sometimes called junk faxes the core facts are typical for this kind of case the defendants here bought a list of fax numbers from a third party called info usa the data data broker of talk of sorts they designed a fax advertisement for one of their products the drug proly which streets asked your prose is what it takes so long to bring the lawsuit i mean it seems like the main reason our main problem here relates to that in other words they kept the stuff for fifty eighteen months lawsuits filed three years after the blast fax and here we are now seven years later and you know the only way you can get this feasible class definition is through affidavits but it's all because of the time and so i just curious why the insult of the fax happens the many you get it just as the insult of the phone call you know the robo phone call happens then who takes three years to debate their lawsuit was a little identifying who's in the class i mean in a weird sort of way i mean i can i can see on the one hand saying is just too hard acknowledge that well it seems a little unfair because the defendants are the ones that got rid of the information that would tell us but i could also see thinking about the other way how clever we wait till after they've gotten rid of the records and now everyone's a member or at least if they file an affidavit to that effect in the course seven years later i don't even know what people are going to do i think they're going to get a lot of faxes i probably got this when i was on the list seventy five percent odds i was on it i want to make sure they correct something because we would have no incentive to wait until after the records are destroyed that would only work to the defendant benefit we're suing for the forty thousand why does why doesn't it work to your benefit that to not now right now and not have any way to prove who the twenty five percent are that should not be in the class but that does work to your benefit because we're suing on the forty thousand successful transmissions that's the same whether we can identify the recipients or not it's the same number of violations the statutory damages the aggregate award at trial if we if we get that we get that far and we went out of class way basis is going to be the same circuit in mullens versus direct if you don't this court in rico's versus proctor and gamble and now the ninth circuit and are saying well what's the thing you're saying they all say what's your what you're holding from those cases that you're using and identifying class members the ability to identify the class members is not a prerequisite to class certification and there is no ascertain ability requirement in terms of know how about manageability correct or that his word falls in and so the question is is class  certification superior when compared to the alternatives the seventh circuit in mullens the ninth circuit in the percent no case which are those are both cases of consumers you know consumer fraud cases where someone purchased a product in the state it wasn't all natural or it  didn't do it was supposed to do and the conclusion both those courts reached was yes class certification is superior to the alternatives because the alternatives are either a multitude of individuals through which is precisely a rule twenty three i designed to prevent or much more likely in that context no one recovers anything and the defendant gets away scot free that's not the superior outcome from a policy policy perspective especially not with the t c p because it's it's  suffices so that would not be rico because it acknowledged other ways of figuring this out i don't think it's the seventh circuit case either because there were other ways and they just said well for the sake of argument will address this so that's why i said holds what's the case the  of appeals case that holds filing affidavits later suffices for identification because why it's by itself so the circuit case mullings says i that's why i just was being clear about it said knowledge there were other ways to identify these people but then say for the sake of argument let's assume that's not the case and then go on ok so i understand why the rest of the peons helpful to you but that's why emphasize the word holding what's the case that holds it was indispensable to the case there's that's all there is in the case it's just like this one everyone agrees there's no other way to figure this out other than affidavits and it's court of appeals and it says that works that's enough the notion that these affidavit of class members submitting an affidavit is insufficient as a matter of law and thus justifies the denial of class or cation if that's all you can do that's an abuse of discretion because you can't know you can't know ex ante first of all we dispute that that's the only way to establish class membership other class members might have a copy of the facts just like our plaintiff has a copy of the facts there's no way for her judge who are you to know who the no one else out there has  people use computer software to meters their faxes nowadays you know the phone line is soaked up to the computer and you see the you know effects on the computer people would have a strong incentive to go back in their records and check and see if they can find a copy of it it means they're going to get five hundred to fifteen hundred dollars per they can find assuming that prevail at trial this matter so first of all ip i think is if you just make sure i understand you're saying affidavits are not the only way they go to class members can not just sign something saying i got it they can sign something and attach something that they have from seven years earlier is that what you just said i'm just trying to make sure and i'm saying it's it's an abuse of discretion to assume that no class member will be able to do that if that's what's required but well maybe i'm i've maybe i didn't understand the case i thought you accepted for the sake of argument for figuring out cost certification that the only way we'd figure out in class members were were the affidavit am i wrong about that i do not concede that at all i can see that will be the case for some class members not everybody is going to have a copy i i understand that and not everybody should be able to find a copy electronically but i'm not going to assume right now that none of these putative class members will be able to do that or why  know it's ascertainable because ascertain ability has to do with