six months prior to this cordes simple decision in the end re deepwater horizon case a case that is occupied many days and nights of this court since that time three years ago seven out of two hundred seventy seven individual named plaintiffs have had their day in court seven out of two hundred seventy seven two hundred seventy breach of contract claims remain that is the practical reality of what has transpired as a result of the district court's denial of class certification where you could have sought interlocutory appeal couldn't you we could have done so you absolutely right we could have done so we chose not to we decided to proceed with the seven claims of the seven individual plaintiffs because that is what they wanted they wanted their day in court and they wanted their claims are told at tr and we had to respect that decision on behalf of those seven individuals at this rate these breach of contract cause of action will be resolved in some thirty years the district didn't know what you are saying is your clients are not adequate representatives or perhaps not typical if they wanted to go to trial and hang that hang the rest of the of the class in the balance pending their right to go to trial well your honor i would respectfully disagree that the clients at that stage knew that they had two options a to take an interlocutory appeal or b to proceed to trial without any prejudice at that point to either in their ability to argue later for class or or for the ability of the others to argue for class cert otherwise there would be a mechanism in place that would mandate that it denial of classification would require an immediate appeal and that's not the standard they had an option in they chose to proceed to trial  district court erred in failing to grant class certification on the displaced relocated in obstructed view claims each of those claims had common issues that predominated and i'm going to focus today on on but  first for the displaced class did the n f l breach its contract by failing to provide the seat as promised on the ticket the tickets of course were uniform for each and every fan that attend breach its contract by failing to provide the seat as promised on the ticket for the obstructed view class did the n f l breach its contract by failing to provide an unobstructed view of a the field and be the video board in the air above the field namely for punts field goals etc as this court concluded in deep water in a very thorough analysis quote the face trial of common issues in this case what undoubtedly prevent the repetitious related geishas of these common issues by each individual claimant and in fact in deep water on page eight eleven of that detailed opinion this court discussed the principle requirement of the supreme court's decision in walmart and described it as follows the principle requirement of wal mart is merely a single common contention that enables the class action quote to generate common answers apt to drive the resolution of the litigation these common answers may indeed relate to the injuries effects experienced by the class members but they may also relate to the defendant's injuries conduct and then they quote even a single common question will do and in this instance we had the similar question as to whether the national football league breached its contract with the fans as it related to the displaced relocated and obstructed view classes and yet despite that fact we are now left to litigate two hundred seventy seven at a minimum breach of contract claims on behalf of these stands as well as countless others because and may i ask you what happened are you involved in the greco p jones case i don't know what's happened to that one but their case is presently stayed and it's in the throngs of discovery and what's the difference between that case in this case that case will involve probably no fewer than forty different trials my point is it's too high i mean all i know is that it says it's two hundred seventy three ticket holders in a separate case and i just wondered so you got you're representing another group of plaintiffs in that case is that right that yes your honor here here is this with a display stop structed or relocated all of the above suspenders approach and file on their behalf so as to protect their rights as this case worked its way through the system that's why that case was filed ok so you ok so we took a belt and suspenders approach there are plaintiffs within that case that are obstructed relocated as well as displaced and then who it's in the third circuit case we have no connection with the with the third circuit case those that was one or two i believe plaintiffs have filed on their own in connection with the thought of class action i don't believe  ok the district court error in failing to grant class sort of occasion in this case there were numerous common issues that could have been resolved and instead we're left now with this quagmire where we have to go and litigate each of these cases each of the breach of contract cause of action etc any suggestion to this panel that the national football league has conceded liability in breach of contract is completely erroneous and the panel should ask for a record citation as to where their brief says they didn't so it seems to me if it if they hadn't conceded it before this appeal may have conceded it now well your honor they serve on the matter on the matter of the displaced holder so i don't think they conceded on the other but  e your honor they actually speak out of both sides of their mouth because i live in gated the trial in dallas across two weeks and i can assure you that there was not a concession on breach of contract and the panel need not look any further than the verdict form to confirm that in the breach of contract question was on the verdict form and judge len would not allow that question on the verdict form had it been conceded they did not concede breach of contract they've never conceded breach of contract and nowhere in the record can they point to the fact where they conceded breach of contract and were guarded less even if they have conceded breach of contract as we cite in our brief that doesn't remove the question from the rule twenty three analysis in fact that would militate in favor of classification not against it well to the contrary we don't normally certify classes just for the purpose of damage it's what what the advantages gained the advantage that would be gained your honor would be that  contract question would be resolved with well let's assume argue endo that they just for the purposes i mean i don't want to interrupt the rest of your argument but so you know if you prefer to make your argument make your argument but in my experience i prefer to answer questions for i'd assume argue endo that they have now in fact if it's centrally conceded in their briefs whether or not before maybe it's in light of the jury verdict that they breach the contract with the displaced holders and the only issue remaining then is the extent of the damages and that depends on the seat that each person originally was assigned and the seat that they got at the at the football game and my understanding is that they those people were reassigned to sixty different blocks of seats throughout the stadium so some of them may actually have come out better but there there's three groups your honor there's the conceded relating to breach of contract