requires a reversal st plaintiff's claim that alleged royalties surcharges paid to qualcomm by cell phone manufacturers were passed through all channels of distribution to them in the form of higher prices or reduce quality but they failed to show that impact to all or nearly all two hundred and fifty million class members could be established through common proof because the econometric model they advance cannot account for the s of millions of consumers who purchase phones at a focal point price or at a price subsidized to zero in either case their model fails to show passed through to consumers in addition millions more class members who purchased apple phones after tw sixteen were also not injured because apple was paying no royalties whatsoever to qualcomm and therefore there was nothing to pass through to the extent the plaintiffs are relying on changes in quality to establish injury there's no evidence in the record that could prove that every o e m increased would have increased quality in a but for world over the millions in millions of phone sold in this eight year period and their model makes no attempt whatsoever to show that that would have happened nd the district court certified the largest and most diverse class in history without having considered how such a class will be managed two hundred and fifty million members of the class one billion two hundred million separate transactions are implicated by this order which includes hundreds of cell phone models manufactured by more than a dozen phone makers sold through thousands of points of distribution by carriers retailers and manufacturers each of whom makes independent pricing decisions the district court failed to provide any practical means for qualcomm to challenge whatever evidence of past through plaintiffs presented for these channels sellers cell phone models and pricing plans that are implicated by the order   rd the district court contravened maza when it applied california law to a nationwide class completely disregarding the demonstrated interest of non repeal or states like texas ohio and the other a meet here in the application of their law to activity in their states instead the district court chose to federalize california policy and pop in and impose it on all other states my coll will speak for my colleagues but i would be most interested in having start with point number three certainly iran and my colleague from the department of justice will address that as well maza here the district court's treatment of it represents a clear error of law maza says that california law cannot be applied to plaintiffs who were harmed in other states when doing so conflicts with policy choices those states a made plaintiffs theory accepted by the district court is that maza simply doesn't apply when the defendant is a california company operating in california but that theory contradicts itself since the defendant there was also a california company headquartered in doing business here in california this class consists of tens of millions of members who purchased their phones in states which you do not permit in direct purchaser actions like this one and for a variety of reasons those states have drawn a different balance between consumer protection and fostering an attractive business environment maza says because how would those states be impacted by a settlement here a full trial and judgment the the department of justice and the meat you're making the point that those states made different policy choices with respect to business done in those states they want to different balance between consumer protection and attractive business environment including choice for consumers they've made a decision that in those states they don't want folks doing business there to have to face excessive litigation or face additional liability or face duplicative recovery and so they have said we are we are a non repeal or state you do not have a cause of action isn't it even more fundamental than that though is that you can't certify a class where you have if you have all these different i guess the question is whether california law consumed proceed these other state laws but it isn't that the real problem here is that you have multiple state law issues that make the uniformity of the law in one nationwide class action impracticable that that's right your honor that's right you're in the district court avoided that by sue declaring that she didn't have to pay any attention to the decisions of other states because the defendant was here in california so if we were to agree with you if we were to agree with you on this point what do we do because it seems like this argument does not undermine a state wide class action in california and perhaps even a larger class action that included other states that the district court made an error of law in this regard to court should reverse the order send it back to the district court for further proceedings consistent with your ruling and then judge code have to decide whether in light of the fact that all these other states laws are implicated she could serve that's what would happen and i think it's very clear that is there anything that would prohibit a certification let's just start even on the most basic level is there anything that would prohibit sort of cation of a california statewide class there are many things are other ear t arguments about it but under maza maza doesn't address that as addresses the application of other states and but we have two other key points i'd like to get to that address when we get there can i just make sure i understand as i understand it we do have federal claims right last was certified as to injunctive relief as to were junk and these claims don't apply to that right your arguments right now don't apply to that the my arguments apply to the current right act right application of california state law to all the