[00:00:00] Speaker 01:
Good morning, Your Honors. I'd like to reserve three minutes for rebuttal, if I may.

[00:00:10] Speaker 01:
May it please the court, I am Eric Allen Isaacson. I am a member of the bar of this court, but am appearing pro se in this case as a class member who objected to the settlement below and took an appeal.

[00:00:25] Speaker 01:
From the letter that you sent asking us to focus, The first issue I guess I need to address is appealability of the orders with respect to sealing of the record. I think that the rule is under the collateral order doctrine. that a order is final and immediately appealable if it conclusively determines the disputed question, resolves an important issue completely separate from the merits, and is effectively unreviewable on appeal from a final judgment.

[00:01:02] Speaker 01:
Now, the context of the orders I'm sealing in this case is that they were in response to a motion that I filed for leave to intervene in order to unseal the record.

[00:01:18] Speaker 02:
Right, and intervention was granted, and the motion... Intervention was granted. And then on the merits, your motion was denied. Now, under our precedent, wouldn't you have had the ability to take an immediate appeal of that order?

[00:01:31] Speaker 01:
If... Under the collateral order. I don't think so. I mean, an order that denies a motion to intervene as a matter of right is immediately appealable. the Supreme Court has held since even before it articulated the collateral order.

[00:01:45] Speaker 02:
But if the sealing order, would that have been appealable under the collateral order?

[00:01:50] Speaker 01:
I don't think so, Your Honor, because the sealing order was in the context of, well, for one thing, the court kept the documents sealed. The case law is clear that if an order requires materials to be unsealed so that they become public, because the bell can't be unrung. Once something's made public, it's public.

[00:02:12] Speaker 04:
Mr. Isaacson, I think that's maybe a good argument as a matter of first impression, but that ship has sailed under our cases. We've said repeatedly that orders sealing or unsealing are collateral orders. I take your 28J this morning to point to Center for Auto Safety that Intervention might have had something to do with that, but we don't say anything about that there. We say simply that we have jurisdiction because an order to unseal or seal documents is appealable.

[00:02:45] Speaker 01:
The facts of that case were that there were both a motion to intervene, which was denied, and it was a motion to intervene to unseal the materials.

[00:02:54] Speaker 04:
But the holding of the case seems to be what's binding us here.

[00:02:58] Speaker 01:
Well, the holding of the case is, I think, ambiguous because it was a final order in that case in that the court, Ian, saying that you cannot intervene to unseal these documents is on the intervention motion dealing with an order that's immediately appealable. And the whole purpose of the intervention was to unseal the documents. So the court first addressed the unsealing of the documents. I think that's materially different from a case where you've got somebody who is a party to the case, which I am now, once the motion to intervene was granted.

[00:03:39] Speaker 01:
And the order is one that is dealing with issues that are going to the motion for settlement approval, which is going to be coming up, and it ought to

[00:03:52] Speaker 04:
But a lot of these details, at least as I take – correct me if I'm wrong, but as I take our collateral order doctrine, we kind of approach it kind of jot for jot as a matter of clarity is that once we say that an order is collateral, it's – always going to be collateral no matter the posture no matter the other the other facts there we just take it as uh collateral this was an order that fit the box that we've described as collateral in the past so it's collateral well you know an order on a motion to intervene is collateral if it's collateral and appealable if it's denied and not collateral and appealable if it's granted is there any way that this could i know with uh interlocutory uh orders and there's a way that they merge into the judgment.

[00:04:40] Speaker 04:
We have cases in terms of denial of qualified immunity where somehow there might be a merger because eventually the merits will arise again. And in your case, I see your point there, making that these merits are connected in this particular order to unseal.

[00:04:58] Speaker 04:
Does that have any application here in the collateral order context?

[00:05:01] Speaker 01:
Yeah, I think it does in the context of this, you know, this case and these issues.

[00:05:07] Speaker 04:
I also think it's important to note... Well, where have we held that, that with respect to a collateral order, that it can come back around and we have a chance to review it at the back end after a final judgment?

[00:05:23] Speaker 01:
I think one of the cases in your focus letter actually said that. It was a context of collateral order, and the usual rule was applied to it.

