following the district court's denial or decertification actually of a previously certified class in this case brought under the telephone consumer protection act for facsimile advertisements this case presents actually an ideal opportunity for this court to clarify the law in this circuit and what ascertain ability to use in a rule twenty three b three class action and as part of that where the proper analytical home is or the issue of class member identification what do you do when there's a problem identifying the persons to whom any recovery is due the the two circuit courts that have  the rule itself doesn't talk about ascertain ability that's it's a totally judge made doctrine the only place rule twenty three actually mentions identification of class members is in rule twenty three c to be it dictates that in the twenty three b three class individual notice has to be given to all class members who can be identified through reasonable effort so the rule still contemplates situations where you can't identify class members  so those are the two two decisions that really drilled out and those two courts held to the extent there is in ascertain ability required or definite in this requirement it focuses on the class definition is it defined by objective criteria council before before we get there and i integrate you're probably right we're going to spend a great deal of time talking about ascertain ability but the district court in this case in decertifying the class the order really takes a belt and suspenders approach so in addition to ascertain ability the district court talks about commonality and predominance and in particular there seems to be some overlap in other words the same issue you're identifying and the district judge cites is being the reason why there's no commonality in predominance but i wonder whether we have to reach ascertain ability because with respect to predominance he says look we got to we got to have all these many trials and so there really aren't common issues of fact in law that are shared among the class members that in fact the major issue will be figure out who's in the class and who's not in the class why can't we affirm on that ground right i understand maybe i should take one step back and just acknowledge the factual problem that led to the district court's commonality ruling predominance ruling in ascertain ability ruling was that in this case we have the target list of facts numbers that the defendants paid less facts to some the facts as to we have the invoices from west bank showing what percentage of those transmissions were successful  eighty percent but we do not have the facts transmission logs we we always seek but we do not always get showing specifically which numbers successful receive the transmission and which numbers did not receive the transmission so from that the district court said well you can't identify the class members so ascertain ability is not met and for the same reason based on the same factual set of facts there's no commonality and there's no predominance so i just wanted to get that background out there to answer your question the that set of that question of identifying class members has nothing to do with commonality that is a minimal requirement under twenty three a two it's met if there is one question one single question  will independently meet the minimal twenty three a two standard but on predominance i mean that's i think the tougher one for you because if he may be right that there's common issues of want fact in the might be several of them but if if the district court views the case requiring eighty percent of the court's time or ninety percent of the court's time figuring out who the class members are in holding these many trials it seems to me that the district court didn't abuse its crash and saying there's no that common issues don't for dominick i understand and i think predominance is where the stronger argument for the defendants but that does presume that identifying the class members each individual class member with one hundred percent certainty is a requirement to entering a class wide judgement we argue that's not the case that the court can enter in aggregate judgment because we know the number of violations there are thirty five thousand two hundred twelve we know the statutory damages is a percent of the people respond we cypre the rest of the money to do a proper reception which hasn't really been briefed yet those are issues about claims administration how do we distribute the recovery the aggregate judgment in the aggregate damages and judge benton's concurrence in the denial of the petition for rehearing in the tyson foods case that would have to the supreme court who for kayo versus tyson foods you talked about aggregate damages for the  class and there's there's a large body of case law what do you do with residual funds when you have a class action judgment the ninth circuit dealt with that in the six mexican workers case that we discussed quite a bit in our briefs in that case the district court certify the class of migrant workers who they knew they would never be able to locate conducted the class trial entered the class judgment and then entered orders for the part for the plaintiffs to try to identify as many of the second so so that is now the defense will argue well we argue the the the issue of class member identification is an issue of superiority under the rule twenty three b three superiority property curley manageability that's where you deal with issues about giving people notice identifying them to pay them their money in processing claims that sort of thing the defendants arguing they rightly point out that the same argument was rejected circuit in sandusky wellness center versus a s d it's another case i