I. INTRODUCTION: 'Without Action by This Court There Will Be a Miscarriage of Justice'
We're now running on this blog, in serial form, the full text of our brief.
Extraordinary events have occurred. Without action by this Court there will be a miscarriage of justice, so appellants frame the issues in this motion to strike the "corrected" briefs of the appellees.
Appellees' briefs, before "correction," contain statements of post-judgment, outside-of-the-record facts. The facts are the total value of class member claims against the settlement, and the number of named plaintiff claims in the different compensation categories. Appellees said these facts rendered the appeal "absurd" and moot. Then Appellants questioned the accuracy of the facts and Appellees admitted they are wrong. They then filed "corrected" briefs, excising the facts and related arguments.
The facts, and appellees' explanation for the error, are dramatic admissions that demonstrate that the parties misled, intentionally or mistakenly, the district court. These admissions should be considered on the appeal. These events raise the specter of bad faith by the appellees and they refuse to dispel this cloud on the judicial process with a candid explanation.
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