well thank you counsel we welcome you under these extraordinary circumstances i guess everybody is now used to zoom which i guess is both good and bad but  minutes that is go ahead sir thank you may please the court when determining whether common issues predominate over individual issues which is required before certifying a class under rule twenty three b three just record must of course conduct a rigorous analysis this analysis as this court hill just unable to know when it'll case means that one cannot simply take played as contentions at face value or must must quote make a prediction as to how they would play out a trial a fundamentally as shown by lana told by the supreme court of contest plaintiff cannot satisfy the burden of showing that common issues predominate their evidence that is unusable trial and here plaintiffs have no usable common evidence showing that off as members were injured by the alleged misconduct they have no useful evidence of the aggregate damages reportedly suffered by the class as a whole as undisputed that they have no evidence at all that there is any feasible means to determine what members of the class but fundamentally it's a question of simply looking at the rule the rule says they don't need to determine the common issues predominate it doesn't say alan is predominate but damages don't count  it is true that there are many cases where different plaintiffs with different records different evidence have found methods to allocate damages in a way that does not defeat the predominance of the common issues but it's a fact issue in every case it is a question of fact of the burden of proof upon plaintiffs and you need to find it's you need to have something you need to have some evidence out there and just show you that there is a feasible way of getting to the finish line there is a feasible way of someday figuring out how much money if any is is owed to each individual classroom but as cut short points out that's a matter of allocation not a matter of what is the predominant issue the predominant issue here is going to be the behavior of your client and was it by a lot of of the any trust laws if you succeed in saying it wasn't there is no issue at all as to damages damages here it can be said for all in the class they paid higher prices than they would have but for your clients and a competitive behavior this is not a situation where the the members of the class may not even be members because the need for determination of their lost profits or if the merits had a reliance factor here the common impact is clear is it not if you're out of the common the aggregate damages and you're not attacking that report on appeal are you oh it we certainly are one of the problems with the with report as stated just now it  that there's been any and i trust injury so even if the individual act of raising prices it of itself is not a model when taken in context of the other common evidence that was that would come from your client about it business practices isn't there or not in this record to determine that there is common evidence to demonstrate there's been anti trust behavior in the encouraging rebates or the film no longer together as shown by by the process x decision that came out just last week you see the prior question of what acts are in fact waffler unlawful the mode of analysis is not all gone together when there's an allegation of overarching but it's undisputed that even if wreckage is committed in this conduct through the safety claims or withdrawing the tablet product is undisputed there is no common evidence showing that that conduct injure a there's no common evidence of what they were told what they believed what they responded some of them never bought film and so couldn't have been tricked into anything some of them  on the question of is there common in fact the answer is that there's only common impact from producing there is no common impact from any other kind of alleged misconduct and if times perfectly lawful but don't quote soft which technique to try to convince people to try your product let me let me a follow up on that do you perceive the injury in fact of the any track the impact alleged by the class to be related to purchases of both the tablets and the film or is it only tablets they have alleged that both of those things have c damages if you're looking for whether there is common proof of damages to class members all class members by definition purchased branded templates and so all of them allegedly suffered a price increase but on the question of whether they were injured by buying more film and fewer generic tablets that question is not common to the class because there is no common evidence whatsoever that can be used to determine whether all these different methadone clinics  fact had their purchasing patters affected at all  mean i guess on that point what i was confused about is dr lam presents evidence with regard to both of the class as the find by the district court is only  film oh as well established was injured they jettisoned all the class members who bought film but not branded tablets because there's absolutely no way of showing any injury to them and so that the way the the damnedest model constructed is that the common injury alleged is that everyone paid a little bit more for branded to have woods that you otherwise would have and ninety five percent of the damages claimed comes from the allegation that some of the class members not most some of the class members bought a lot more film than they would have in a lot less generic tablets and they were right but i hope that does more to clarify than to confuse  if you have more please please go ahead but thank you judge right now and i do have a question about the control aspect we've never imposed  a heightened control