states involved so all fifty see if we agreed with you on these arguments we would only be looking at damages remained on damages would we affirm and maybe this is leading you into your new arguments but would we affirm on th nationwide can you have a nationwide class as do injunctive relief and then a subclass that addresses different you conceivably could this is not an appropriate case for that your honor this is really a case about money and about damages and that's what we're fighting about well is this i mean it seems like it's a i mean that's a pretty big issue for qualcomm whether they can go forward and part of that question is whether that's mooted out by the f t c there's and there's a separate nationwide that's right separate there's a separate  action which has been resolved in the district court has been appealed it will be argued in this court on february rd you think that that lutes this out if if the if the th circuit were to decide that the f t c action was improperly brought or the judgment for  case would be moot that's exactly right but only if the night so it doesn't right now only if the th circuit upheld the injunctive relief in the f t c case well if this this case is a jury trial that case was a bench trial what they're seeking here by way of injunctive relief the f t c obviously has an injunction that was awarded by the district courts been stayed by the th circuit pending the argument the court's judgment was stayed the district court's f t c judgment has been stayed while the appeal day and if the court please or select to pass onto predominance which is really another critical issue in which the district court committed error of the core it's order fails to satisfy the standards for surf occasion set forth by the supreme court  comcast and wal mart obviously they had an obligation to show that any trust impact can be proven through common evidence for all or nearly all members of this class comcast and wal mart say that search proper only after a rigorous analysis even if that analysis overlaps with the merits in this circuit that means finding persuasive evidence that liability can be established commonly here the district court failed to would be of effect legally on qualcomm if it were a firm but it in terms of this trial it should have no effect that's right it's a separate case it's it's a it's a bench trial not a jury trial it would have a legal effect on qualcomm but it shouldn't have any effect on the jury trial here where both parties have demanded to trial by jury and the court would be obligated to provide that now in our case here it was conceded by the plaintiffs that there are tens of millions of phones sold at focal point prices ninety nine dollars nineteen cents to ninety nine dollars and as to which their model doesn't show there would have been any change in price there are millions more sold and zero subsidize to zero as part of a service plan and as to those people obviously there can be no price passthrough they didn't pay anything for their phone so they're falling behind a crack there might be a price passthrough it's going to be disguised someplace else that's going to be reflected in their monthly charges it's that's possible your honor but they did no modeling of that here they did no modeling of any service contracts their model is limited to looking at the cost to build the phone and the relationship between that and the price right they're only modeling the cost to build the phone itself and the price they're not even modeling the very small alleged surcharges of a few dollars they're modeling total cost against price there's no modeling whatsoever of any phone contract and no modeling of any quality issues that's another key point the district court accepted as a theory and it page forty six dollars of her order which is the excerpts of record dollars she says the expert posits a theory that even if prices didn't change quality would have changed but again it's only a theory no evidence was advanced in support of it their model in fact holds quality characteristics constant it doesn't test for changes in quality as a function of price of scuse me of cost it holds quality characteristics constant and test only the relationship between the total cost to build the phone and the price so so again the district court accepted as a theory that that there would be that this could happen but again comcast and wal mart and l s t all tell us you can't certify a class based on a theory there has to be evidence by which affidavit or no expert testimony that there's there's there's a statement by the plaintiffs expert that he can determine constant and tested only cost versus price and there again under comcast and under wal mart under l us the district court had an obligation to look behind the mirror statements of their expert and behind their allegations and look and see what is the model shell had she done that she would see the model does nothing to determine whether there could or would have been changes in quality based on changes in cost so  i preach it your arguments i think they're really strong but how is this how do we review this because we're not reviewing it didn't overwrite the everything you're arguing we would have to find that the district court abused its discretion and i feel like you're doing some of the same arguments you did below to us and so i'm trying to figure out what what per view we have i mean if you're right that there's nothing in there i suppose you'd argue that that's abuse of discretion well  arguing your honor is that there was an error of law when the court failed to apply the rigorous analysis standard of comcast and wal mart in an era of laws always an abuse of discretion so yes legally it's an abuse of discretion standard but here where the where the supreme court and the th circuit have said you must apply a rigorous analysis in find persuasive evidence