case walked into a f c a us dealership and asked the dealership if he could get his broken window fixed the dealership said yes they could fix it for one hundred dollars the didn't the plaintiff agreed to pay one hundred dollars the dealership fixed the window the window is now seven years later since the fix and it still works today he's never had a problem with it he has no injury he has no damages this was a bargain for a fix this was the value of the fix is its utility it continues to be utilized today his damages have varied throughout the course of the case at one point it was at the time that we were in the district court the vehicle was somehow the value of the vehicle was somehow diminished he's now abandoned that is his type of damages he says it right in his brief on page fifty five that he is not seeking to diminish the vehicle value of the images as i understand it he's now arguing  that he paid more than he would have if he hadn't realized the risk of failure of this window replacement and it seems that there is expert testimony that these window replacements have a risk of failure so why is he not injured for having paid maybe it's one hundred dollars instead of if you know it had a risk of failure seventy five dollars or whatever that it would have been worth to have a possibly faulty window replacement your honor that's a good question i think the answer to that question is more in logic than anything every product that is on the market has a risk of failure every single but some have higher risk of failure than others and i think his allegation is that this has a high risk of failure and the company didn't disclose that if they had the value of the replacement would have been lower than it was when people didn't know the risk of failure that's at least his theory and i think california courts have recognized that theory so it seems like an plausible injury now you may be able to win a trial with the idea that it isn't really faulty or the experts saying it's has a high risk of error is wrong but as a theory for standing i'm not sure why how you get around this is an initial that i'm not so sure this court has ever recognizes that as a theory of damages in the context of going in and buying a service basically well you've got a product you didn't buy a service you bought he bought a service he wanted to get his window fixed but he ended up with a new window right or a new window mechanism he had to buy a new window mechanism is part he bargain though they have his window fits well so you may have an individual argument that he got a good deal but as a theory which he's trying to press on behalf of a class and you may have other arguments about why the class isn't valid but as a theory that someone paid too much for a product i think i mean you're now calling it a service but he got a replacement mechanism didn't he i'm not sure how you're saying that the service makes a  difference makes a difference because it's about what he bargained for he went in it's not the value of his bargain at its core it's about the value of his bargain his bargain was i need my window fixed how much will you charge me to get my window fixed and he says if i had been told that day that it might fail at whatever percentage rate these windows are failing that he would have bargained differently so why isn't that an injury to the rate by the way your honor for these windows is less than one percent failure rate for these windows it's about zero point eight percent failure rate but the issue is you know what is the value of the bargain that he made the bargain the value of the bargain is what was his motivation for making that bargain his bargain what his motivation was to get my window fixed he got his window fixed this is not like buying a car where you know courts have now in the once within the ninth circuit regularly recognize a difference in value in the in the purchase price this is not like a car you buy a car you think the car itself has value and you it has value on the day you buy it it has value when you go to trade it in or resell it and that the value of that product may be affected may be affected by the existence of the defect whether it ever is manifested or not the problem with the theory here he is he bargained for a fish and he got the fits into morrow he could sell his car and when he goes to resell his and maybe it will fail between now and tomorrow because it has this failure rates and he didn't know that so that maybe means that he would have bargained differently and there was injured by the failure to disclose the failure rate includes people who went to a dealership bargained for to have their window fixed and nothing more got their window fixed have since traded in their vehicle and got more for their vehicle because that window worked then if it would have been broken when you go into you know trade your car you sell your vehicle what's wrong with that the windows broken that's a dot one hundred dollars actually although i have the same argument don't they that they paid one hundred dollars or two hundred dollars or whatever they paid for the replacement product and if they had known the failure rate maybe they would have paid less it seems like they still have this paying too much injury which you might be able to succeed in showing isn't based in fact because maybe this failure rate is the same as any product or you could win some other way but the notion of that type of injury i'm not sure why under law that shouldn't be an injury would just i guess i maybe it's more of a policy argument that to answer your question i mean where does it end you know i buy a product i bargain for a product or i buy a service a bargain for a service years later i decide hey it's working perfectly but maybe you know i heard on the i heard through the grapevine that this might fail i mean what we want to do if any does as i understand it though is that the company actually offered i mean sent out letters offering to replace these i don't think that's something that happens very often unless there's an actual problem that here is another problem i wanted to address today your honor the fact that that's that's not correct fact m reimburse people who had who he had already paid mr doyle never had one of those bad regulators the people who had his regulators were never offered any type of relief that's part of the problem with this record is the pl move for a class that included all these different regulators in the district court here seems to have thought that all the different regulators were similar enough that they had the same defect and that seems to be a fact finding that we would have to review for clear error is that right no your hon not when the when all regulators were going to be in in the class the court issued its tentative order which he mentions in his final order saying when i initially initially entered my