the class definition and this class definition is objective lee defined it's defined by objective criteria of receiving a particular fax on a particular day containing particular content and it's not a failsafe class it doesn't break into the definition you know that the opt out notice was insufficient or that it would you know it was unsolicited or whatever there's no merits element based in the definition it simply is a neutral description all persons who were sent the specs on this day that's what makes the definition ascertainable ascertainable the seventh circuit when a great deal about this and mullins and the ninth circuit did in the per se no case this court didn't go into such detail about ascertain a billion but it clearly rejected the third circuit's heightened ascertain ability standard which imposes the stand alone requirement that's not in the rule any rule twenty three says nothing about ascertain ability in fact faith in every single provision of the rule that you have to know who the classes absolutely not enroll twenty three see it says you give notice to all class members who can be the best known as practicable under the circumstances including individual notice to those members who can be identified through you know the reasonable effort it presumes there are cases when you where you cannot circumstances as a rule twenty three says notice case that is not a notice no no it's also it's also has to do with superior order because he says superiority here we players class certification because otherwise you're going to let the defendant off scot free at this statute statutory damages and it has a deterrent purpose so how let's just say hypothetically what happens here and i know this is not likely going to try to figure something out so we know twenty five percent did not get this ok and just hypothetically you now have the award the award goes out and seventy five percent are getting less than they should and they want the rest ok so they want to sue the liars or the the the misremembers all be nice  class action the father class action against the whole all they know is the same thing you know the fifty thousand number whatever it is does that work are they allowed to do that we know within that group twenty five percent are members of a class that all did the same thing they claimed a right to money they got it and they shouldn't have can you bring that class action you would say it's ascertainable i just find it  the false claimants broke it what's the cause of action because they lied they got they got money they didn't deserve we know as a matter of fact you have to agree if one hundred percent of this class filed a claim twenty five percent did it wrongly you have to agree with that necessarily so i'm just asking now we have a class second class action the second class action is by people that we know got it like your client because they they've got the documents and they sue everybody else no one else has anything but their affidavit the classes ascertainable people that took money they didn't deserve so what it what is the judge do this is judge suing the class might well look my answer is in and i realize maybe i'm that interview question about this hypothetical class action but the way to avoid this scenario but then stop answer the hypothetical there's a cause of action what do you do if the judge have to certify the class i think the judge could find the class certification would not be superior under b three in that circumstance because it would tend to mean it would tend to undermine the finality of the first class action judgment we're not going to make perfect in the enemy of the good in these cases that's what mullins old perfect and i would twenty five percent it's a big percentage so everybody gets seventy five percent or better but the other better scenario that's your theory that  ts now it's efforts to go back to phone records and other stuff does not start to get very individualized i put it this way if we could not identify any the class was an identifiable except for our point of class certification would still be superior in order to achieve the purposes of the c p a we would simply cypre the money to some charity in order to create an indirect benefit for the class members that's what the ninth circuit did in the case called six mexican workers from nine hundred ninety we cited in our briefs that's what the  circuit didn't use versus core enterprise it's an increasing skepticism of cypre approaches to this i'm sure you're saying that right i have feelings and i think it's i think still think it's best to spirit to just leave leave these accurate when they can't they can't do it on the right of the came to witness basis you don't have never seen it done so i'm not sure oh actually it is being done in dish network so there you know it is done occasionally by the government but by and large this t c p isn't forced by private attorneys general you know attorneys acting as private interest or let me go back before you sit down to two year reliance upon mons on the ninth circuit case and you're questioning whether this is even a proper consideration in terms of the definition of a class what do we do is sue me that we agreed with you what do we do with our decision and young that says that it must be administratively feasible for the court to determine whether particular individual is a member of the proposed class you i understand you probably disagree with that approach but so many were bound by that that seems to undercut frankly almost everything you've said i disagree with it and i think i think you have to be  why is it how how in this case under the facts of this case is it administratively feasible to determine whether a particular individual is among the ones who got the facts because without the facts because they can attest to that under oath or three can produce a copy of the facts or both aren't so that's what makes it administratively feasible but here but we have we have no idea of because you didn't produce it how many people you suggest would be able to produce the facts right we know we have one your client because your client seems to be sort of in the facts litigation business long along with being chiropractors he's not in the facts business he is a chiropractor he may be a litigious chiropractor but he's a chiropractor he's a you know there are also i don't mean to be unfair i just my understanding is he's filed at least ten of these cases through your firm i think