[00:05:34] Speaker 02:
How does the order denying the request to unseal merge into the final judgment? How would a reversal on the order with respect to unsealing cause the judgment to be set aside?

[00:05:54] Speaker 01:
Could you say that again, Your Honor?

[00:05:56] Speaker 02:
How does it merge into the final judgment? An order doesn't merge into the final judgment unless it contributes something to it or creates a ground for setting it aside. How does the sealing order, suppose we agree with you that it should have been unsealed, how does that disturb the final judgment and require setting it aside?

[00:06:13] Speaker 01:
I think it requires the final judgment to be set aside because important information was sealed from the public and from class members unless... They contacted class counsel, and class counsel told them, well, you can see it if you sign a protective order, and they signed the protective order. Now, I'm not willing to sign a protective order because I think that the sealing order in this case is unlawful. I'm not going to participate in the unsealing.

[00:06:40] Speaker 01:
I think that the settlement approval has to be – reversed as well, Your Honor.

[00:06:45] Speaker 02:
So on the settlement approval, when you filed objections, you know, the district court had made a preliminary determination with respect to the elements of Rule 23 pertinent to class certification. You then filed objections, and as I understand it, and correct me if I'm wrong, the only objection you raised was adequacy. But then now you're on appeal, you're saying the district court didn't do a sufficient analysis on all these various elements of Rule 23.

[00:07:17] Speaker 02:
Do I have that correct? Well, I think that my objection covered a number of things, including the question of sealing, that you can't be... Oh, no, you had many objections, but I'm saying with respect to whether the elements of Rule 23 were satisfied to certify a class, the only objection you raised to that issue was adequacy.

[00:07:42] Speaker 01:
I focused on adequacy. Yes, that's true.

[00:07:45] Speaker 02:
I did not anticipate... How did you preserve any objection to the adequacy, so to speak, of the district court's analysis of the class certification issue?

[00:07:57] Speaker 01:
Well, I expected that the district court was going to follow the law and would do the findings that are required. It has an independent duty to do that.

[00:08:05] Speaker 02:
Are you saying that it's not permissible in a final approval of the class settlement and class certification... to essentially refer back to an earlier ruling that you made that has more detailed analysis and say, I don't find grounds, and that's reaffirmed? Is that inadequate? You have to do all the bells and whistles and dot the I's and cross the T's in the final order?

[00:08:28] Speaker 01:
Well, in this case, there was no rigorous analysis in the preliminary order.

[00:08:32] Speaker 02:
But you didn't object to that. See, if you had raised all the points you're raising now to the preliminary order, it might have gotten fixed in the final order. But essentially, you raised one ground, and now you're coming up here and you say, I get to raise all these grounds, even though all your objections you now say are equally applicable to the earlier order.

[00:08:54] Speaker 01:
It's not objectionable that a preliminary order is far more cursory than a final class certification order. So there was not something for me to object to in terms of the court not having done the rigorous analysis. That was something that was required to do at final certification.

[00:09:10] Speaker 02:
But the rule requires for... for the preliminary certification and for sending out the notice to the class that sufficient information be presented so that the court knows that it is likely that class certification will be met. That's why we see a preliminary analysis in the order as you see in all of these cases. And if you thought that the analysis was deficient, Then as an objector, it was incumbent upon you to say in what respects it was. And you're now raising objections that you have conceded were equally applicable to the prior order.

[00:09:43] Speaker 01:
Well, they were applicable to the prior order if a rigorous analysis had been required at the preliminary stage. I don't believe the president support that. The Sixth Circuit's opinion in Wayside Church addresses this issue, I think, very effectively. Okay.

[00:09:57] Speaker 02:
We took you over with questions, so I'm going to give you your three minutes for rebuttal.

[00:10:01] Speaker 01:
Okay.

[00:10:02] Speaker 02:
All right.

[00:10:02] Speaker 01:
Thank you very much, Your Honor.

[00:10:03] Speaker 02:
We will hear first from Mr. Robb.

[00:10:08] Speaker 00:
Okay.

[00:10:14] Speaker 00:
Good morning, Your Honors. May it please the Court, Stephen Robb, on behalf of plaintiffs appellees.