argued you argue to be you didn't cite it in my opening brief i admit that and maybe i should have front of that might have been a good idea i can see that  so what's wrong with saying that the class is not the superior vehicle here the the court could say that the district court never addressed superiority it didn't get there so it didn't analyze the question properly and the reason it makes a difference although i couldn't we analyze  properly and say it's not superior you can't you can and you can you can decide that question and we think you should decide that it is superior because there is one big difference between this case and a s d in terms of first under superiority the reason it matters whether it's a freestanding ascertain ability requirement with the plaintiff bears the burden of proof or if it's rule twenty three superior orders because to periodic is a comparative balancing test you weigh the costs and benefits of class action of class certification including the deterrent purpose of the underlying substantive law the t c p ames case now a s d the defendants were sending fax advertisements to their customers these were people they knew and people many of whom gave prior press invitation or permission or consent to send fax advertisements and under those circumstances the sixth circuit held well even if the district court had reached superiority we hold that snaps a period because you know those that corporate deterrence consideration doesn't outweigh the management difficulties the opposite is the case in this case the defendants in this case it's undisputed they bought it they bought lists of fax numbers for doctors in certain practices areas that they wanted to target they paid a fax broadcast those facts advertisements to those numbers and never tried to get consent from those people they had no established business relationship with those people in fact they took the the purchased lists and scrubbed them to remove their current clients because they wanted to target only prospective provide an opportunity to identify the members of the class and so my question is did you go into that with the district court did was there a presentation to the disc recorded in the point of exactly how this would be accomplished other than just a general reference to additional proceedings or we saw a certain number of many trials where we argued for a claims administration procedure in our in our brief suppose you did your lab are right on the procedure can we found that in the record i don't think you can find for example a claim for that we were proposing that the class member attest to having received the facts and having so i notice that you're telling us today but did you did you present that to the district court can we find that in the record and if it's not isn't that a problem that the court was operating in a vacuum as reformers in waiting and in considering this this issue and how this determination would take place that it was presented with nothing in any detail we argued it in opposition to the motion to d i hear from you mr kelly thank you your writing me please the court my name is don kelly and i represent the apple we in this case feign centers of excellence and it is not an abuse of discretion for a district court to follow a law that circuit and on that basis we asked the court to affirm the decertification order below and there are two main reasons why that that order was correct one factually it aligns with met tox mickey and to the subsequent procedural facts of this case support what judge perry did here and in this regard following up on the questions of appellant counsel this case comes before the court by way of a decertification order not a refusal to certify and the the procedure now that is theoretically placed before this court was never proposed in detail to judge perry or which is further damning in view of the fact that the solution plaintive is advocating in the abstract now it indicted in damned previously in the case and in this regard the issue of claim and identification has been in this case a long time and what's been happening is in that issue has been kicked down and kicked down the procedural path back in december of two thousand and thirteen when judge perry certified the class she acknowledged certain issues with identifying claimants that were brought to her attention in this regard twenty seven percent of the records in the senate list didn't show a current contact an additional thirty percent showed that the name of the current holder of a contact was not the one on the send list for info usa why is that relevant because two months later defendant sought to follow up on this issue and proposed taking some limited depositions of the claimants to flesh this out this specific issue here receipt of the fact we were thwarted with that we were opposed successfully by plaintive some of the point were raised our cellular here from the standpoint of ascertain ability commonality predominance and superiority and i think it's important and helpful to the court to hear oh wow counsel on the initial two commonality and predominant in a particular commonality the tax the role twenty three as it applies to commonality talks about questions of law or fact common to class members and what they predominantly predominate over any questions affecting only individual members and so it seems to presume that the predominance of the commonality inquiry go to those people who have already been deemed part of a class not to the initial determination of whether or not or not and if there are nation of who is in the class and i'm wondering if you can address it seems that you know whatever the merits of what the district court did it didn't really comply with the language of rule twenty three and what's your