well you've had a preview good morning your honour's may it please the court mark mosher on behalf of proctor and gamble judge galleries here i'd like to start with with the with the statement you made that this seems like a good case for class actions i want to be very clear about what our position is we're not asking the court to adopt any rule that would preclude a class certification in a class action like this or to categorically hold that head amik regression analysis could never establish a price premium what we really think we're dealing with here and what the fundamental error here is the absence of evidence in this record to support that determination in the court suggested you know if we look go right back to the to the experts in the in the proof of injury that maybe that would justify that be fair and what is not you know that's really it we think it's important as you heard in the last argument that the model be run because i think what's really missing here you know if you look at what they're saying is the price paid at retail was inflated because of this representation but what the evidence shows is that the retailer sets the price at its discretion and we have no evidence of how or why and why you know when they talk about that perhaps this regression analysis well if it fails it's going to fail for the entire class so it's a it's a common question but there's no reason to know that's the case you can imagine a situation where perhaps some retailers charge a price premium some retailers don't and then it's an individual choice question and then the model that's happened in the market i mean if we are talking about market  there's no reason to think under basic economic theory that the pricing model used by a corner store in manhattan that maybe has two or three products for sale in a target superstore in upstate new york that sells everything that they're going to price them the same way and your expert very much did not say that this attribute leads to a higher price he has not done the calculation he cannot express any opinion on that in our experts say he's expressed a willingness to try to show that our experts have shown that's going to be difficult and may not be possible no one is saying he donek regression analysis always fails and even their side doesn't say it always succeeds it really and if you get into how the model operates what what we are says it's it's an iterative process and you have to get the data you've got to make sure you've got sufficient data you've got to run the model you've got it or eight and it can fail and we don't know whether it's going to succeed or fail in telling runs it and this you know taking it a step farther if you look at compare this to the economic models of price premium in both zyprexa and in mclachlan there you had a calculation of a price premium and the court said we're still going to scrutinize that see if what's underlying these conclusions are actually showing price premium and doing so on a class wide basis or whether this economic analysis is masking individualize differences if if mr weir you know the play of the said they're just going to show after talk this and i want to get back to that point then of what whether judge weinstein implicitly decided this and this is critical there in the current record the record on which was the certified there is no evidence of a class white injury there is a promise to try to calculate that there is a dispute on whether or not that can actually be done and there is a suggestion that maybe our argument is that a judge needs to have the mechanical incantation of way the competing evidence and i i favor this and that shouldn't we implicitly think judge weinstein resolved this but on special appendix p just one twenty five to one twenty six judge weinstein it's not a silencer they were relying on he explained to us he said this battle of the experts on price differential is premature he doesn't have to decide any explain why because he thought that our criticisms of we're is model just go to injury or sorry excuse me to damages and battles over damages don't always and don't need to be resolved at the class certification stage and that's position here is there's no damages issue we agree with you that he said that it was premature do we send it back jacobson remain and say we don't think it's really matures tell us what you know we don't  don't think you know this court needs to because they don't there's it's kind of conceded that the evidence wasn't put in the record right in that it hasn't been conducted he hasn't said you haven't insisted in the record according to what you just circumstances of a given to using writers and it's a given case but yeah that's that's what i mean here you could have a situation in which the model succeeds in showing as zero price premium and that would be a successful model in which we would win on the merits our position is the data even exists to do this that was one and then there were other criticisms can you marshal the right so on the model itself or you know in a critical aspect is choosing proper and appropriate compared or products and what are you going to m against and he hasn't said what those are in that bag a speck of this difference when you're dealing with a you know one's organic and one's not you can imagine that model actually representing what a consumer does you stand in the supermarket and you see regular exe in organic and you purposes is misrepresented that in a case like that you can never have a class action we're not we're not i mean that how how do you go about having a class action in a situation where somebody misrepresents in the misrepresentation is something that would make something more news and then you say but we can't compare because this is something that's you know i mean we think that it's going to be difficult to do we don't think the court though has to rule it out we think at this point we have valid criticisms of why this is unlikely to s says he has workarounds but