in total from the start that's probably accurate susan forcing i ignore my characterization he's got one but we have no idea whether there's any more than one that actually has a copy of the facts right i cannot prove that as i stand here  and the defendants can't prove that they don't know why what is the test that we apply to this judge's decision that it's not administratively feasible is it just pure or do noble review on every aspect of that decision or is the judge's decision that you only got one person with the facts and we don't really trust these affidavits anyway so it's not it ministre to a feasible is that clear error abuse of discretion what is it that's that's a review that's to know because it's an error of law young versus nation so that when you play the law is based upon the underlying facts upon which the decision was made right the the error of law in this region this part of the opinion that the judge the district court judge made was to assume that identification is part of an ascertain ability analysis that's not present in rule twenty three and has been rejected by every circuit of the circuit so far he should have analyzed that under will twenty three b three superiority and he didn't do that should be reversed to be made what about his other explanations for his decision predominance right that individual questions of prior permission predominate over the common questions this court addressed this circuit address that very question and bridging communities  less than two months ago bring communities versus top plate financial we followed a rule twenty eight jason went on that as well the district court denied class certification because of the possibility that some class members might have given prior express permission and this circuit reversed i that they say show prior express imitation information they have the thirty second surveys they have their well summarized in the declaration of eric bessie it's in the defendant's supplemental appendix thirty second surveys account change documents credit applications and then the miscellaneous e mails you know which are which are three order forms i'll take those category by category and i'll prove on the merits a trial that none of those documents constitutes prior press invitation or permission and i'll do it on a class we wait for the d c circuit decision on this there's this underlying issue about the agency authority and i am sure you know about that case just for the record counsel on the case on the circuit so i think you answered that question i didn't argue it but i'm aware of it so we wait for it now because it would it could only conceivably make a difference if the defendants really got prior to us invitation or permission and the evidence that they put up so far is i mean you we could go through those documents i'm out of time he's but but our position is we want to  litigate on the merits whether any of those things are prior restoration and if they will one of those subclasses then they witness to those class members you know it's i want to reiterate it's only several thousand class members out of forty thousand successful transmissions the defendants concede i don't know what several let's say it means five they concede thirty five thousand of the class members they did they didn't get prior permission and so there were different than your they may have been different than your client because there may have been physicians who wanted to see what drug new drugs are the cost of drugs your client can prescribe a drug right yes so but whether you like the facts and whether you find it helpful or not has nothing to do with whether he the defendant satisfied its obligation to obtain prior express invitation or permission before sending you that fax you may be perfectly happy getting that back some find it the most wonderful fax in the world but it's still a violation of the statute for the defendant to send if we were suing for actual damages i would say yes the statue of actual damages or statutory damages automatic five hundred dollars per fax and if the judge finds it willful or knowing the judge can increase it up to fifteen hundred dollars but that has nothing to do with the reaction of the recipient that has to do good morning honors martin j sic for the defendant at pelleas may please the court your honors there are four buckets in this case in bucket one are individuals who consented to steve this facts in bucket two or individuals who did not book three or individuals to whom the fax was successfully sent and bucket for individuals to whom the fax was not successfully sent the problem in this instance in the reason the district court tonight certification on predominant ground is that there are no class wide means no class wide means to determine who falls into which bucket and the reason that the problem is because in this instance and i know council spoke a lot about ascertain ability in their brief they talked about fluid recovery so forth but the issue is that in this instance the buckets we're talking about are fundamental elements of it there are three elements of a stove but just to make sure i'm following your point i mean what if they're right about  so that makes it seem like that's the really important point the really important point your honour's consent buckets one and two and so even if we use affidavit to identify who was successfully sent this facts are not even if there could be possible and again fifty percent were identifiable through through the documents and frankly the cases that do go to show how you do this in the case how ascertain the bill to be should be considered as a big case or this court's decision american copper and eight circuits decision in men talks and both of them said ascertain ability in fact cases here's a dual use fax logs and both of those cases said if we leave aside ascertain  honor's question we still have the issue of consent because consent affidavits are not going to work for that because what we have your honor we produced over four hundred thousand pages of consent and one count was discussing certain of the forms what we did you honor is just scratching the surface we went through them to figure out these claims these forty thousand class members do we have evidence that they consented and we have we found a lot of it we put into the record judges who hari did a lot of work looking through them or expert found at least forty different forms now bessie medical established as a single