response to that the response ron or is this again this is the core looking back from decertification perspective not a refusal and as has been pointed out it's always in this records province to address issues of manageability and issues like that and whether it terms of commonality in predominance i don't think is is a fatal issue at all in fact what is highlighted in judge perry's ruling is there is no common evidence that's the problem there actually will have to be hearing for everyone to determine whether they fit the claimant status in this case whether you received the facts and now nine or ten years after as judge perry indicated the many years that have elapsed so i think her ruling stands both in that respect as well from the standpoint that we all of these cases tell us that the district court has the power to go back and reexamine the salubrity of her certification order and these distressing standards seems even higher for in that regard but there are there are common questions of fact i mean opposing counsel highlighted four of that matters you know the question of you know did they did they attempt to send a fax what was the content of that fax and those seem to affect the class members not the initial determination of who the classes and so isn't that enough to get by at least commonality and predominant i would say no i would say it's the judge's discretion to determine what will predominate and that's exactly what we have here i mean in every case there's always going to be some level of redundancy amongst class members here but it's the devolves to the district court to determine her discretion or its discretion which issue is going to predominate in take her time and in this case that's a serious inquiry when you're talking about at least ten thousand people or forty five thousand people who don't belong in the class and met talks explain specifically that you can't sue unless you're claimant or receive the facts so with regard to the well let me ask you this this is a question that was raised in the  so this outcome really rewards the perpetrator so to speak who doesn't keep good records it would reward that in that case but in here in this case the courts have cited that this is not a deterren case because we never had the records never that's not disputed west facts never gave in to us your honor in fact my client never even heard the t c p into the lawsuit was filed we've never had him this is not this does not fit those cases and we massive junk fax operation for you correct well i would assume my client knew there was something wrong with that too so unfortunately i mean they're defunct you can write it will deter your client from doing it again and it would cause other people to learn the law conceivably but again brain centers is defunct so at this point i mean the deterrence element is a practical consideration so getting back to the issues in this case the factual issues and whether or not you know whether this is properly considered period or says her dominance i don't think it matters your honor i agree with the sixth circuit and for these reasons you mean you that we can infer one way or the other doesn't matter under which prong you don't get you don't think there's a correct way to do it no no i think the deficits here in the facts as the circuit i mean the said these problems wouldn't change our analysis whether they were done on under superiority predominance or ascertain ability that's what i understand that i was just wondering if you had a view on what's the proper way to do it because we have to write an opinion about it that set the law the circuit potentially taking into account the prior decisions and taking as a given that you think you win under any approach there still might be an approach that is the better way to do the law understood but if you don't have a view on it i will take your answer from before i actually i do have an objective view a part in this case i think it fits nicely under the ascertain ability standard in in this circuit i do i don't and that's the standard ascertain ability standard because it doesn't require any administrative feasibility of of doing any burden of record search so but in this case again i don't think it actually matters i don't think the court actually has to get there to determine whether that's a critical determination because we have facts in this case which show that  when it was requested to inquire of the same people we want to inquire now the argument was made it would be unfounded speculation that class members would have relevant evidence as to receipt of a fax a counsel here's my problem with your ascertain ability argument the way it's been defined is whether or not there's objective criteria that allow you to figure out who's in the class and the criteria here is objective it's did you or did you not actually receive the facts and i think your argument is that well you need you need objective evidence not subjective evidence but i don't think ascertain ability tops at all about subjectivity of the average us there's a difference we try criterion abbots how would you resolve what i think is an extension of our case law for a go your route you are correct because ascertain ability is even stated under rule twenty three and so far as that i mean met cox tells you that it's not appropriate to certify when there is objective evidence in there and what we have is in terms of this the question is do we have objective evidence and something else it's a balance of what the courts are looking for in their you can look at the city select case or the court just said look we're not saying because we don't we haven't seen the records in this case we can't make a determination that's the determination is what we have here sufficient to provide