to support your points that's that's where the defense is where the what if we don't believe that it's a legal  and we start delving into the facts doesn't that then turn it into a i mean it's still abuse of discretion and and under under an abuse of discretion standard your honor the complete absence of any plausible evidence would would support a reversal and here that's crystal clear for example when it comes to prices it's zero the court recognized that there could be many instances in which people paid nothing and there's no price pass through she simply said that's for the merits we'll deal with it later comcast doesn't allow them ellis doesn't allow them she took at face value their experts statement that he had control for prices at zero no he didn't do them he didn't control for prices it's zero what he said about that was well if they didn't suffer a price pass through the vet the quality of the phone would have changed but again they presented no evidence that that was so particularly so commonly across millions of consumers dozens of o e m s and eight year class period it's ridiculous common sense tells you that if you're talking about changes in cell phone quality that's not going to be a common issue there are dozens and dozens of cell phone manufacturers and making independent decisions on what sort of phone they want to make so in this case the failure to look behind the representations about quality behind the representation is about subsidies in zero pricing and a rd one the trial court said it was ok to average averaging is not ok in a situation like this if you average three phones where there is no pass through and three phones where the pass through is one hundred and thirty percent of which there are examples in their model that average pass through is sixty five percent even though three of those phones suffered absolutely no impact and therefore no injury and therefore no liability and the model that he presented uses averaging over and over and over to mask to mask the millions and millions and millions of class members who suffered no price impact whatsoever and as to whom it can't be shown that they suffered a quality impact averaging here the results of his so called model hides in masks the millions of people in the class and when that's true as in the asacol case from  good morning your honour's mary helen wimberly for the united states may it please the court as mr van ness previewed i'm here to talk about the rd question presented here which is the district court's departure for a mosque and i'd like to address three topics related to this issue namely the state interests at play the relevant tests that would apply should the court reach the rd step of the governmental interest test and the extent to which our america lies here so turning st the relevant interest of play they just your court found that this states other than california had no interest in applying their laws to this dispute but that's directly in contradiction to maza which held that each foreign state has an interest in applying its law to transaction competitive conduct by the defendant and nd there is the end direct purchasers transaction where it buy the product that has been for example price fixed from someone other than defendant and what monson does is says in the choice of law context when you have those two separate transactions and when those two separate transaction take place in two stepper it states what wins is the state where the injury occurred where the last event necessary for liability is the foreign class members happened in that's critical it's not just where i believe in the air exists it's where is so is eighty damages is actually a part of the cause of action is that right well i'd say that injury is part of the cause of action yes and certainly when you're making a damages claim the amount of damages is part of the cause of action and this strikes me as different than the f t c case where  here how do you even determine where the harm occurred because you you could have a plan you give somebody buying i'm a california resident i buy here in california maybe i'm hurting california we don't know except for the modeling and then i send the phone to my mom in illinois and she's using the phone and she may be harmed if the issue is whether you know whether the monthly fees increase so how do we make that determination well i think there's no dispute under the plaintiff's theory here they're talking about an overcharge this in this case is an overcharge in terms of the call the base pricing so but of the phone or of the monthly fee i believe of the phone itself  we're not even ok so you're talking about the transaction where that harm is incurred is the sale where you buy the phone at either the surcharge or you don't receive the quality you otherwise would have at that price and that trend even under california law that's the place where the indirect purchaser would be on the only harm we're talking about here is the transaction purchasing the phone right which has been passed through the chain of just tribulation from direct purchasers but the harm that the ender i mean that's the nature of the end direct purchasers claim is they have been harmed in their purchase of the phone so the harmers is where the purchases made where the devices manufactor exactly and so from the other states perspective those that have elected not to follow ill are those who have elected to follow illinois bricked they're saying look we don't want our direct purchasers to get involved in for example having to prove even if they're not plaintiffs are defendants in the case amount they pass through we don't want defendants who are going to be sending their products into the states to be subject to that litigation and they're unable to make that  the flip side california is not impeded in its ability to deter antitrust violations within the state