[00:10:22] Speaker 00:
Mr. Isaacson's arguments are largely academic and serve no purpose other than to delay the settlement rather than to improve it.

[00:10:32] Speaker 00:
With respect to the focus questions, those are largely in the area that defendants will address to this Court. However, there are two aspects of it that I do want to address, and those are whether under the collateral order doctrine, the unsealing order decided a question separate from the merits, and then whether it merged into the judgment. I think those are related. And I want to emphasize the distinction between Mr. Isakson's argument on the one hand that the public was entitled to full access to all information in the documents filed with the court.

[00:11:07] Speaker 00:
And on the other hand, his argument that class members needed certain information related to the settlement on an unfettered basis, that they could not have to sign a protective order, and that it was an abuse of discretion for the district court to balance the interest in the way that it did.

[00:11:28] Speaker 00:
Because those issues are separate, That supports the finding of a collateral order.

[00:11:35] Speaker 00:
Public access is very different from class members' ability to evaluate whether to participate in a settlement or whether to opt out. The information that he was seeking was not helpful to class members in the process of doing so. Mr. Isaacson himself knew enough to be able to submit a claim.

[00:11:54] Speaker 00:
If any class member were interested... Well, I mean...

[00:11:59] Speaker 02:
This case, it's interesting because we have two very similar cases involving similar practices, different defendants. The level of ceiling in this case is a lot higher than in the other case. And, you know, his argument, as I understand it, is that I shouldn't have had any conditions on my access to this information. The conditions were placed on it. Therefore, I didn't have that information. And having it might provide additional grounds for...

[00:12:28] Speaker 02:
Challenging the settlement and therefore grounds for disturbing the settlement and so it merges. Why is that argument wrong?

[00:12:37] Speaker 00:
For one I believe he has forfeited that argument mr Isaacson is fully capable of Signing a protective order to access the information for purposes related to the settlement evaluation suppose He thinks that requiring him to sign the protective order is unlawful.

[00:12:52] Speaker 02:
That's exactly what he just said. I

[00:12:53] Speaker 00:
Correct, but he is not the sole arbiter.

[00:12:56] Speaker 02:
I know, but he forfeits that objection if he signs the protective order. Then he can't present that argument.

[00:13:01] Speaker 00:
I do not believe he does. I believe he can still go to the district court, as he did, filing both an objection and a motion to unseal separately. He can still request that the court order unsealing of whatever information he wishes, and that would effectively relieve him from the protective order and at the same time request relief from the protective order.

[00:13:20] Speaker 02:
You think if he signed the protective order and saw the information, then he could request further unsealing and therefore he hasn't preserved the issue?

[00:13:30] Speaker 00:
Correct. I do not think he waives all of his arguments to public access or to his right to publish the information because that is ultimately what he wants to do. He is not interested in this information to evaluate the settlement. He wants to publish it.

[00:13:44] Speaker 02:
So let me ask you about the class settlement approval. So as I understand it, in this case, there was a hearing in connection with the preliminary approval, but no hearing with respect to final approval. It was just done on the papers. Is that correct?

[00:13:59] Speaker 00:
That is not correct. There was a final approval hearing in October at which Mr. Isaacson appeared. But the court carried it over. I see. Because it wanted further information. And again, this goes against the idea that.

[00:14:13] Speaker 02:
So that there was a final one, but then there was a further issue that trailed and then that was submitted without further hearing.

[00:14:21] Speaker 00:
Correct.

[00:14:22] Speaker 00:
And the court signaled that the court was likely to do that and invited both sides to submit further papers. Mr. Isaacson argues he wasn't allowed to present oral argument, but he had presented full arguments through his attorneys and was invited to continue to do so after that hearing having heard.

[00:14:42] Speaker 04:
Mr. Rob, where would we find the rigorous analysis that we've required for 23B3 predominance factors?

[00:14:51] Speaker 00:
So rigorous analysis has to take into account the context of settlement.

[00:14:58] Speaker 00:
It does not equate to extensive written discussion of every particular issue.

[00:15:05] Speaker 00:
Both the Supreme Court and the Ninth Circuit have framed it as the duty to pay heightened attention to ensure that that class definitions are not overbroad, that they're sufficiently unified.