tentative order i thought these product differences were going to matter but now that the plaintiffs have narrowed the class have identified certain part numbers i've decided they don't matter at all so because you think they're they also have a very relevant purpose is the same defect and i think that's a finding of fact it's your honor that you're also are mixing the apples with the oranges here the district court when it was looking at more than the different types of regulators i thought your question was well the district court found that all these regulators the snap in the glass and the service kids or the similar enough to move forward i think that's what he found it is not what he found because the planes dropped the service kit ok well so whatever's left whatever they have it dropped he found they were relevantly the same right he found that the pin on he said he said they had differences he said they had minor differently but differences that he thought didn't matter and that seems like a fact he's saying relevantly the mechanics of these things are relevantly the same the fact there is no evidence in the record whatsoever just to support the judge's finding oh now you're arguing it's a clear error i'm arguing class certification was a clear if we want to move on to class or i was arguing standing but if we want to move but now you're jumping so i'm just trying to establish whether the district court made a fact finding that the products that are still within the class definition are relevantly the same is that a fact finding to which we are clear error review or is there something else going on that i'm not understanding i disagree that you made that finding your honor there's no finding there is a passing reference that says these minor differences there's no evaluation there's no rigorous analysis as it was we  for this for this finding for this proceeding there's nothing in there in the in the court's order that's indicative that the rigorous analysis that this circuit has repeatedly indicated has to be applied in deciding class certification and even putting that aside i mean he was trapped he was you know going down a new path but this court hasn't spoken at all yet about whether somebody who buys a product one products can represent people who bought another  ok the court was considering that issue which this circuit has never commented on or established criteria for and perhaps that's why he didn't sit down and apply some set criteria  what do i have to go through to decide whether this person who bought this product can represent people who brought a product that's different i think it's because he thought that relevantly the products are the same so maybe you have two phones that have the same speaker and the speaker is the defect whichever phone you have as long as it has that same speaker then you have the same injury i think that's how it is treating these window regulators your honor that's part of the problem you think but we don't know because there's nothing indicative in the order of how we came to any  two different parts talking about the front regulators in the back regulators i can take these two different parts i can i can subject them to the same failure mode analysis which is a test to determine at what point a product will fail applied to every product in the world he applied to he create tests because these were made a product which is universally recognized test for testing the failure point of a product made of plastic i can apply that test to both of these products would be the same analytical process but he  unequivocally said the answers would be different for each of them as to when they what the failure point was for each of them which is also reflected just abundantly in the records if you were to separate out the products that the point of ultimately decided in the at at the hearing which price it was not allowed an opportunity to submit evidence after they narrowed the class even more if you were to take it from the evidence just the  failure rates that apply to the pin on glass front regulators and compare them to anything else you would find that they were miniscule and in the backs were a little more substantial still less than one percent but there was no there was nothing like that was done the court made its decision based on a composite regulator that was not at issue it never considered a point of changes his class definition as i'm standing here trying to argue you shouldn't certify a class based on what i thought the class was going to be the value object at that point and say we needed a chance to respond yes i was denied we done we're running out time but you mentioned class certification what tantalizes me and i'll tell you what it is is rule twenty three b threes require requirement of superiority what is the program that chrysler put in a place to make coal or whatever it was all of these problems that we're talking about judge again to some i want to be honest and clear i hope you always are without having to say that whatever and whenever anybody says to be honest i'm worried about everything they said before wasn't but ok go ahead i mean what you said probably happened so i guess i started with alec but here this is one of the right price was program was only for those people it was six zero seven right correct and the program was we're going to give you seven years of coverage for your your window regulators if they break we're going to repair them for free if you as owners that's the balance of power out for replacement windows or was it only for aboriginal equipment it was for the window regulators in those cars there originally element and no it was for window regulators in the the in the where on the record can six of the e r but i don't think it's so clear for that it matches what you just said it sounds from the latter like it's original owners doesn't talk about leases and it doesn't seem to talk about replacements that letter went to owners who could be identified i believe there's an a is class action superior i'm talking about you know the carter's web case that says a pretty much because carter's is already offering the very relief the plaintive seeks it allows customers to obtain refunds for the government it's not a superior way of doing anything hamelin requires us to look at everything under the sun and why isn't this a case that fails that test this is not the superior way to resolve all this the best way is to have chrysler make everybody whole in the zero six zero seven group i per you need to do so it doesn't tell everyone hey come in and get your when the regulator replaces defective instead it says if it's already broken then come and fix it if you don't do anything so and then if it breaks get you take it in there's no evidence of this how long this program's going to go moreover there's a big i thought you said seven years and that's