it has twelve percent of the states the united states population and when the government would you object if if as to this point if we said yeah this was improper there's different states but you can certify a class action as to all purchases  made in non illinois brick states or it's even more complicated than that i guess it has to be states where the law departs from illinois brick and is the same as california right we've taken no position on that other than just say that we oppose a classification that we're buyers california lots of application to an entire nation my class and if i just might make two quick final points i see my time is almost up the st being that the place of the wrong is still the applicable test meaning the place of entry under california law where it has been deemed obsolete is one that applies without regard to the issue which is exactly what mccann explained so in other words if it's not a disputed issue not one that's likely  courts are unlikely to apply it reflects of late but it still remains the applicable test and or california law and secondly arc america presented the exact opposite circumstance that happened here in that case states were s on behalf of state entities as class actions under their own state laws so their class was defined by the state here you have california expanding to the entire united states effectively doubt that california's court right act can constitutionally be applied in not in violation of the due process clause to every purchaser of goods across the united states and specifically in the non repeal of states in fact that's what judge alston held on remand in a case where she had adopted a place of purchase rule as being the only applicable rule that could be applied constitutionally the th circuit s that's not accurate and the th circuit did so citing to california law as to why california court right act applies california has a strong interest in trying misconduct occurring within its borders by persons violating california law within its borders california's law was cited to that effect it's not even california residents that have been injured in some of those situations that's right but california is an interest in providing remedies to those as and explain why california the current law in california says that the current right act is designed to deter wrongdoing within its borders and to enforce its laws it's primarily a law enforcement function and it turns function if persons in other states have no remedy in to california law for a violation taking place with inside california's borders those defendants companies doing business in california will be under deterred because they will not respond that makes sense from a regulatory and a government perspective but how does that make sense for a plain teth who i mean to come in and  so i guess you your position is you're stepping you're stepping into the attorney general's position and trying to recover this money in part a private plaintiff is recognized for many years as as operating as a private attorney general and has a law enforcement function but this is not a class action issue suppose somebody in a non repeal estate individual bought a product that was overcharged as a result of wrongdoing taking place in california within california's borders by california company why would that person be denied the right to invoke the law of california in his favor against that defendant that's the issue it's a choice of law issue with choice of law or same if you had if you had an individual from a state came to california and brought suit yes exactly you still have to apply to a choice of law provision exactly and that's the point of the california choose to apply to apply the part right act rather than the law where the final act occurred and the reason why is to see whether another state has an interest in having its law applied to the same transaction instead of california and in doing so this state court analyzes whether or not the other state has an interest in having its law applied to deny a remedy under that circumstance where california would allow a remedy there is zero interest a non repeal or state would have indeed nine a remedy to its citizens under california law for harm caused to them by a california law and that seems like an overly broad statement you can i mean certainly there's some interest allowing commerce to occur and not deterring commerce in their states might be one that's al exactly right but here's the point choice of law is a case specific issue specific analysis that's what the california supreme court said in cary it's the law of california that you look to the issue in a case you don't have some general rules that say place of wrong or place of injury count you look to the interests involved in the state qualcomm wasn't doing business in those states none of the activities of you could i mean other states could say we  want to encourage you know cell phone usage in our state and therefore we're not going to you know we don't want remedies available here i don't know that they've done that i mean you could argue whether they have by by not repealing it that  illinois you know no brick rule but but i think it just i was just struck by the breadth of your comment that no other state could potentially have an interest in what's broadwell think you have to apply choice a lot of the facts of the case to not repeal illinois brick they have your honor but not no circumstances low that may be but that isn't the problem here that everybody all states have treated this differently and now we have california coming in and saying we're going to rule the entire united states literally and that's a problem you understand why those who don't live in california get a little bit frustrated with that kind of an approach if if if another state and on repealing state and interest that would be furthered it is for