[00:15:19] Speaker 02:
This is pretty thin. It's one sentence in the final order and a handful of sentences in the preliminary order. I mean, that's it.

[00:15:26] Speaker 02:
Correct. That's a rigorous analysis?

[00:15:29] Speaker 00:
Well, in the record, it reflects that the court paid attention to the issues that are required to certify a class for settlement. First, we're in a case where a class was certified. The court spent extensive analysis certifying a California class.

[00:15:43] Speaker 04:
But that doesn't help with the predominance, the key predominance issue here, the differences or the potential differences between the Washington and California classes.

[00:15:51] Speaker 00:
Right. Well, the question becomes, when you expand the class to include Washington purchasers, what changes? And the court took extensive review of everything we presented about.

[00:16:03] Speaker 04:
But how do we know that?

[00:16:04] Speaker 01:
Yeah. Where in the record is that, counsel?

[00:16:06] Speaker 00:
When the court issued its inquiries, it wanted... class council to specifically address those issues, and we did both at the argument, went through all the uniformity, and then again in writing. Do you have sites to those?

[00:16:24] Speaker 00:
We can pull them from the record.

[00:16:38] Speaker 00:
So the inquiries for the hearing are at 1 ER 66.

[00:16:43] Speaker 00:
The discussion at the hearing orally is at the record 36 to 37. The supplemental written submission is at 2 ER 268 to 69.

[00:16:57] Speaker 04:
So how would you distinguish? So we have a couple of cases. We have the Hanlon case, which would invite us to take a look at it on our own. But subsequently, we've got the Mazza case in particular, where you have two different jurisdictions.

[00:17:11] Speaker 04:
Really a raft of a half dozen cases in the last decade or so where we have asked district courts to be a little more fulsome in their rigorous analysis. How do we square those?

[00:17:24] Speaker 04:
Correct, Your Honor.

[00:17:25] Speaker 00:
I think the key is, was there an abuse of discretion here?

[00:17:29] Speaker 04:
Well, all of those are abuse of discretion. And yet still, a lot of cases recently.

[00:17:33] Speaker 00:
Correct. And still, there is lots of evidence of the diligence that the district court paid attention to these issues. We agree that there's not a lot of analysis in the final approval order. It's very brief. But the record completely supports the court's findings. Even to this date, Mr. Isakson has not identified any conflict between California and Washington law. He just tries to pretend that the burden is on us to prove that there's no possibility that a Washington court and a California court in the future could come out differently on the disputed issues that were in play.

[00:18:12] Speaker 02:
Can I ask a question about this injunctive relief issue? Did the settlement provide for entry of an injunctive order, or did it just have a contractual promise that certain things would be done?

[00:18:27] Speaker 00:
I think it's the latter, Your Honor.

[00:18:29] Speaker 02:
So it was never that the district court was going to enter a formal injunction order that says you are enjoined hereby from doing X, Y, and Z?

[00:18:37] Speaker 00:
Correct.

[00:18:37] Speaker 02:
We did not request that. It's just a contractual promise we're going to do certain things. Now, maybe it could be enforced as a breach of the settlement agreement if you didn't do those things, perhaps.

[00:18:48] Speaker 00:
Perhaps, yes. But it would not – there's no court order specifying – conditions on defendant that you must do such and such. So I do not think injunctive relief is even at issue. It is just a change practice that defendants made in the course of the case and in conjunction with settlement.

[00:19:11] Speaker 00:
Are there any further questions?

[00:19:13] Speaker 02:
All right. Thank you, counsel. Okay. So we'll hear now from Mr. Powers.

[00:19:24] Speaker 03:
Thank you, and may it please the Court. I want to cover a couple of things today, and before I get to the Court's questions about appealability and jurisdiction, I want to just briefly address the merits of the sealing motion below and the unsealing motion.

[00:19:42] Speaker 03:
This comes up in the papers, but I really want to reinforce the point that the argument that Judge Thompson applied the incorrect standard to the sealing orders should just be rejected out of hand.

[00:19:56] Speaker 03:
We cited the correct compelling interest standard in our papers. The vast majority of her sealing orders use compelling or some similar language.