why i was like where did i find that it's at seven years in the letter yeah so the letter says seven years there's no evidence the program will go that far that senate i mean if i'm sitting in a district court and somebody comes in with this letter that says seven years i'm how i'm five and seven years over and out correct your honor the issue though is that waiting for people to have their windows regulators break we're going to have we're going to have thousands of cars owners driving around out there waiting for the window regulator to create the defect when the defect occurs that testimony both lay and expert they had to get the window he didn't  them with a loud noise glass come shattering they didn't say don't bring it in they said you need not you need to not they didn't say don't you could i mean if i saw that letter and i had that window i drive in there tomorrow it's a fix the damn thing they did say you can't or you shouldn't or you don't need to see what your car if it was a jeep liberty correct or are they do not instruct people not to bring in their cars but there's no evidence of this letter went out to everyone that would be in the class the letter also gives them positive mis information that is if there's no break you don't need to do anything but what if i want to find what if i never got the letter and i'm driving around and the thing breaks and i drive into chrysler and say what the hell you people going to do wouldn't they necessarily say we're going to fix it for free i don't know what they would say at that point i know the various classman doesn't have that doesn't that doesn't that letter pretty much say that the letter that's addressed to certain owners i don't know what what the word crisis database is like i don't know how still doesn't cover those that had to pay for a repair or those with a pay already for defective replacement regulator those people are not covered they're not covered so before the letter went out no even after the letter if all the letter says is the letter says that chrysler will repair the window it doesn't say if you've already paid for a window repair you can come in and will reimburse you it doesn't i'm sure it's as if you've already experienced this window regulator concern and have paid to have it repaired you may be eligible  every in person it is you may be eligible to receive reimbursement there is no well vision of the what the criteria is how much closer we consider to be a reason they have a form for sending your receipt i mean it comes with the letter there's no evidence in the record of how this program actually works there is no evidence that is working there is no evidence that it went to all class members and if it works it's a far superior way to resolve this controversy as far as i can tell i disagree for one key point this is a safety issue the expert testified five safety issues what or how you're shifting i think from what your theory is at this point as i understood it because saying that this is a safety issue makes it sound like what you're requesting as relief in this case is some kind of replacement but as i understand it your damages request at this point is some kind of reimbursement some percentage of reimbursement of an amount that was already paid and am i wrong about that correct there or there are two forms of damages that we are seeking we are seeking for those who paid for a defective replacement when the regulator reimbursement of that and we are seeking for those who had to pay to repair the window when it was broken with whatever part that if they qualify for having a replacement regulator in there in the first place for recovery of those damages so both of those sound like reimbursement types of damages reimbursements for amounts that were paid to my right correct ok so doesn't the class definition include people who didn't pay well the other the class  complete relief which is that now you're just shifting your theory of relief i asked you what are you seeking and you said reimbursement damage or that that is one component of damages but we're also seeking equitable relief and what is the form of equitable relief that you're seeking were and where is that press ok so it doesn't seem like you are seeking that any more in your class serve occasion motion you have to say what you're seeking and as i understood it at this point the only thing you were seeking was reimbursement damages when it comes to them as yes ok so if you're seeking on behalf of this class reimbursement damages then how do you satisfy comcast when your class includes people who didn't pay anything so couldn't be reimbursed client typical of a class when he had expenses that he's seeking reimbursement for and the class definition includes people who didn't have expenses how does that make him how can he be typical of people who don't have the same claims are typical or if they're reasonably coextensive with those that brady does or not are they if they are people who didn't have any expenses the damage sought is different from the claims the predominant issue in this case the court found was was has to suffer the most the maximum possible damage of every class member it doesn't say that he was harmed when a replacement regulator was put into his car by chrysler the damage that he suffered that flowed from that was one of two things either  can he even represent them the kinds of relief that he would seek to help him are not the same kinds of relief that would help those people who didn't pay well becomes a relief he would see because he would submit his repair bills right and how does that help the people the people who are in the class as you've defined it include people who the relief for them that would help them would be to ask for a replacement the kind of injunctive relief that i think you've dropped along the way so how does that not show us that he's not an adequate representative of everyone in the class as you've defined it so when it comes to when it comes to the kind of the manner in which he would submit his damages claim it would be the receipts for what he did for the evidence as damages the documentary receipts class members would submit their own those receipts could come in the form of repair receipts or they could come in the form of purchase for defective replacement regulator and what are the people going to do who didn't have receipts because they didn't pay for th injunction i don't think that's true i mean if they're in this class and there's a finding here and ultimately a trial that these windows are not defective those people are to be bound by that and they're not going to have another case where they can get repairs well i put it to the extent the doyle has class has an interest in proving the defect in proving that that the defective plastic polymer resulted in heat creep which causes windows which can cause window regulator failure and cause