the only way it is for that's their law that's the law that they've adopted why they didn't want california coming in and telling them them what their law is and making policy decisions for them on that point you want to think about this if you may this is the critical point has any state by had by failing to repeal only burke and to say that indirect purchasers have no right to sue for damages based upon its laws and any state announced a policy that says that its residents can't sue under the law of the nose state that would give them a remedy where the activity in question didn't take place either so i understand that's your best argument but you've you overstated i think you've overstated your case i think what you just said now is your best argument but i think i'm taking issue with some of your your broader statements that they just don't possibly have any interest at all and i don't think that's true let me see if i could if i could refine the point well i think you just did a bit but that really that really is the issue that's what we were given in the court that there was no interest that they would have in denying their residents a remedy were it wouldn't further their business interests it wouldn't attract business it would have no impact at all qualcomm is several layers it would attract what's put into their states if they say we want to encourage we want to encourage as many as much via vibrant of competition is possible we want to encourage as many products to be sold here and that's why we've adopted this rule than what you're advocating is against that but you have to apply it to the facts of the case that's the point and your honor if if the if if indirect purchasers in a non repeal of the state were denied a remedy what internet not deny to remedy their debt they're denied a remedy that you see fit under california law say are they have this is the problem you got i mean you're saying applying its law you have to see whether or not applying it to the facts of the case would further its interest how would saying that california law can't apply in favor of its residents encourage or discourage so phones from being sold more product i'm not saying it's true or not trying just saying it's possible and i think you keep coming back and say more there's not a possible interest at all and that that's just on its face doesn't seem like a a persuasive argument i think what you said before and what you got into is a little bit more persuasive and i think that's what we've got to address and let me very quickly address maza and why it doesn't it was distinguishable here mazas is a case where honda is alleged to have made the alleged they relied upon to their detriment in buying the cars mark honda unlike qualcomm was doing business in those states that was the context in which the court said that the district court didn't properly weigh the interests of the proposition that post the restatement st of con of conflicts of law which had very rigid rules about the sighting was place approaches the absolute you know determinative factor to decide choice of law that was abandoned by californian sixty seven many of the states have banned it the fall the nd restatement which looks to the significant relationship of the parties if you look at the law review study that cited by the reporter of the rd restating of conflicts of law that's currently in work right now by the american law institute he they point out that eighty six percent of the states in a tort case would give the plaintiff the option of choosing to sue one of the law of his state or the law of the state where the conduct took place that caused the harms not one hundred percent one hundred percent that is eighty six and sent a problem you're certifying the largest class action that we've ever seen and you've got multiple states what would be the problem here if we just sent this back and said listen we were willing to allow here illinois brick versus not illinois brick or they're really like ten options illinois break and then nine variations of repeals of what here is what's happened in other other courts where you've had  if there's no conflict under california choice of law rules california law applies that's that's what and a conflict is not that had this suit been brought in a in a non repeal or state that there would be no cause of action that's that's not that's not a sufficient conflict to say if you if we if you had to bring a suit in your own state in your home state you couldn't recover but you can recover in california and that doesn't present a conflict well the cases of sort of the conflict said just because those states have said indirect purchasers camp sue for damages material difference between calif knew what we admit that there is a do since in california law california law says in the report this was cancelled then the question which i've been arguing is is that those states who don't have repeal or laws don't have an interest in having their laws applied to the facts of this case to divide their residents around maty but if there were to be a determination that they do have an interest then you've got a true conflict but with respect to the states that have not followed illinois there's no conflict and therefore there'd be no reason under california law not to apply california law to the residents of those states right now and that's my question but i'm wondering if it's by an area choice or if it's really more segregated can we just say illinois broken an illinois break or are there a lot of variations here that we need to send this back and have a full fifty state analysis the only argument that was made by by qualcomm the only argument states the american interest institute in their makers brief points out that the authorities show at most they're twelve or thirteen so you have to pick out those states and that's something judge could perfectly well do i