pharmacy in one thousand nine hundred forty eight and so it used various different forms throughout the years for individuals to consent so these forms are highly variable some of them you turn the issue is subclasses is if they're subclasses we still need to determine who goes in them and the only way to determine to determine that here is individual analysis as judge jury found an analysis of the record and the reason is this even if we can credit plaintiff's argument that well perhaps we could just go through all the various forms that there are who knows how many there's at least forty and maybe with judge of how we go one by one and we have these arguments the problem is the forms are filled out  variable manner so i'll give you want to example there's a clear form that says check here and provides of fax number if you want to see faxes for these purposes we started looking through these forms some of them people checked the box provide their fax number and gave it to us out the fact that they want to receive advertising faxes so it is a highly highly factually based decision and i would i would strongly submit the judge to hari after spending a lot of time looking into this did not abused his discretion in finding that on these facts consent issues will predominate and that is my overriding point if there is one thing i can communicate to this court is that ascertain ability cypre manageability i would be happy to defend judge who has ruling on any of those matters and it's entirely defensible however the most important point is that when you're dealing with a cause of action that has three elements you need to be successfully sent an unsolicited advertisement th elements if two of those three cannot be cannot be determined by class white means the individual issues will predominate over common issues and that is exactly what your thought about the d c circuit decision which way  catch we wait for it do you know about it absolutely know about it your honor if i were to if you are asked me to predict right now i think what the dishy circuit would do is i think it will actually probably state that he never had authority to begin with to try to teach so but i'm asking you should we wait for it we don't know what it's going to do should we wait for i don't think so you're wrong certainly that you're only could the court certainly could do that but i don't think it's necessary and the reason i would in front of us and you want to but i wouldn't really seem to be defending his ascertain ability decision i know you set a little go i will defend any part of it yes but you're really focusing on predominance i'm happy to do that by you what's your take on you know a little advice to the circuit in terms of how to label this what's really going on and are you really advocating something that's different from the seventy nine and you know how would you help us articulate what the role of something  and also there's a very recent six circuit to see how it would stop but tell me why that councils in favor of what you're going to say finish the sentence i'm sorry the i actually meant to cite the six circuit decision that just came down about a month ago which states that think i'm following you started out by saying no need to wait for the d c circuit and i might now understand you to say maybe it's a good idea to wait for the d c you know i'm sorry my my my stay here making a separate point about ok i get sacked because this that was my question ok now go to why don't you defend ascertain ability or tell us what the right word for it is and how it should work and where it's different from the seven to nine certainly it is different from the seventh well no it's different from the third in i can see question of whether class members are included or excluded from the class by reference to object of criteria so it's not just a definition how do you define that the class anybody any good lawyer could define a class in a way that to act as th count ricos says affidavits can be used as supplementation proctor and gamble enrico's had internal documentation internal records that showed for fifteen more than fifty percent of the class more than fifty percent could be ascertained from internal documents and rico stated that you can use the majority of recruits not the dissent majority rico stated that you could use affidavits to supplement the rest i would state on the ascertain ability point in a t c p facts case the best case is to look out for this circuit opinion american copper and the met talks case from looking for the rule the rule is in the t c p a fax case here it's not being used as a supplement is that your point because affidavits are all there is correct now he said that well not quite true might you know the class members can go back and look through their phone records and sort this out and so there would be objective evidence a couple points to make number one this is a new argument that plaintiffs counsel are making on appeal that this was not argued from judge hari correctly on in fact judge who hardly had to go out on his own he stated in his opinion that because the plaintiff's counsel did not provide me with any other means by which i could potentially certina class i'm going to on my own terms whether there are other bases and then the one that he found was let's consider whether affidavits would work and judge to hurry on these facts on this again on this record seven years ago busy physicians possible that there are in the fifty three thousand that there are other people who perhaps like mr winter dr when a staffer at sandusky bring t c p a claim so maybe they keep their faxes and so forth it's plaintiffs have not led any of that evidence at any point in the district court and in fact if we look at it if we look at med talks again and american copper both this circuit and circuit stated in t fax cases the way you get to this because you can't just define the class as such you need to be able to resolve the issue the way to resolve the issue on class wide means class one means is fax logs and so even if there are if we credit there might be some people who do remember a great memory or maybe they do have some computer printout those aren't classified means and what we would have to do is we would have to go in and start cross examining all of them over this case come out on these exact facts in the way it was argued in the district court if it were in the seventh circuit i think would come out the same way with the