the stage was that important the stage because if the model doesn't provide an answer there's no class wide proof of injury this goes back to the very beginning where you said set forth a persuasive model in which they calculate a price premium there's no reason to reach that point just to go back to my earlier question if they developed a consumer  that might be enough data to support the with question analysis and provide real analysis of the premier premium if any associated with the flexibility it might be i think the resistance we've seen here doing so i think this survey would almost certainly show individualized preferences in that many consumers don't value that as we show in the record twenty five percent to twenty five percent of people purchase fresh mates with no intent to flush them they keep them in their car they take them on camping trips they put them in the stroller to take to the playground with their child they put them in the kitchen so if you did an individual ice survey of how the five you're going to see a lot of people don't place value on the flushable you know the most important aspect of this a shows is how effective they are in cleaning or you don't buy something just because of the method of disposal you like the way it works and a lot of people like the product to use or no for the entire class and if and if some value it and some don't you can't do that it has been individualized inquiry at what point can for on if we were to soviet to say the class for then gets limited to bruce who are paying more doesn't that mean that you then define the class in terms of those who pay more if there is a common and large group of people who are willing to pay more isn't that of no because it would require individualized so i think that you are mistaking the alliance and causation if i mean it doesn't really matter why i buy it if there is a premium so see it is some price premium associated with the flush ability regardless of why a consumers if ten or twenty percent of consumers are buying it for another reason ok that's their reason but we are isn't that a common issue that cuts across consumers regardless of their answers to the survey as to why they bought the product so the survey i want to do this the survey is getting at the value that an individual person places on it which is different than the price premium which is goes by what the retailer sets on that end that's which is what they've relied on right of this is a different type of damage and why we're not showing reliance reliance requirement would would say that you know we would have to be arguing that each purchaser would have to show that they were to purchase the product but for the misrepresentation that's you know a transaction causation that's reliance what we're saying for causation if you're going to say that the representation caused a price premium you need a chain of causation that shows how the representation reflected in a higher price premium but if there is a higher price if he is right yes then it doesn't matter whether ards our position is that if somebody if the flush ability representation was true for somebody that then they were not injured even if there is a price premium right if there is a higher price e consumer products you can't just assume all valuable attributes result in a higher price we need instead need a theory of causation and we need to determine whether common evidence can be used to establish that in towards generally cause in fact can never be shown actually it is always circumstantial even if i punch you in i cannot show that it was my punching that broke your nose rather of and you almighty chose that moment to break your nose but the fact that my name punching so much increases  chances of your nose being broken that we take it for granted that it was a book for cause the less like believe a causal link the link between punching and breaking the more difficult evidence of an especially when we consider here that this the causal chain to leading to the price premium probably the most important factor is the retailer who is setting the price and at this stage we don't know anything about what factors  no basis to say they all act in the same way and if individual retailers of some are doing a premium and some are not some are putting them on say all when it's on sale the premium goes away that's going to affect the price individually so you get into a more difficult thing that he would buy fresh mates again if he had confidence they would not clog his pipes and sewer systems that is sufficient to confer standing for injunctive relief knowledge that a label was forced in the past does not equate to knowledge that will remain for us in the future as the court of appeals held in davidson against kimberly clark there is standing for injunctive relief if the consumer is unable to rely on the products label and so you say that  there are three very important reasons why the court should adopt the only court of appeals case dealing with flushable wipes and class actions kimberly and matt is that by adopting the kimberly analysis you avoid the undermining of the new york consumer protection act and their ridiculous result is if you know there's a wrong you can't do a thing to stop it and the only one who can stop it is someone doesn't know about it so it avoids that adopting kambli also avoids t happen is that consumers in the future will bring the damage claims in federal court and bring their injunction claims in state court so you can have a multiplicity of cases dealing with some the same facts waste  should have run his model unless he runs as a model you don't know if it's going to work and not well the courts have repeatedly held that the expert does not have to run his model at the class certification stage he just has to show the likely weighing different experts analyses on class action under a preponderance standard where you have conflicts and i'm focusing on the question of can this analysis be run in the circumstances this