remember just following that bright line rule which is the only rule that was argue qualcomm a bright line rule in that regard in this case and that's hopeful what can you get into some of the other issues because factually obviously this is a complicated case to get into and  where does abuse of discretion apply or not do you agree that these are legal questions and that the question we're determining is whether a legal error was made or not made or do you think that they're all fact intense i think it's very very fact from every level of the chain of distribution from the zero m's from qualcomm from distributors from carriers and retailers examining transaction data involving millions of phones the expert applied what's regression analysis which has been approved by courts across the country and used generally in the world for example the quality adjusted prices that he determined based upon his modeling is the same kind of thing that the in computing the cost of living index it's a very well accepted technique the data that he used was extruding extensive it included transaction data every level of the of the stage of distribution the basic thrust of the case is that call come imposed ex ante a super frand world on all persons using the technology and anybody who bought at qualcom chip it covered the entire universe of cell phones being manufactured in the united states that's why the class is as broad as it is as a function of the facts of the case you have this effect of industry wide tax being imposed upon all the phones without the only question that qualcomm raised the fact question was it passed through to consumers qualcomm doesn't question the commonality of the evidence to show that there was this tax that was imposed that was super friend on all  and it got incorporated into their into the prices of their phones well that's the question isn't it did it get incorporated i thought that was the question was did it get incorporated into the price of their phones or did it get passed through in other ways to the consumers and that is the only positive past we were a chip this is my problem with your statements yes you said every single case it was asked who and now you're saying well statistically speaking it was this is the problem this is the problem you get when you get into a case like this you can't i mean with hundreds of manufacturers how can you say that they all did at the same way if you can come up with a statistical model i get that but you can't say that that proves that it was always done through the pricing from let's you have to ski not challenged by qualcomm that have that that royalty charge was an overcharge it was more was higher than a friend world the rate would have been the evidence from professor al haig of harvard university is that they were able to charge that superfriends rate by virtue of the restraints that are at issue in this case that's is this is all common evidence i'm not disputing any of that what i'm saying is how did that carry through you're talking about going through the change of ok we started with three things that i think everybody seems to agree on but then you get into very complicated questions of how one hundred different businesses manage that surcharge and the critical point to understand in this regard your honor is the model that he used measure the quality adjusted price of the phones here's what the evidence shows at the time a phone was being designed and cost it out and the price targets were being selected that was done in consultation not just with the o e m's but they did it in consultation with the carriers that they were going to be selling the phones to and the retailers that they wouldn't be setting the phones to and the engaged in troy says about what qualities to put into a phone to meet certain price and cost targets the evidence shows that actually they took out quality features of phones to meet those targets they adjusted the quality adjusted price of those phones the quality of the phone so your time up five or six and you're saying that they all got together and made the same decision on the let me i can cite to the evidence you're not you're not just asking what you're arguing yes you're saying they all got together and made the same decision on the quality item it's going to cost us fifteen dollars a phone because of this world what feature can we take out that cost less than fifteen dollars a battery a camera we can reduce the size of the pixels so all of these decisions are being made simultaneously each affecting each phone that's being sold in to a retailer three hundred dollars to retail richer but decisions could have been could they have been different based on i mean you could have gone to a retailer and said look we don't want to take out these capabilities let's try to recoup this on an increased monthly fee that at the end of the day that's that's true but what you have is a phone whose quality has been set at the time the manufacturing decisions are made that's the that's so critically important understand the theory of the case and that that quality adjusted prices then pass through the chain of distribution now let me make two points in that regard this is fact based findings by the court they stay put that this is without any factual foundation is absolutely incorrect well i agree with you i mean as i read it the district court put in about thirty five pages or forty pages of analysis analyzing all these things so we're going to go back through evidence and she took into account all of qualcomm's arguments in and she responded to all of qualcomm's arguments and showed why the evidence supported the contrary position but i want to make one point i think is absolutely crucial crucial to the analysis what is the real issue here when you're talking about predominant see how will the proof be presented this proof is going to be common proved to the