[00:20:06] Speaker 03:
And she was not simply rubber stamping these. The judge was going through each of the items we were asking to seal. Many of them were rejected. Many of the orders were partial. We had to ask for reconsideration on some. And so this was not a situation where the court was just rubber stamping it, she was paying careful attention to both what we were trying to seal and the rationale for sealing it.

[00:20:26] Speaker 02:
The sealing is much more extensive in this case than in the identical case we're about to hear, and it is kind of striking.

[00:20:34] Speaker 03:
Well, I can't speak to that, Your Honor. I can only speak to the information that the plaintiffs and the defendants tried to use in the case below. There were portions of it that were competitively sensitive and required sealing. I don't know the balance.

[00:20:52] Speaker 02:
We, of course, can see the sealed and unsealed and compare them. And our standard of review on the individual choices that the district court made is abuse of discretion?

[00:21:02] Speaker 03:
Correct. It's abuse of discretion. And I obviously can't see the same information that the court can in the other case. But the only point I want to make on that before I move to the jurisdictional questions is that Whatever standard, we think she was applying the correct standard the whole time, but she was absolutely and explicitly applying the correct standard with respect to the motion to unseal. That's in the record at 1ER, page 62. She cited that standard, very explicitly applied it to the attempt to unseal all of this information, and then walked through all of the reasons she felt, in her discretion, were bases to keep those materials sealed.

[00:21:40] Speaker 03:
And so the question is whether that analysis under the correct standard was an abuse of discretion, and we submit that there's no basis for that here.

[00:21:48] Speaker 02:
Did he address the jurisdictional issue? Why doesn't it merge?

[00:21:52] Speaker 03:
I think it doesn't merge. I think as counsel— You didn't raise the jurisdictional issue.

[00:21:56] Speaker 02:
I was raising the other case.

[00:21:58] Speaker 03:
Correct, correct. And so let me answer the court's questions that the court issued last week. And I actually think the correct way to start is with the second question. which is whether this issue, this interlocutory order, merges and then is appealable from the final judgment. We think it doesn't for all the reasons that counsel explained.

[00:22:19] Speaker 02:
He drew a distinction. He actually said the public aspect part doesn't merge at all. Correct. But the other part.

[00:22:28] Speaker 02:
he seemed to think maybe on a different footing. So how do you address that?

[00:22:33] Speaker 03:
I think the question as to whether to unseal the materials in the docket, I think is a separate question as to whether that information should have been provided to the class. And so I agree. I think the question as to whether the information should have been provided to the class is preserved.

[00:22:49] Speaker 02:
I don't think that... But does it merge into the final judgments? The denial of the information to the class without signing the protective order.

[00:22:58] Speaker 03:
So I will leave that to counsel, to my friend.

[00:23:02] Speaker 02:
If it merges, it kind of, I mean, under Langer, the collateral order issue seems irrelevant because Langer says, oddly enough, in the context of a collateral order appeal, even though it's supposed to be not appealable from the final judgment, that you can appeal it from the final judgment if it merges.

[00:23:19] Speaker 03:
If it merges, if it merges.

[00:23:22] Speaker 03:
And let me put it this way. I don't see how unsealing this material could in any way affect the judgment itself. I think that piece clearly does not merge. And I'll leave it to counsel to deal with the question as to whether the other issue merges, whether the other decision merges. But I do think they're distinct.

[00:23:41] Speaker 03:
And then the question of could this have been So if it doesn't merge, we think it doesn't merge, then the mechanism to appeal it would have been the collateral order doctrine. And whether or not you can meet the merits of the collateral order doctrine, that's the correct mechanism to challenge the order denying the motion to unseal. And so we agree with the defendant appellees in the El Guindy case that the current appeal on the unsealing issue is untimely.

[00:24:12] Speaker 02:
Okay. All right. Thank you, counsel. Thank you. We'll hear rebuttal.

[00:24:31] Speaker 01:
Thank you, Your Honor. Langer v. Kaiser holds that a plaintiff's failure to previously pursue an immediately available appeal under the Collateral Order Doctrine did not bar a later challenge on appeal from the final judgment.