case understanding that there are many circumstances in which this type of analysis might be able to establish a price premium so tell me why the judge here did enough that we know that he resolved that question well what the judge he had testimony he had two days of evidence or hearings on this case before class certification he had each expert deliver two reports the main report and a rebuttal report doesn't like the whole method and she's i get that in various federal courts and have laws that she then argue that she doubts that mr ware can show the difference in price whether it's two cents or fifty cents or sixty cents says that's a relevant because under the statutory damages in new york if you show any price difference whether it's one cent or dollar you get statutory damages so what they took with his words out of context in their brief which i point not brief he didn't say that you know he doesn't have to decide if he said i don't have to decide who is right on the price differential amount because it's a relative in this particular case  in that case try to gamble we've been at this case now for four years they've never denied they charge a premium for the flexibility and tribute they have a lab set up for flush ability testing they have no i don't have an employee's dealing with possibility they don't really deny it and i in court really deny they don't deny it i don't know i mean they haven't admitted it but they have denied it which it strains you would think if they can say there is no price differential they would say we don't charge one in terms of class certification are we allowed to say that here is something they would see to show a price differential and they never come in and say that it does not that we shall diet coke at the same price as regular coke are we allowed on that basis to say there is a commonality or do we well that that is a premium now will get passed on class wide to the consumers because retail pricing is based on a walk up the course so class why do they charge the middleman a higher price of momentum to pass it on to the consumes it's basic retailers he used the data from the post sales and judge paul he said that was enough and ten days ago judge prodi certified it consume a class action approving hadronic regression analysis so and said you don't have to is called for cross examine ation at trial and as was pointed out maybe help me with this that may be true in many in many cases but in this case where we're trying to assess predominance it's the ability to establish a price premium that allows us to say according to your theory they can establish injury on a class wide basis and they can establish causation on a class wide basis or two elements so doesn't that make in this case the concerns about the expert that much more salient well that be true i think in any consumer class action it's based on a price premium yes price people which most of them are a lot of some people who due to a misrepresentation might be willing to pay more for that and some others might be willing to pay more but not as much more but that doesn't mean that  commonality doesn't predominate over the difference correct intriguing occurs at the cash register doesn't occur afterwards who courts have held it doesn't matter why you buy the product if you're paying more for product than you should have paid because of this you go the other way it's the you got some very bad effects just mean that you could never enjoy because until you know that there's something wrong you play brecht there of that's a catch twenty two that they expanded their case to cover forty nine states every state but new york and then they settled that case went to the federal court and told the federal court you've they've met rule twenty three cars under the a i you can show down just class why didn't all of you can show injury class white well causation class white they asked the court to certify a forty nine state class action settlement of flushable wipes and the court did so expert constructed a model ran the model and showed he thought a price premium we disagree we thought the model itself was flawed but they did the work and makes it much different than here they did a consumer survey of what consumers  california think flushable means again we challenged it we thought it was a flawed survey but the district court there had evidence before and it was weighing whether the evidence they put forward was sufficient and we thought it wasn't when the court certified it what happens is what you see when a class is certified it often leads to settlement here they're trying to keep a class settled with a class certified without even doing that work without even putting for the model  standing you know if anyone is going to have standing it's hard to see that it's mr belfiore who purchased fresh meats one time february twenty fourth teen more than five years ago and what he testified to is that he would purchase a product that he thought was flushable so he would purchase a different product that's not what the standing issue goes to he seeking an injunction that would change the label and what the ninth circuit said in davidson which was decided on a motion to dismiss the plaintiff there had said but he had no reason to do it because judge ones who do you think incorrectly said there was standing because of this generic new york but that he could a man and perhaps of why didn't procter and gamble make denied that there is an overpriced claim why haven't they put forth a beyond the point of burden of proof what we have said is that the retail price which is what's relevant here is set at the sole discretion of the retailer you know they suggested maybe we charge a higher price for a whole cell no evidence of the record in the record of that they took discovery on that they haven't even tried to show that so what we have denied is that we set the retail price and they need to show that and that's their burden and they failed to do so thank you thank you beth very well