this is the point of nd appeal from a decision of the district court in this case which concerns apple's undisclosed and unprecedented agreement with eighteen team ability to force i phone customers to use  exclusive carrier for voice and data service for their cellular phones not just during the initial service period for the phone but also thereafter excuse me the  the monopolization of i phone voice and data service was inforced by technological features that apple built into the phones making it impossible for anyone who owned an i phone to obtain voice and data service from any carrier other than  in exchange for which apple received a thirty percent share of eighteen t s revenue from i phone voice and data service also an unprecedented and undisclosed arrangement between a cell phone maker and a wireless service  provider this case involves a single product the i phone sold in the primary market and a single aftermarket product i phone voice and data service which was sold by a single carrier eighteen thousand dollars mobility to all direct purchasers and a single non negotiable price all of those facts make this case particularly well suited for class certification and will serve to distinguish from those cases where perhaps close sort of what the court said exactly on page five of its decision is that dr warren bolton's declaration is essentially lacking any data driven analysis and that's where we think the district court committed error the court did not and i want to emphasize this the court did not conduct the kind of rigorous analysis of dr warren bolton's opinion expressed either in his original declaration or in his supplemental declaration that the court is required to conduct instead it's simply look for math and finding no mathematical equation populated with data and with a result the court concluded that it was impossible for dr warren bolton to meet the burden plaintiff's burden to show like you have to show that you're actually going to be able to prove damages on class one basis and an expert and i think it's a good one hundred and thirty seven that i do not expect to encounter any insurmountable difficulty you have the best you can come with yeah i've got this i'm going to be able to do it but doesn't actually show how he would do it why isn't it within the court's discretion to say that that's not enough well we we agree or i know that that that wouldn't be enough except that's not entirely truth about doing so so that instead of being forced upon consumers unknowingly consumers would know about the choice or the absence of choice i should say the other but for world that dr warren bolton described is what he called the truthfully non exclusive conclusion or another conclusion at the time when dr warren bolton rendered his opinion we didn't know and today we still don't know because we have not had enough discovery to be able to make that determination whether we will be able to prove it's more likely than not that apple would have continued to insist on exclusivity or apple would have abandoned it given the importance of the of the i phone and its exclusivity to both we think it more likely that it would be truthfully exclusive but carefully considered both but for worlds and he had a methodology that he described in his declaration which was completely ignored by the district court to assess both impact and damages in either of the two but for world if we if we think that one of the theories you would with respect to one of the theories the adequately showed that he could do in a classified basis and with respect to the other he didn't what would be the right result then the right result would be to instruct the court to certify a class with respect to that theory and not permit the court not permit the class to proceed on the alternative theory i don't think it's necessary for the court to do this because dr warren bolton describes how we he would approach damages in either case and what he says is in the truth rigorous analysis as to whether predominance has been met that hasn't been done yet well i think that that is correct the district court should in the st instance make that determination but the district court should be should be told in no uncertain terms that it is and that's the basis for her conclusion that that common issues in this case could not predominantly this court has never required such a data driven analysis in order to demonstrate either impact or damages the question of whether common issues predominate over individual issues is one that is it inherently tied to the nature of the both the product and the alleged any trust violation for example if this were a product that were sold not at a single price nationally but instead it negotiated prices where there were differences in the prices that were paid by various consumers it might be that the kind of data driven analysis that the district court was looking for would be necessary in order for an expert like dr warren bolton to separate out the effect of the monopolization from other factors such for example the ability of a large purchaser to negotiate a more favorable price than a smaller purchaser but here there was no evidence that there was any difference in the prices that were paid by anyone for i phone voice and data service  what is the limit on the ability of a plaintiff to get classification of all they have to say come in and say you know we don't have the data we don't have a model but here's an expert who says he's confident he could come up with a model and that's where the rubber meets the road and  that's what i can like to address thank you for asking the question what dr paul what dr warren bolton said is in the and i'd like to start with a truthfully non exclusive world because conceptually it's a little bit easier essentially apple would have to make i phones in such a way that they could be used on any on any available wireless network so the consumers would have choice and what he says is he says in the truthfully non exclusive world i would apply a benchmark analysis using the price for voice and data service that was charged by t mobile the most close competitor to eighteen to and he says this in this declaration and what he says is he says this is essential ie the kind of analysis that was undertaken by the plaintiff's expert in the st i phone case which we call apple one by simon wilkie and dr wilkie conducted a study and he used the data that was available to him then and he determined that there was a deviation in the price for i phone voice and data service that eighteen thousand was charging compared to the price for voice and data service that t mobile was charging before the i phone was introduced of the impact of the i phone on the price that consumers paid for i phone voice in their service and what dr warren bolton says is i believe that the same data and the same amasis albeit for a different time period because your honors know that in denying the motion for summary judgment on the class definition the judge gonzalez rogers change the parameters of the class a bit she said that the class period would only be after the expiration of the initial two year period so dr warren ball needed to address that or to the parameters of the case so he says using the same kind of data that dr wilkie collected in apple one and applying the same kind of benchmark analysis i will