ascertain ability why is it sufficient that we have objective criteria that you can basically be identified and identification of classes ascertainable at least as a theoretical matter because we have an objective criteria for figuring out who's in the class well or to provide a due process concerns reliability of the proceedings and things of that nature i mean this is exactly what we're trying to fathom here i mean the idea that you can just simply leave it to class members eight nine ten years later to sit there and file an affidavit and say i got the facts where where where does that lead us well we're going to sit there you have to investigate it was the process in there so the request i mean the requirement of objective criteria is a safeguard prevent us from getting here we don't know if you have a case for example to quote the seventh circuit if you've got a two dollar bottle of wesson oil only a lunatic would file us individual claim for that here we've got a different situation we've got a five hundred dollars recovery in here so it provides the safeguards for the recovery but by by going beyond just objective criterion our quire an objective evidence and other words something objective objective to show that they're part of the class aren't you really asking us to in effect adopt  third circuit's high standard for ascertain ability no i'm not i'm asking you to follow med talks and the key med talk specifically says the objective evidence are the facts logs showing receipt that's what judge perry keyed in on that exact addressed the other issues with the facts but as long as we could show who originally got the facts that would be one step in the right direction but right now we're we're being asked to use affidavits and claim forms when those are damned and indicted four years ago as a reasonable fifty that was fifty and we referenced these in our brief and the follow up one was a document fifty six where we asked the court how about a questionnaire if depositions will work and when we were asked specifically one of the one of the ten questions we asked did the person filling the questionnaire recall receiving the facts the argument was it's not relevant from the plaintiff and we were denied that opportunity so now these same questions are somehow relevant this same procedure is somehow curative i don't believe that's a fair of a fair position to take in this case and so it's our view that regardless of what we may think about what are the proper confines parameters of ascertain ability in this case what we know from med talks and mickey and the facts in this case and the positions taken judge perry's decision was not an abus discretion so it's on those basis that we would request the court and ask the court respectfully to affirm her decision thank you thank you very much f class of all persons sent the faxes regardless of whether the transmissions were successful or not there are a number of cases that go that way after meant tox sandusky versus met tox we agreed that only the successful transmissions are action that the attempted transmissions are not actionable so the posture of what we were seeking in terms of classification changed i still don't think discovery of class members would be necessary we know they are out there we know the number of successful transmissions we know the number of the c p a violations so the issue is how do you distribute a recovery assuming that we win which we have not done of course but defense counsel talked about well an ascertain ability in the circuit writer's asked him what's the best way to decide this issue about classroom or identification council said ascertain ability you have to make sure that there's a feasible mechanism for identifying people that is exactly what the third circuit's heightened ascertain ability standard is that standard was presented to this court and sandusky versus matt docs it's a case i argued at that time the split was between the six and seven circuits and rico so the six circuit caracas the name of the case that imposed the heightened ascertain ability requirement and this court said no we're not no we're not going to adopt the heightened third circuit standard because that's what the district court basically applied in that case we required a method for identifying class members and the court reversed that reversed that denial of classification so the one thing we can say for sure about the long the circuit is that it does not follow the third circuit cited standard aside from that mickey get if you read it the way the defendant propose it brings the third circuit standard back in because it says class number identification requires a separate discussion of ascertain ability so in that circumstance and we are doing our briefs the earlier panel decision controls and the third circuit identification requirement is not part of the circuits ascertain ability at the very least there's a there's a serious conflict there and the defendant's overall position seems to be well classification should be denied so it doesn't matter how you get there and we're asking this court to look beyond this one t c p a case in recognized that district courts in the circuit need to know what standards to apply what is ascertain ability should we follow mullins and  and analyze these concerns under a balancing test in twenty three b three superiority or is it a standalone requirement the plaintiff has the burden of proving on its own and even if the result turns out the same in this individual t c p a case it's worth getting to the right getting to the same answer the right way so that in future cases the district nurse will know what to do and the practitioners break we will know what they have to plead and what they have to prove all right there is one issue about