[00:24:46] Speaker 02:
I mean, that's the normal rule in, you know, injunctive appeals under, you know, 1292. But it's really odd to say, I mean, in order to be a collateral order, it has to be not reviewable from the final judgment. And so if it satisfied the collateral order doctrine, then it shouldn't. merge into the final judgment and be reviewable on it. It sort of seems contradictory.

[00:25:14] Speaker 01:
There does seem to be a contradiction here. But when it comes to a motion to intervene as a matter of right, if it's denied, it's typically immediately appealable. If it's granted, it is not, even if there are conditions on it. And the Supreme Court in the Stringfellow case held that where there was a motion to intervene as of right that was denied, and a motion to intervene as a matter of permissive intervention, which was granted subject to some very draconian restrictions, that that was not immediately appealable, that the person, by having the motion to intervene granted, even with the draconian restrictions, could file an appeal after entry of final judgment challenging the order even on intervention as a right, which you'd ordinarily deal with like a collateral order for an immediate appeal.

[00:26:08] Speaker 01:
The rule for a collateral order doctrine appeal, if there is an order on sealing of documents that orders them unsealed, you can't correct that six months or a year or two years later on entry of final judgment because the record's unsealed. It's now public. If the material remains sealed, then you can, particularly if the person seeking unsealing is now a party to the action, withstanding to file a notice of appeal and to appeal it.

[00:26:38] Speaker 01:
It's an analogous logic, an analogous reasoning. And if you're going to hold that Kaiser is wrong, as a three-judge panel, I think Antonio versus Ward's Cove would require sui sponte convening in bank.

[00:26:55] Speaker 04:
I think that it's a situation— What does our gopher—so we revisited the anti-SLAPP questions in part— adjacent to these issues on bonk uh... after langer does that have any effect uh...

[00:27:11] Speaker 01:
I don't know, Your Honor.

[00:27:12] Speaker 04:
Okay, fair.

[00:27:13] Speaker 01:
I'm not familiar with the result in being proceeded.

[00:27:16] Speaker 02:
Can I ask you about the injunction? Because you've said that they didn't have standing to pursue injunctive relief and that that raises an issue in this case because of the enhanced disclosures provision in the settlement. But as counsel clarified, there actually is no injunction. It's a contractual promise. So why does that matter?

[00:27:40] Speaker 01:
Well, it's plainly prospective relief, prospective relief in a settlement order or settlement agreement that the court has approved and retained jurisdiction to enforce.

[00:27:52] Speaker 02:
Is your position that if you don't have standing to seek injunctive relief, the settlement can't include promises of a non-monetary nature?

[00:28:01] Speaker 01:
I think that if there's no standing to pursue claims, they can't be included in the settlement.

[00:28:07] Speaker 02:
Even if they're not embodied in a district court or they just can't make contractual promises other than money.

[00:28:13] Speaker 01:
And it's something that's going to be enforced by a district court with the effect of an injunction.

[00:28:19] Speaker 02:
There's a difference between having something enforced as an injunction and having potentially a breach of contract claim for breach of a settlement agreement.

[00:28:28] Speaker 01:
Well, a breach of contract claim for a settlement agreement you'd ordinarily have to pursue in state court. This is not – A case where you'd go to state court. This is a case where the district court has retained jurisdiction.

[00:28:40] Speaker 02:
Correct. And that raises the question why it matters whether they had standing to seek an injunction because they're not getting an injunction.

[00:28:47] Speaker 01:
They're getting prospective relief by court order.

[00:28:49] Speaker 02:
They're getting a contractual promise to change your behavior, which they'll, as you say, they may have to enforce in state court.

[00:28:56] Speaker 01:
Well, any consent decree.

[00:28:59] Speaker 02:
It's not a consent decree. There's no consent decree in this case.

[00:29:04] Speaker 01:
Well, Your Honor, it is an element of prospective relief. The Supreme Court holds that you need to have separately established standing for each claim and each form of relief in order to pursue it in federal court. I think that for a court to issue an order that is going to basically be imposing something that amounts to prospective relief, they would need to show standing.

[00:29:28] Speaker 02:
Okay. All right.

[00:29:29] Speaker 01:
Thank you, Your Honor.

[00:29:29] Speaker 02:
Thank you, Counsel. All right. The case just argued will be submitted.