class we stand or fall on common prove individual class members need to come forward and testify about why they bought a fellow i understand but you raise i mean this raises pretty big questions i get it that the courts have said look we can't require every plane of come in and testify how they've been harmed and th statistical analysis apparently in certain circumstances is ok but boy that's a slippery slope when you're when you're contrast in that to the due process clause the the question is whether the proof will be common here the proof will be understand rules to prove common i understand and it's and court after court across no where is the limit of that where's the limit if there is i mean is that what we're limited to if is looking insane does this statistical analysis take into account these three for alleged errors that qualcomm makes and that's the limit to what we're doing or can we look at this even more comprehensively insane walk there's a outer limit to statistical analysis you can't do this of fifteen billion dollars case affecting two hundred and forty million dollars people it's just that that stretches the due process clause too far in the if the issue is whether or not for class purposes well the w that differently to well and one last point out there focal point pricing was raise the the focal points our set as part of that process of the design process know the words the carriers are setting their prices in light of the features that they've ordered the manufacturers to make which in turn are based upon the choices they make which in turn are based upon qualcomm's royalty if the royalty weren't there they could make different choices that would improve the quality of the phones that's a critical point to understand in terms of this focal point argument and on the freephone point your honor that the evidence shows that there were tradeoffs made carrier is there's no free lunch carries don't give a phone that somebody for nothing they recoup it in the service charges in the monthly contract that sort of i think that i don't see that as something that helps you or maybe it does maybe does ok because i would view that as difference in how the harm occurs no harm is baked in at the time the phone that is being sold is got less features than it would have on a quality adjusted basis but those are those are different analyses per o e m i mean not every phone comes out with the same capabilities but and different pass rates were measured by the expert to take into account the different data another this is a data driven study fin my time is short on the uninsured class member point and the apple apple people the evidence shows we didn't say that they were injured and the expert has said i can compute how they were injured because kapil apple made his choices in light of the claim that was being made against his b qualcomm and in fact the expert has in his merits report calculated the damages of these up a purchasers and one last point if they were to win a trial and say that those post september two thousand and sixteen purchasers weren't harmed they can be excised by a simple mechanical test so there's no asacol problem there's no real freight problem there there's a the easiest demarcation line can be drawn between them so there isn't that's not a basis to not that's not t class i see my time is up unless of course any questions thank you for self or thank you tens of millions of class members purchase falls at focal point prices and their only answer to that is well if the price didn't change the quality would tens of millions of additional class members paid nothing and their answer to that is well it was taken from them some other way those two statements alone show you this cannot be done commonly across two hundred and fifty million class members and it's really not that complicated judge poe when it comes to quality at page forty six of her order refers to this as a theory that dr flamm posits she calls it a theory that he posits that changes would have been made but dr flamm admits he did no testing of changes in quality based on cost he says at excerpt of record three o six i held phone characteristics constant in my analysis and that allowed me to test a relationship between cost and price not between cost and quality there's no dispute about that and they haven't raised it dr fleming admitted in his deposition that as to focal point footnote to ten his testimony is set forth very clearly and very plainly there there's simply no question that there are tens of millions of people that purchase phones as to whom there is no showing of of price impact and it's not a group that you can just go out and say here they are here they are here they are you need to know what model they bought when they bought it what o e m made it what channel it came through what retailers sold it and the trial court has provided absolutely no mechanism for qualcomm to exercise its due process right to challenge the s of millions of people are were not impacted and therefore there is no liability as to them this classic simply cannot stand the bozza point i think was well argued the panel fully understands it but mas it is sort of the tail wagging the dog here the dog is a two hundred and fifty million member class with one billion transactions with the flimsy analysis they presented to the district court doesn't pass the smell test under comcast or wal mart or alice the trial court failed to apply a rigorous analysis she failed to apply the standard to find persuasive evidence that this could actually be demonstrated across the entire class and for that reason alone the order should be reversed and the court given the district court instructions to apply comcast apply walmart find a reliable way if there is one to prove injury for whatever class they want to present but this class certainly can't stand given the enormous problems that exist