all right and labor and ok right not not to the level sorry but your honor i don't believe that what you can do is argue against class or vacation of the district court proceed to a trial and then wait until you're up on and all of a sudden concede in your brief we can see breach of contract and then that allows you to uphold the decision of the district court rate leading to the rule twenty three analysis the rule twenty three analysis that is now conducted by this panel needs to be the same analysis that occurred at the time the district court rejected class certification and so in any event the breach of contract among other things fledgling and decent and others was a common question that predominated it's an every one of the cases on  forward basis what do you do just for the sake of argument again your argument on the obstructed view is that you know that they that all of these thirteen hundred or whatever it was people got an obstructed view either of the field or of the video screen and one of the sub issues there is which one it was what were they up structed from seeing  in addition to class or vacation the iranians class or vacation determination the district court also erred considerably in dismissing the cowboys defendants at the rule twelve the six motion to dismiss stage the district court ignored the allegations in the complaint the well pled allegations the complaint did not give the benefit of the plaintiffs those the benefit of those allegations did not take those allegations and true as true and basically sat as judge and jury and rendered a decision on the allegations at that stage this was paid only improper that is not the standard at the twelve b six stage the district court did not converted to a motion for summary judgment and ruled out the twelve b six stage that the cowboy defendants were out of the case that none of the causes of action could continue to exist against the cowboys defense because she found that they were not  agents of the of the n f l and that the ticket arrangement the contractors for the n f l i don't believe that she she found that they were not agents of the n f l i believe that she made a determination that the contract was that they were not a party to the contract price but if you look at the contract the which is the ticket the ticket does not denote who the contracting parties are it does not state this is an agreement between the national football league fed who gets the money the n f l and the cowboys get a kickback right well that that was unclear in fact the there was an invoice or anyone didn't seem to think so but well i respectfully i respectfully disagree reply we detail all of the allegations in the complaint relating to the cowboys defendants that were in the complaint at the quote the sixty and the court's dismissal of claims against the cowboys defendants at that stage ignore the teachings of ashcroft it was to be a spectator to the game and she said that meant the game it didn't mean the video screen right she said that that meant the activities on the field and we decided if we disagree with that we believe the contract ok fine but so that's what i meant about obstructed view but we believe that the day you believe that the game is not just within the floorplan know what you believe i was just trying to show you that i i read this a couple weeks ago and i and i misremembered of it but not all of it the ter the term spectator seat of the game to the game as set forth in the ticket was at a minimum ambiguous if you tell us i understand i understand i'm only did this case proceed all the way to trial but the greco case the companion hasan two hundred thirty seven plaintiffs represented by the same plane as counsel has proceeded through discovery and a bellwether so that is the sequence wal mart be dukes case that is a confusion of which common issue we're talking about wal mart involved rule twenty three a one a one company which is where you only have to have one com basis for the district or denial of class certification here was that common issues did not predominate over individualized issues and the district court did exactly what this supreme with the supreme court's precedent and this court's precedent commands her to do in a finding that common issues did not predominate of an over individualized issues of particular class members and the class mechanism was not the superior method of result in the controversy to consider how the case would be tried or the displaced class there was reference made to whether liability was conceded from the beginning of the case there was never any dispute that every take it holder meant that it had not violated the ticket terms that was a legal issue that was decided by the district or in advance of trial as a district court predicted in her class certification decision it would occupy exactly zero time the only issue that was presented wrong and she did correctly forecasted or that individualized damages a particular class members and the damages that it is displaced receipt to substantiate their costs so their only basis for showing that they had damages was their testimony but besides that he denied class certification on numerosity that's correct and that's because the other about maybe reimbursement offers record of who had the original cd or what replacement seat any ticket holder received and so on and most of those plaintiffs claim that they were delayed in getting access to their seats and that was a separate breach of the contract and so any wor determine whether there was a liability or damages or even ascertained ability of the class a court would have to do an individual ising goring as to which si the person originally occupied what replacement seat they receive whether there was a difference in face value between the original c and replacement c and if there was no difference and i knew where there was some other basis to claim that it was an inferior seat and that you say some of the sixty g to the weather with better or not is relative in the sense of for example what they thought they were getting you know they were going to be closer to the yard versus you know they give obstruct relocated but they're you know in the burbs so he'd be right on point there is that there is differences for every ticket holder as to where they originally were and where they ended up and plain as i said in their brief that you can infer because the relocated seats were all originally in the juries in terms of the society the street aided you know claims so to speak you know right maybe this is too much have a fifty or sixty but just from a mechanical scam point though that you juries that basically decide the the the nuance parts as to kind of maybe you describe something that's beyond that every time you say you know there's always the pickle but i'm just asking cavuto process issue know a possibility here well there were me there are management tools available under rule twenty three c in the district or specifically concerned consider whether there's management tools should be implemented but the point here though is that it's an abuse indiscretions d and there is no case that you know the word that they have to adopt these management tools and in fact if the court does not find the common issues predominate over individualized issues the court is itself is dependent on where where the first seat was from where the second seat was rather i agree with that now