difference that judges who hari in this case know i'm going to say this i think it would come out the exact same way it's just that in seventh circuit there would be perhaps more argument along which which ascertain a builder were using or using the third circuit version the seventh circuit version but again i am i'm not advocating that the third circuit version heightened version should be applied here i'm saying that even under the lowered version whatever the terminology is i think the latest terminology i've seen is the we can version of certina bill under that basis this is still not ascertain facts don't exist and i would make one other point your honor was asking on plaintiff's counsel about this destruction of the fax logs just to be very clear about the record the record is clear that the record is clear that we don't know whether fax logs ever existed all we know is that west fax didn't say that ended up to tonight's case i'm sorry to say whether fax logs existed you're talking about your clients retention period comes in so where the point we're saying maybe they sent us a fax log we have no idea so this isn't even a situation where we know they existed they're gone we don't know what the nexus to begin with because this case was brought after that retention period expired so what i would back up to though is that in terms of the the the issue driving force here you know well again ascertainable to understand that when you're looking at the primary element of a claim a cause of action and here it's being successfully sent an unsolicited unsolicited advertisement one of those three is a classified question is it an advertisement or not the other two are not class wired they cannot be resolved by class sutton's question about what is the rule that you're advancing here because it seems to me either you didn't answer the question or i didn't understand the answer both are likely you seem to be saying that the rule that predominant standard what i'm saying is that when we go over into ascertain ability again i believe absolutely judge you hardly got to the right right result with this but it's a more complicated discussion when you start looking but to answer your question we're we're not advocating that you i'm sorry was your last question do you absolutely need facts logs to ascertain a class or to have classified  you said that's not the rule that you're advancing but you don't absolutely need them you need either your own or you need either fax logs or some other alternative means by which to determine that question who successfully sent by class mr harris says he's got other alternative means he says he can produce either clients that have the the facts itself like sandusky or he can produce affidavits so does that fall within your rule or doesn't it follow that your  it does not fall within my rule in this case your ok so then we get to refine the rule little bit to know why right well and so here it is you're wrong number one again it was an argument that was not advanced in a district court here but even beyond that even if it had been advanced it was at issue here most follows even if some people even a priest you know a thousand of these people would have other records that we could use to determine what they did or didn't receive the facts the problem here is that there's no class wide means to get to that out and so what you need is a class by basis otherwise we're going to be in a trial for a very long time means that everybody has to have either there has to be evidence that either everybody has the facts or everybody has i think you mentioned telephone records that they got effects that that would we know that be sufficient as an alternative to facts lives right correct but does it have to be everybody or does it have to be a percentage of that we have here where it's potentially just a few of them it has to it's something that can be done on a class wide basis and well i would love to come up with potential other ways that it can be done to be frank the two courts they really look at for this which have considered this issue met talks at circuit and this court in american copper said look the way you do it with facts is it's facts locks and i can tell you wrong also that to determine whether there are other means because we needed to be to be up to date on this argument we took a look at the expert reports that plaintiffs experts filed in other t c p cases mr bigger stuff who who does this a lot and we looked at what else is used other than facts logs and we found that he found seventeen reports in t c p fax cases and for the plaintiff in fifteen of them he referred to fax logs to show that to show that he could identify who the members were in the two that he didn't have fa because they didn't exist classes were not certified and i feel compelled to make one more point on this issue we said this in a brief your honor i understand plaintiff is making the argument right now that you know we're really here it's ascertainable and so forth objective criteria but when we took take a look at the plaintiffs this plaintiffs represented by the same plaintiffs counsel in their briefing in front of the eighth circuit approximately a year and a half ago in meant talks they were asked to distinguish  i understand that this client that did that it was this kind you it was this it was this client and again you submit this to we have this and yes it's in the it's in our briefing your honor and also i didn't want to take it to the point where i'm saying that the kind to stop certainly not i'm just making the point oth said there's this objection to ascertain ability but we have the facts logs so it's met ok that is a sufficient condition to have the facts logs does not mean that's the only way i'll be satisfied got that go on  so what are you saying is that an alternative as ineffective substitute or these facts i mean i know you've referred to sandusky's got the facts and others might have electronic records but does it make a difference when you when we're looking at classified basis whether whether there's a suggestion that only one or two out of fifty thousand have these alternatives or is the suggestion being made that it's got to be more than that my  position is that ascertain ability is satisfied when the definition is objective and when someone comes forward and files a claim you can determine by if you don't think that's around tyranny young i know that's what you want the law to be but you don't think that's