that are germane to this is peel and if i have time at the end i will address why much of what the fed and the raises in pelleas brief is really not germane to the appeal  the first of the two rulings that are germane are the ruling that the plaintiffs u c l and c l r i claims were preempted because one not all one of the reasons he believed that the fenton's product would help maintain a healthy heart was that it might help prevent cardiovascular disease the second ruling is the rule not sorry not any particular cardiovascular disease but overall functioning of the heart healthy heart yes your honor the questioning i think if you look at the deposition questioning he was asked you know well what does he believe how do how does the product work he does all help maintain my healthy heart help maintain my heart help eventually counsel said well does that mean that it may prevent cardiovascular disease or heart disease and he said oh yes yes or a case so on the basis of that answer his claim was going preemptive according to the district court and then because he and other class members might subjectively interpret the label claim to include helping prevent heart disease that there were class members who might also have the subjective interpretation and therefore everything in the class i fell down to so really when it comes down to it there's really one critical ruling that has to be addressed here and that's whether or not the district court was correct in finding plaintiff's claim preempted because during his deposition higher than he or she would have if he or she had known the truth once those two elements are stablished there are no other elements to a consumer fraud claim so when the court considered his testimony about how he thought the product work no matter what he thought that's all relevant in our can our in it's pretty clear in of the law because we cited the court to him in no joseph case and i just want to quote it because it really pu district court did take into consideration whether or not the testimony should be informative of whether or not a regular claims they would have been making otherwise in the suit in their their employment case well i and so i'm i just want to see what your responses to that and is that applicable here or these are these consumer cases distinguish i think they are i mean i don't lay claim to understand the risks and there are multiple layers of risk of claims that i don't have any understanding i do know about what the consumer fraud requirements are and they're simple and by answer to your honor's i don't think arista has anything to do here in those cases on having the hear and i'll find out if i could very quickly read a quote from this court in two thousand and thirteen and the one you know just case that establishes the fact that let's understand something we have to put this in context the district court made expressed findings that the plaintiff had relied on the labeling claim and that he had paid more than he would if the truth was known the court said he was a victim of consumer fraud he just found that that that fraud was preempted because he said something about how he thought the well sure if the plaintiff claimed that he was misled but what is called a disease claim as opposed to a structure of function claim and the compl states he spoke to function claim how was the point of an adequate representative of the other class because your honor i don't think he necessarily said that he was suing the defendant for a false disease claim that's what the district court found right yet but that's what the district court found but he make an error based on fact or did he make an error based on law b scope of review is different as to one or the other young which one of the error is a matter of law he testified that he also testified other reasons why he bought the product to justify now you're talking about  took the court made an error of law when it was the error of law in precisely stated if you could ok the error of law precisely stated was that the court considered facts other than the fact that the plaintiff relied on the label and that he paid more for the product than he otherwise would have paid if he had known the truth that's the more accurately interpreted tories and the depositions and found that mr braddy was making the disease claim rather than a structure function claim the court was wrong if i could he would not be a representative of the class that he is representing in his complaint if the district court were right that this was a structure function claim in the complaint and mr  disease claim well but he is not calling it a disease claim but that's an issue of fact isn't it no because if you take a look at the testimony of mr brodrick and the court says this i interpret of testifies that he or she has relied on the statement and has purchased the product at a price higher than it otherwise or she otherwise would if the truth was known the in so if i could submit to your honor what if at the deposition the counsel had asked plaintiff i was the product of work and he said i don't know what he had then not had a claim because he did it because he didn't testify about what he thought how the product worked the point is how a plaintiff or a consumer thinks the product might work or not might work is irrelevant the issue only issue  issue with respect to whether or not there is reliance under the c r a or materiality under the u c l is whether a reasonable consumer and object of consumer not a subject of consumer a reasonable consumer would deem the statement material in purchasing that product and the plaintiff deemed that material was the only reason he brought bought the product whether he thought he was correct about how it worked or not is irrelevant once he relied on the labeling statement and bought a product that was tainted with consumer fraud if if the rule is that the courts must consider what a plaintiff or a class member