be able to calculate the impact for all class members all of whom paid the exact same rate for their  phone voice and data service though truthfully exclusive while the team evil dr warren bolton says once i complete that analysis i will venture discount that price differential back to the date of the purchase of the initial i phone because in the truthfully exclusive one on the team world he says that damage in the differential paid by consumers for voice and data service is felt in the total cost of ownership which included the purchase price for the phone and so he says in either case my starting methodology is with the benchmark analysis which is a widely accepted methodology no one here has criticized and no one here has suggested there isn't data to allow it to be done no one here has said that it isn't a valid method for for determining both impact and damages in any trust case the criticism here was you didn't do it you haven't done it yet and this court has not required that the work that the expert says will be done must be done in order to obtain class sort of occasion and so we believe that the flaw in the district analysis is that in fact the district court what for the analysis to have been completed rather than listening to the expert who explained in paragraph after paragraph not only in his initial declaration but also in his supplemental declaration which the court never even cited and never even discussed rather than consider in a detailed analysis of the proposal that dr war bolton laid out the court simply says i don't see the math and therefore it can't be met and that's the error that we believe the district court committed and if the court were to reverse and remand with instructions we would expect the district court to good morning your honor as they please the court josh rosencrantz representing apple your honour's plaintiffs have only themselves to blame for the predicament that they are in now after the district court judge narrowed the case drastically  summary judgment she repeatedly warned plaintiffs not to come back to her with the same showing on any trust impact that they had presented years before to judge where she said you've got to give me something new and different because this is a different case now either plaintiffs couldn't find impact on the new theory or they couldn't bother trying so now ten years into this case and just a me six months before a scheduled trial they submit an eleven page declaration that was totally devoid of substance their expert repeatedly confirmed that he did not yet have a model he just kept repeating the mantra the judge miller mentioned quote i do not expect to encounter any insurmountable difficulty in developing a model that's not a model that's to judge miller's point i got this the district court was right to ask during oral argument am i just supposed to take his word for it the answer is absolutely not that this was plaintiff's burden the supreme court now had the plaintiff the reasons that we presented both in our brief to this court and to the just record but most importantly it doesn't get you anywhere near the model of the theories the plaintiffs are or to kill a thing so for example this is not just about taking the period that was once five years and making it a different four year period this is about taking a model that was an entirely different and i trust theory it was on the theory that the moan when you bought an i phone there was an anti competitive monopolization of the market for your ability to to transfer to team mobile  dr wilkie in his own flawed way developed this valuation of that decision that you make here and now as to whether you can go to t mobile what happens now is we're talking about an after market that is two years away and there is nothing in dr wilkie's analysis that helps you figure out how does a customer how you value what a customer may or may not be deciding two years down the line and to the team model nothing that explains how you take that number that he's averaged out that and that's a good point i think that's an argument that should be made to the district court in terms of whether using a team will build service prices is appropriate as have benchmark the problem that i struggle with in this case is in reviewing the district courts and now assess as to why predominance is not satisfied the district court essentially said i can't fulfill my duty to conduct the rigorous analysis because there's no common methodology of assessing classify proof it's just basically there's no data driven model here so there's really nothing for me to really from the district court's analysis so my question is in looking at dr wilkie's declaration is there a common methodology of assessing classify damages or not and if that is a common methodology then i would want to see the district court explain why it's deficient we haven't even gotten to that so your your arguments regarding deficiency of the methodology to me  analysis for this very exotic theory that you can take a a price on the after market and or put take a value on the after market to two years of two years down the line and translated into a price differential that apple a non monopolist was going to was was going to change its price now i was saying that's an exotic  position my point here is that the doctor warrant is that dr warren bolton did not even describe how you can get from here to they are all he said it's really just one page  eat all he said was i will develop a model it's not that hard to do but there's a huge amount of work that is completely missing and it can't be wrong for the district court to say wait a minute you're translating this model into that you've given me nothing that can't be an abuse of discretion i've got nothing on which to conduct a rigorous analysis you are not letting me do my job what the district judge required here was nothing extraordinary it's  like she adopted a bright line rule that you need a regression analysis in every and i trust case nor even that you need an economic model in every and i trust case she just said on these facts you said that you were going to prove your and i trust impact with an economic model fine i'd like to see what that model is so i can do my job the circuits all agree that that is what is supposed to happen this was verdant to show that they had a sound methodology not just a theory for how you would go about doing it and if this court declares that it was an abuse of discretion for the district court to reject plaintiff's  cases from comcast to the st circuits case and assoc all over the d c circuits to cases in railfreight all of the plaintiffs there just made a stupid mistake they should never have presented a model at all they should have just written an eleven page declaration saying that my opinion is as a smart economist x result should occur with y in their y economic principles my opinion for example in kind cast is that the price differential really is accounted for by the antitrust violation i don't have a model yet and that is what dr warren bolton said about the i don't have a model yet but quote i do not expect to encounter any insurmountable difficulty essentially saying oh i don't have a model that's developed yet but i'm going to rely on dr will  models and so that's why i started by asking would it make any difference if dr wilkie's if he had