the plaintiffs have property of different liability issue which would be if you didn't provide the exact see that it's a curse a breach of the contract but if you removed your right next to yourself or to the fifty yard line even if you could say that's a per se breach there are still be individualized issue whether you were damaged but these are governed by the c right that is sales or not but i guess they were becoming i'm assuming that they were applying texas law i could be wrong stadium claiming different instructions and judge jones you mentioned some claim obstructed view of the field something was struck to be or the video board and the threshold issue of whether any of those seats actually had an obstructed view is a highly individualized question where you couldn't see nearly any of the field if that picture is to be believed and it was accepted by the jury with the photos at page twenty nine of our brief which are other examples of proposed class members which i'll show clear view of the entire their claim for breach of contract was that there was a contractual obligation to provide a view of the center hundred years sgrena cowboys stadium there was no dispute that the super bowl forty five take it says nothing about the video nothing so i take it these were the named plaintiffs who went to trial or were they just it's actually a subset of the named plaintiffs i think for if you go back to the beginning of the case there were eleven plainness four dropped including one that dropped on the eve of trial and seven of seven of what was originally a to propose class representatives actually went well if but what impact does it have that the judge said you know even if we felt there was an abus discretion wouldn't her ruling on about the obstructed view on summary judgment if that's up for review right or not up for review when it wouldn't that happen and at the very least reduce the size  obstructed view of the field so i don't think that whatever does you know how do we know that well i mean we know that i guess we only know that if you by looking at what happened in the greco case and extrapolating from th is the super bowl everybody knows that this is a game but on monday and by giving the plaintiffs the benefit of the doubt any question they might have had about who the contracting party ones is resolved by the language of the  so the ticket speaks for itself but what we're hearing now is that the ticket may be ambiguous maybe implicitly the cowboys are going over this argument is being brought before this court for the first time on appeal  we've also heard that there's an issue here is that the what the cowboys did that might make them parties to this country the council explained that on pages twenty six to thirty of the reply agreed they set forth several factual allegations that they claim prove that that the cowboys were a party to this court getting to the merits of those and just a second what i'd like to point out first is that this is really being brought to this court for the first time in a reply if the court will turn refer to as a contracting and finally there is this agency principle and once again this is an issue that's being brought before this court for the first time on appeal and to the but to the extent this court is going to entertain it as the plaintiff's case cites that as in the case cited by plaintiffs clearly states it is an undisclosed principal for whom the agent can be held entirety of the district court's decision dismissing the cowboys defendants that is at issue in this appeal the entirety of that decision every town against the cowboys dependence is not contingent on that include it includes account for negligent misrepresentation and fraudulent concealment that separate apart from any contract claims a complaint has to be read on its face and the plaintiffs concealment claims after twelve p six days that isn't just being raised for the first time on the plank but judge jones you asked if your if the decision of summary judgment relating to the obstruct you has far reaching effects or something to that effect would have a stack absolutely undoubtedly it does and in fact i take exception to counsel statement that the remaining forty seven hundred claims largely involved obstructive used in the to the playing field they largely involve instructed used in the video so that it in and of itself shows why there is a common question there predominantly opinion on what this court does relating to the affirmation or rejection of that decision on summary judgment and we don't believe it can be a firm that potentially has very far reaching effects to the boundaries of those forty seven hundred individuals that i do want to touch on but she did ho that the only breach of contract for obstructed view was that of the feel correct and we this and we disagree with that and the reason why we disagree with that and this court need that it was an obstructed view of the stadium not of the field this is the c e o of the national football league this is a man who in twenty five years of experience in the league he has the ability to bind the national football league as to its position he was asked by me under oath unequivocally what's an obstructed view and he stated it's of the stadium not the field i'm mad basis alone summary judgment was inappropriate the relocated plans i want to be really clear about something no one was moved to the fifty yard line this is a fallacy it's an absolute fallacy does the panel really believe that there were fifty yard line seats available on the morning of the super bowl to give to fans who were relocated case is not going to charm i understand that but that's just simply not accurate and the fact of the matter is it's important for the panel to know how the league when about determining whether views were obstructed or not the seats were in at the time the tickets were printed so the way the league went about that is the same way in which the plaintiffs suggested in proposed would be handled relating to class certification namely through sight line drawings and analyses that's how the league did it when they printed the tickets that's how the league did it when they determined whether there were obstructions it's clear far from me what did your super bowls and things like that so i just i just wondered and they were largely made after we filed the lawsuit they were largely made after they filed it now after we filed the lawsuit but more importantly you had to have an actual receipt for an expense as opposed to just being able to attest that you had expended an expense but but clients at trial were to say able to testify that they spent so much for you know sort of pop or whatever yes but ok but but to put this in context we're talking down thousands of dollars our clients were not some fat cats that got these tickets from some corporation we're talking about people that in some cases took out a mortgage on their house to go to this once in a lifetime event now that may seem very strange to us me and but but in any event your honor we're talking about significant money that was spent in connection with this game and what you can't do is what you can't do is learn information that shows that you're not going to be able to fill your say going to the super bowl is right up there with you know anyway i'll keep that part you're really making this a dramatic event it's just one day we get your point i mean we're on