might believe as to how the product works the no class gets certified because believe you me in every purchase transaction whether it's this dietary supplement or hair product or whatever it is they may have completely widely varying views about how they think the product might work but that's not the issue under the law under kwikset under the no joseph under middlemen under virtually every decision of this court th a two step inquiry did the plaintiff purchase the product did they rely on the labeling claim and would they did they pay more than they otherwise would and i really would love to answer your question your honor because i really hate when a judge not the c l or a claim requires an element of proof of class white reliance so if arguably considering what each class member subjective belief about how the product work product label claims that the plaintiff pay for it and did he or she pay more than he or she would otherwise have paid at the truth were known and so regardless of whether the play in this case claim is  representative of the classically in in the in the u c l under the law the class the termination is then the point of the fight to meet his or her reliance requirements and then answer the question if the claim is proven false and we submit to you that our expert has submitted that because he stated that vitamin e supplements in these doses do not provide any heart health benefits so that means structure function heart health benefits that means disease heart health benefits his opinion which is still no record there was no dobber motion was that the effectively the structure function claim was false so the plaintiff here if you believe his testimony about subsequent about what how the product work is read germane he's also testified that he relied on other things that are not preempt so cut out the testimony if you want to the fact is that he's testified in and testified to the elements of the claim i've only got forty seconds some as well use it up and not do rebuttal so the fact is though that is really the only where if you buy a stock in the public traded exchange and it's tainted with fraud your reliance is presumed well one of the points of testifies about what they thought the fraud was and it's not consistent with what the fraud was well that testimony's or ele plaintiff that these same lawyers have put forward in their repeated efforts to state a claim and come up with a class on vitamin a against pharma by now theoretically we can keep coming back here on new plaintiffs but the reality is that the plaintiffs that we've seen so far show to a fare thee well why braddock cannot certify a manageable class in this case now long before i knew who this panel was i had intended to open my remarks by quoting from judge bay as concurring decision in the baker b microsoft case because i thought those words so perfectly describe this fifth bite of the apple that braddock wants to take and i in just going to quote a short passage from that because i think it describes this latest counsel need not present meritorious claims to achieve victory they need obtain only a favorable class certification ruling in light of the minimal cost filing a class complaint obvious strategy suggests itself keep filing a class action complaint with different name plaintiffs until some judge somewhere grants the motion a certified judge concludes and words that of the question was i think it was one maybe two questions on heart disease that was elicited and looks like that was the i've been looking at the deposition and you know testimony it looks like that's trying to elicit from this individual that it was heart disease was it was heart disease he kept saying he gets a maintaining heart and then i think there's two statements where he says ok heart disease why can't we for the district court exercise that out and say ok the part disease preempted that can go forward on the structure function seem like it was undisputed going into this proceeding that it was structured function it is understood it is a structure function statement but his interpretation and i will address the importance of his interpretation his interpretation was uniquely as disease he put that in as in iraq a very responses he gave multiple deposition statements to that effect so it was responses which is cited in the brief as well i'm reading from one page says what exactly do you think that the nature that the nature made vitamin e was going to do for you i thought it was going to help maintain my healthy heart at the time and what does that mean layman's terms i would say free of heart disease so it's going to prevent heart disease for you jackson i don't know if i had a heart disease i never been diagnosed with heart disease so i don't know how to really answer that so i guess i'm just trying to figure out that's how we're going to determine whether class actions go forward your honor you're going to determine that because he put it in as an erotic for responses but he said this is my interpretation and his interpretation is a very important an example if he had said you know yeah that is a structure function claim but i read that as meaning that vitamin e would prevent pancreatic cancer we would not be having this discussion today because we would know that he is not an adequate class representative he couldn't represent the class and hear what he is saying is really the same thing with a very minor tweak instead of pancreatic cancer he's just saying heart disease and he put it in his in a rather toward responses  and it is one way to express the hope the vitamin d provides a healthy heart to express it in that term and it is it prevents disease your honor how that converted from the structure function claim into a disease claim the judge the district court judge address that very question he said that prevents and keeps free are really the same thing and so even though he's trying to couch it he is really just