for example cut and paste that the relevant portions of dr wilkie's analysis and inserted into her declaration with the district court then have a common methodology to at least gauge and reject the answer is no your honor it's not just a matter of the failure to cut and paste so let's do  example which is the model that plaintiffs are saying that they're really pressing there's just not enough to know how they are going to make of those two steps of translation from dr wilkie's model into the current theory of and i trust liability so dr warren bolton says he's going to figure out how much everyone would have liked the option to switch to team mobile at year two then figure out how they would value that option today how are you going to do that with what evidence are you going to show those two steps we don't know how is he going to show that how consumers a value that renewal market two years before it occurs does he have surveys does he have benchmarks is there any data anywhere that sheds light on this this is something dr wilkie couldn't help him with we also don't know how he's going to decide which consumers are relevant in figuring out how the market pressures would result and we also don't know dr warren bolden gives us nothing to get a handle on how apple would react to any market pressures bear in mind this is a world in which apple was charging in that period ninety nine dollars one hundred and ninety nine dollars and two hundred and ninety nine dollars it was not fluctuating prices by zero dollars fifty cents or five dollars here and they are depending upon very consumers  expectations dr warren bolton how to give the district court the goods to explain to the district court how he's going to make all all of those leaps in order for the district court to do her job and that is what the just record was saying i would just also add so on that t iemma all the critical flaw was the failure to provide me the t v theory the critical flaw was the failure to provide any meat on the bones of how you make these two steps but even on the t any model this court can affirm also simply on the basis of plaintiff's failure to sustain their burden the whole premise of the t n t theory is that everyone who buys an i phone is insured simply by losing the value of the option to choose to turn to team mobile that is two years down the law in but there is a huge problem with that there is an enormous class of an injured subclass of uninsured parties it is undisputed that there are millions of parties who did not renew and they were never going to renew they just put their phones in drawers or they upgraded and got a different phone they have no juror they have no injury because they didn't need or didn't want the option dr warren bolton leaves that entirely out of his analysis it's one of the reasons that the district court was saying it is devoid of analysis and it's how do you reconcile your position with our line of cases like most prominently plaskett middleman and say that that sort of individual is variation of whether you have damage or how much damage there is within the class doesn't defeat certification so your honor that there is a critical difference between this case and those cases in the cases that you're talking about you mentioned polaski there's layabout there's limbered plaintiffs are citing those cases in those cases stand for the proposition that differences in damages calculations that is individual differences from one plaintiff to another do not necessarily foreclose predominance but this case is not about individual calculation of damages it is about the core element of liability was there harm at all and was the harm proven on a class wide basis in every one of the cases plaintiffs cite polaski as a great example the plaintiffs there had established every element of the cause of action to prove liability impact and i trust impact is an element that is not satisfied here and if i may just  got two more minutes under whatever statute was it was at issue in those cases plaintiffs have shown plaintiffs had shown in those cases that there was an injury so you mention paul ascii this court conducted an extensive analysis of the injury and it held that the plaintiffs had suffered an injury under california law that was the unfair competition law because they were all subjected to the same practice that was a unique discipline for new law only then did the court consider this question of india with individual ised damages i'll give you another example labor it was a wage and hour class action injury was clear everyone was underpaid the only question was individual ised questions about liability about how much they should be paid which is wages times ours that is true of lambert and it's true of  just film as well this case is different because plaintiffs have to prove that everyone was injured in the way they said that they would prove that everyone was injured was with an economic model they had to demonstrate the model so let me just close with this and all circled back were a store did the way the district court exercised its discretion was a consequence of the choices that plaintiffs made this was their burden and they had ten record where the district court says to help solve this is not going to work you've got to come back with something better instead they did worse they chose to do to address the critical theory the plaintiffs are talking about here in literally a page said i will have a model i got this that is simply not good enough and it can't be an abuse of discretion for the district court to say you need me to you need to give me the goods in order for me to do a rigorous analysis if there are no further questions we respectfully request that the court  complaints that during the roman time period i phones were sold for either four hundred and ninety nine dollars or five hundred and ninety nine dollars and referred to paragraph seventeen of the complaint which appears on page twenty five dollars of the record as as for the pla changing their theory of the case that that's just simply legal hyperbole there's nothing at all that changed about the theory of the case the only thing that changed is the court's definition of the class and that happened well into the litigation during the motion for summary judgment on the class definition and the court rejected the same factual arguments that apple wants to make here about consumers having agreed and consumers maybe not having a green of what they knew and what they didn't know the court found that all of those questions were two declarations i think your honour's i think the issue here is that there is no analysis of what dr warren bolton says there's there's only a conclusion from what he doesn't say and what he doesn't say frankly isn't the end of the story the court needed to analyze what he did say how he did propose to compute the damages though not just the theoretical models that is the but for models but also the proposal of using a benchmark counsel for apple so there is no proposal exactly he says exactly how he's going to compute the damages and with respect to the evidence that dr wilkie presented i remind the court that dr wilkie step aeration and his analysis was accepted by then chief judge where as adequate to demonstrate impact and damages for purposes of certification when it went to judge were granted thank you