the windows to come crashing down as they talk about it damn you know modeling for damages right and comcast the nature of comcast was it had to do with clustering of cable or satellite television providers in certain areas swapping you know swapping one service provider for another to create these clusters th overall effect of the pricing in the area the only way that they could prove damages there was by regression model there was originally four classes there was one regression model submitted with a for cloud i think we need to go through all the facts of comcast but isn't the additionally for a phone call it doesn't mean everyone has the same damages but don't you need a methodology some kind of model that applies to everyone even if individual calculations need to be done under that model that's a good question in your your question is doesn't comcast require you to have an approach to calculating damages that would apply to everyone in the class that doesn't mean everyone's damages would be the same because maybe the answer maybe the approach is you get a twenty percent reimbursement from what you paid and so everyone would go through an individual calculation of what was twenty percent of the amount that they particularly paid but you need an again aversive approach for the whole class what the what will the approach be is that twenty percent reimbursement is  forty percent reimbursement is a full reimbursement you need a model some kind of theory of damages i think that applies to the whole class well i don't i don't think so i mean in the in the in the in the it depends upon the kind of damage it depends upon the kind of damage that you present to the class if you have to model it applies to the whole class uniformly that almost destroys consumer class actions centrally you know you could have a class here of people who paid it for window regulators and you could have a theory that they deserve twenty five percent back a smaller class than the one that's being proposed at the thought of getting back to my question when you said there are people who haven't had the pair's done they're seeking injunctive relief people have had repairs on their seeking money i mean right there wouldn't it make sense just to have a smaller class have a class about the pe the money and then if people really want to be part of this this injunctive vacaville class they can do that just have two different cases opposed often all the same ones perhaps i misspoke to the extent that when i was talking about the injunctive relief i was talking about in comparison to chrysler letter that purports to describe a voluntary program that was sent to a certain subset of people containing just certain model years that is i believe misleading incomplete in its form if we proceed on the class the kind of relief that it's possible isn't and jumped an order from the court that would ensure that that happens here where underwear happened so we're back to that question then where in your class or to the cation motion in the arguments about it anywhere did you say that you're seeking injunctive relief on behalf of this class this is only in response to the question as to whether or not the letter solves the issue no we're asking about whether this class was properly certified based on the relief you're seeking for this class it seems like you have a mismatch between your definition and the relief you're seeking the relief that the relief that we're seeking the relief that we're seeking from the letter aside the relief that we are seeking is for damages for purchasing a defective or in the regulator or damages for a proper repair of the window as evidenced by the receipts to the extent that there are some class members that may not have that they've they are still damaged by the fact that they get no help from this case right because they have never slee quickly i think the argument made here displays a very serious problem with the class he kept referring to the zero six zero zero seven owners as a some class some classes need representatives mr doyle is not a representative of the at that some class  did you make the argument in the district court that we've just been discussing for quite a while here with your opposing counsel about whether the class definition included people who didn't pay anything we argued that the class included people who did not have standing in their own right in that context yes we argued that there were people who had not paid people who had been reimbursed and that those people would have no damages so in the case on the definition i mean as a matter of whether he's typical or whether he's an adequate class representative did you ever say there's a problem with this class definition and those requirements for justification you're in the record  do that that's in the class certification briefing we challenged the adequacy on the basis of this issue that people were not some people didn't pay that it was like a target that we could you know that kept moving we every time we would argue against what they were they were proposing he would change the class or he would change the making of the class we started off having to do address extremely broad issues because there was so much stuff in the class then we try to you know they try to narrow it we we did we were offered an opportunity when he first tried to narrow it to submit additional weapons which is the two twenty one to twenty two that i raised so there was some additional briefing there and some additional evidence then it was narrowed even more and we were not given an opportunity but we did raise every issue at some point although it may not have been precisely to the class that was ultimately certified only because we were not given an opportunity to ever address that precise class that was ultimately is question or offering are you everything the people in the zero six zero seven group want and are asking for anybody who paid yes because anybody who paid for a regulator would have been totally reimbursed upon sending in the receipts and that it doesn't even have to be an original receipt i mean we accept many forms of of verification but yes there are those and that's why we argued at wang about not including those people and i would you know we said they didn't have standing we referred to a martin saying a class that includes people who don't have standing i understand the circuit has backed off of it slightly in to but torres still says today just issued a couple months ago torres still says today that the clash should not be defined to include a large number of members who for some reason could not have been harmed which is exactly the case with the zero six zero seven orders did you say two twenty one to two twenty two were the additional pages you wanted us to look at yes ok i don't think they say anything about the warranty program but we can you can look at that