
I think we've all covered that that's not correct.

[00:22:47] Speaker 02:
So I'm trying to figure out what your best shot is at what clarification you think we ought to be giving.

[00:22:52] Speaker 02:
Again, I probably wasn't clear, but that's what I'm trying to get at.

[00:22:55] Speaker 02:
I don't hear you saying that we need to say anything about how they may or may not want to try to redefine their class to exclude people who voluntarily allowed their life insurance policies to expire.

[00:23:05] Speaker 02:
I think she's pretty well conceded that point, opposing counsel has, and I just don't hear her pushing back on that.

[00:23:11] Speaker 02:
But the problem seems to be on the back end, the notion that a declaratory relief action could still be of benefit under B2 to members of the class who would not have to show causation.

[00:23:23] Speaker 02:
Do you agree or do you think we're missing a need to do something else to provide guidance on remit?

[00:23:28] Speaker 04:
No, Your Honor.

[00:23:28] Speaker 04:
How you have articulated it, that would be the instructions that should be given if instructions are given.

[00:23:35] Speaker 00:
So I have a follow-up question to that, and that is, procedurally, is it even proper for us to do that?

[00:23:40] Speaker 00:
So normally, we have a presentation of a class definition and what the class wants given to the district court.

[00:23:47] Speaker 00:
The district court considers it makes a decision, and we review that.

[00:23:50] Speaker 00:
And here, we've got a presentation that was made to the district court, a change that is presented to us in the first instance about what this class is and what it wants, or I guess mostly what it wants.

[00:24:02] Speaker 00:
Is it proper for us in the first instance to start tinkering around with changes to?

[00:24:08] Speaker 00:
This class or should we send that back to the district court?

[00:24:13] Speaker 04:
Your honor, I guess I would wouldn't describe the instructions that we would propose as being tinkering around if the panel would be saying them in reaction to a

[00:24:25] Speaker 00:
the plaintiffs in their briefing saying, we're now going to narrow the relief that we want.

[00:24:30] Speaker 00:
Isn't that a tinkering of what was presented to the district court and that's not been presented by a motion or it's just in briefing?

[00:24:37] Speaker 04:
Excuse me, Your Honor.

[00:24:38] Speaker 04:
I misunderstood your question.

[00:24:40] Speaker 04:
It is tinkering by the liees.

[00:24:43] Speaker 04:
I would not have viewed that as tinkering by this panel to address what they have now presented to the court.

[00:24:49] Speaker 00:
Because one thing we could just do is say, we recognize that the plaintiffs have asked us to

[00:24:55] Speaker 00:
have a narrower scope of what this class wants.

[00:24:57] Speaker 00:
We just don't think that that's appropriately presented to us.

[00:25:00] Speaker 00:
And if the plaintiffs want to pursue that, they should present it to the district court in the first instance.

[00:25:04] Speaker 00:
I'm just wondering about whether we're stepping out of our role as a court of review and if we say anything on this new narrowing becoming a court of first instance.

[00:25:15] Speaker 02:
I wasn't suggesting that.

[00:25:17] Speaker 02:
What I'm suggesting is that, and I'm sorry if I sounded like a tinkerer.

[00:25:22] Speaker 02:
What seems to me to be the problem is at the top of the argument, I was saying I think there's a sound bite from one of our published opinions that's being misapplied here, misunderstood.

[00:25:32] Speaker 02:
So the clarification I was suggesting is that we clarify what that sound bite does or does not mean in Sino and leave it at that.

[00:25:41] Speaker 04:
I think you certainly have the ability to do that, Your Honor.

[00:25:46] Speaker 02:
Okay.

[00:25:46] Speaker 02:
I think I misspoke earlier if I caused confusion.

[00:25:49] Speaker 02:
Judge Smith, do you have anything further?

[00:25:51] Speaker 02:
Nothing further.

[00:25:53] Speaker 02:
Judge Forrest, do you have anything further?

[00:25:55] Speaker 02:
Okay, I think we're done.

[00:25:56] Speaker 02:
Thank you ever so much for both of you.

[00:25:57] Speaker 02:
We appreciate your arguments.

[00:25:59] Speaker 02:
We'll take that matter under advisement.

[00:26:01] Speaker 02:
Thank you.