relabeling a structure function claim as a disease claim and saying the thing before i flip that around he's relabeling a disease claim keeping his heart free from heart disease so i don't think that's anything that is either a cynic one on of a healthy heart maintaining your your honor that is that is what we discussed and it not he's not making the claim that he thinks that the bill the vitamin e will prevent a specific heart problem like you just said a moment ago think we had a cancer he's not saying it prevents a defend it prevents arterial blockage he say it prevents disease as a way of keeping my heart healthy it prevents heart disease and it has and it's just as as i was saying if it was if you just take out cancer in or take out the word pancreatic in the example i used if he had said pink or garfield said i believe this prevents cancer again we wouldn't be having this discussion and that's really what he's doing instead of cancer he's saying fit into this analysis i think it fits and in this way that regardless of whether there is a reasonable consumer interpretation and i have a long discussion that i would like to include on the issue of reliance because i i think that the reliance issue has gotten very confused here but the fact that there is a reasonable consumer who may look at this in a certain way does not give an absent class member of the right to recover on a preemptive claim even if the california legislature or ballot measure even had said absent class members can recover on a preemptive claim regardless of whether they were lied or not the supremacy clause would stop that and that's what's really going on here and if you look at the cases that the plaintiff discusses tobacco to the two thousand and one tobacco two decision i'm looking at tate central district california decision versus it's a it's a district court decision but there's a couple of them out there that says the subjective test the reasonable consumer test renders claims under the e c l f a l and c l r a ideal for classification because they will not require the court investigate cost members individual interaction with the product and there's you see this other district a couple other district courts who are  in i know that's not precedent force but i'm trying to figure out why that's not a reasonable way to approach this and the reason is because that is true possibly if you don't have a preempted claim by the absent class members of you look at the back of two which is a case that braddock relies on heavily the two thousand and nine decision had no preemption in it and the two thousand and seven tobacco two decision by the california supreme court which is very important because that framed what was there in two thousand and nine that discussed at length preemption and it throws out the class allegations on a preemptive claim so that when you get to two thousand  class members claims and that's the difference we're not saying that the absent class members reliance has to be proved in order to have a u c l claim that's not what we're saying and that's not what the case is would say we're not trying to argue that that's true under the sort of presupposed or assumed the court would have to ascertain each individual interpretation of maintaining a healthy kark heart instead of looking at how a reason of consumer would interpret that statement and i'm not sure i guess want to know what the authority would be for that route that the district court with the united states supremacy clause which for beds somebody members would be trying to recover on a preempted state law claim and that's the problem that's not and that's not what i challenge is how do you determine that and so it looks like that's how the district court did it i'm just saying that's how it's done in every case that you have to anticipate or figure out what every individual on how they interpreted it and to be able to figure out whether there's a class instead of looking at it from a reasonable  honor i believe that in in the situation where you're going to be pushing money from one side of the table to the other on a claim that would be preempted if it was a claim of a certain nature then yes i believe the answer is you would have to men have to what is happening in receipt here and even in those cases it seemed like there were split motives or split reasons well the route your honor those those three cases those two arista cases don't jump to mind but the cases that i do recollect are the u c l cases where and the the court looked at the plaintiff's interpretation the name plaintiff's interpretation in order to make a determination clinging to terminations on preemptions and that would be a disease claim is preempted on a structure function claim in the sense that you cannot recount is from my question ok designed a standard for preemption to apply the rest of the a pre approval of the legal by the f d a am i wrong the that's not quite right your honor for preemption to apply if you have a structure function claim and you have a structure function claim here as everybody  agrees then what the f d a says you can proceed with that and the f d a says any attempt to add to that a labeling requirement under a state law is preempted and that's expressed preemption it's in the statute it's in in a different context in a disease claim that might be true but unless there's pre approval of the of the label for disease going to can't be preemption can there yes it can because we are preempting via the structure function route not the disease claim route so we've got a structure function claim which closely tracks you know it's basically the same thing as what the f d a has said this is a proper structure function claims and a claim with the structure function and that's the part that's preempted because he's turning it into a disease claim he's turning he's trying to re characterize a preemptive claim on structure function as a disease claim and then prove that