contrary to young no i think i completely consistent with us i think what young was talking about was exactly that that when class members come forward and self identify you can determine by objective criteria not subjective criteria like you know whether they felt harassed by the police there's a famous understand how this works we know how you're defining the class seems ok if there has to be some sort of objective you're basically saying you're ok to proceed with the class and if somebody doesn't come forward with this objective criteria of either the facts itself or a phone record those are the only examples you've mentioned so far then it's a viable class action but there is out there in there bound by a judgement of the case it lets the opt out i mean in terms of recovery correct they're in a class they're in the class but they can't recover like in any class action it happens very often people are bound by the class norms are bound by the judgement that they don't share in the proceeds they choose not to and that's ok the supreme court has held that that's ok but it doesn't mean you don't just mean the possibility that that might happen means well let's just not certify the classes reject twenty twenty three as it is a mechanism to enforce the substantive this what do we do about the fact that it seems below you were just focusing on affidavits that you didn't raise this possibility of different class members can identify whether they've got the fax or go through their phone records to figure out where they got it i don't think that's very there was we filed a brief in support of class certification and there was a response brief there was no reply brief but there was a telephonic hearing i don't know if i raise that point in the telephonic hearing and were cleaned out if you don't you sound like the person who cannot sure where they got fox and might say they did i'm not really interested if you can't point to the record as to what happened if you didn't preserve you didn't preserve it and i don't want you to say i know what i don't have i know one thing i did argue i just looked in my brief my motion for class or haitian and i said this issue about identifying class members is not a threshold requirement to certify a class it's a part of the rule twenty three b three superior but that leaves the predominance ruling superiority not predominance predominates doesn't make sense here this class is defined by as people who successfully receive the facts forty thousand people so so when depends on whether you go down for you whether there was consent right but he said the three elements received an unsolicited advertisement received is not something that doesn't predomina everyone received every class member received it the problem is can you identify them from the universe of the fifty thousand targets that is not a predominance problem are can it be understand why it doesn't fit in that because among the class members the common issues are is it an advertisement is the opt out notice adequate was it sent using a computer or telephone fax unleash machine to a telephone fax machine those are those are common issues did they receive it did each class member receive the fax is already answered by the definition it's defined as people who received a fax the problem is an identification problem and that's because the records have been destroyed so it's not a predominance issue it has to be use it has to be looked at in the superiority and else no matter how it comes out in my favor and not i want to get the analysis right because  ascertain ability thing for you to have it's it's it's creating havoc in the district because no one knows what it means so your theory is he didn't reliance a period already and we should reverse what he did and he we should send it back to decide whether this problem of identifying a class can be resolved in spirit already grounds absolutely it's a legal error and it's going to cause great confusion not only into c p s she says but in all other forms of class actions because this ascertain ability thing is the it's the defense to george to class certification and we have to get past it and get some clarity so the district courts understand that rule twenty three doesn't say anything about ascertain ability to the ninth circuit just said that we're going to use it we're going to follow the rule and we're going to read the language of the  it doesn't contain the word ascertainable and the only time it refers to identifying people is in giving them the best known as practicable if you can in which an implies that sometimes you can't and there's a large body of law that analyzes identification as a we're just not buying in a class where twenty five percent are not members so it's a very big delta will say and you know you want to hear it or not you want to answer a question i haven't asked the class definition is only the seventy five percent it doesn't contain the other twenty i know but given the fact that we don't know who they are we don't have the logs we know we have a problem ok what if we take the view that given the way this case has been presented the way it was argued below the only way to fix that proffered by the plaintiffs is affidavits and this kind of a setting that's not going to suffice and so if we take that view it does look like the predominance ruling is pretty good because the only way around that is to do this person by person inquiry and but does start to look like a predominance problem ok it's it's i still think that's a superiority issue because you're wearing the costs and benefits of classification should we pay some people but not everybody or should we let the defendant get off scot free that's the comparative analysis of the seventh circuit talked about muslims second i want to make clear that it's our position that prior to press invitation or permission the claim that you know the defense claim to have gotten in these four different categories or maybe forty different categories however many there are i'll take them one by one ok and a high amount one of the type give me each document that you say prior to press permission tell me which class members are in there and out i'll take it to the jury  judgment to the to the judge and say this doesn't meet the standard for prior to press invitation of permission and that's only if the opt out notice regulation for fax to sit with permission is considered waived by the agency which is a whole separate issue we haven't really