requirement control over class counsel you tell us how that where that comes from it comes from two very simple concepts st of all lawyers answers to clients not the well informed bystander there's a lot of cases of talk about the need for a class represent to have to be at least minimally informed about the nature of the case and that's that and that's far from control yes it is and  is a different issue one needs to be minimally informed because otherwise one cannot protect the glass if you don't know anything about the system front of you but it's equally true that you're unable to protect the class if you don't know that you are in charge of the lawyers and not the other way around d class or vacation adequacy because as good a requirement mandates an inquiry into the willingness and ability of the representatives to take an active role in and control the litigation and to protect the interest of absentees the question before this court is whether it wants to make new class certification law in three ways that wreckage benckiser urges st wreck it asks you to expand hydrogen peroxide to allow piecemeal appellate review of the district courts motion to dismiss denial under the guise of a twenty three f proceeding nd reckitt asks that we now require not just aggregate damage calculations but also plans of allocation of common funds as a condition of rule twenty three b three certification and rd wreck it seeks to require this court to force class representatives to help draft pleadings and select the defendants to join in order to be found adequate under rule twenty three dollars a four on the st question  where where reckitt seeks to challenge judge goldberg's decision that records increase in tablet price can be part of an overarching any competitive scheme under section two but let let me considerations as an effective call to predominance and ultimately certification so one theoretical example is when dr lam speaks of injury in fact to those who purchased both tablets and film our film purchasers a subset of the class that was certified to go bird or should such purchasers be thought of as a separate class that are not part of this case but greenaway those direct purchasers only of the film are not part of her class the class is defined as direct purchasers of reckitt branded tablets it is those direct purchasers of branded tablets who were targeted by reckitt benckiser is conduct in this case conduct to suppress generic competition by forcing coercing prior to the advent of a generic tablet forcing in coercing those tablet purchasers to buy more and more film by shifting the market over to film there are there are several components but just for our purposes let's make it simple there are two components to your potential damages right the damages that arise from the purchase of tablets  three measures of damages and i'm going to go through them one by one what is there is everybody paid more for the tablets they purchased as a result of the tablet price increases the report of the scheme number two is that tablet purchasers were deprived of their ability to buy cheaper generic tablets because of the delay that wreck its conduct caused in generic entry using the the part of the scheme that targeted the rems creation process and then the rd impact that the rd measure of damage to the tablet purchasers is that some portion not all of it but some portion of of the film that they bought would have been instead generic tablets and that the increasing amounts of film because doctors and patients in managed care we're all coerced into not buying tablets anymore and instead buying film so there's three impact scheme and in fact judge rendell a reader and hovan camp have taken a look at product top schemes and have just as this court has decided that product top schemes  anti competitive when they coerce purchasers because of the very the very dynamic that your honor refers to the dynamic in particular is the fact that  as the f t c says in order to have a meaningful in order to have a meaningful generic market there needs to be a branded prescription base existing to be substituted on to immediate comment that your adversary is asking us to add to the requirements for classification a plan for an individual allocation of damages and you're aware that our circuit has the unique  consideration of ascertain ability is there any life blood to your adversary's argument out of our view about ascertain ability i know one goes to identifying who is actually a member of the class has been injured the other goes to so yes i'm happy i'm happy to do that in some ways judge words i'm the wrong lawyer with the wrong case to be asking questions about ascertain ability and but i'm going to try to answer your honor's question were direct purchasers as a consequence the defendant sales data almost always identifies who are class members are so we know our seventy two class members we know their sell to addresses and ship to addresses that said i think it's some i think it's very clear from the supreme court's decision in tyson foods that allocation plans even if there is some question as to ascertain ability are supposed to be reserved for the end of the case and the reason that i conclude that is because of the necessary inference that is drawn from the procedural posture of tyson foods at the time that it was decided it was decided after a verdict so it was decided well after class certification had been decided and in that case judge justice kennedy writing for the majority said that even at that time it was premature to determine the ways of distributing the award in figuring out who the injured vs an injured plaintiffs were he went on to say that the petitioner in the case who is the defendant may raise a challenge to the proposed method of allocation when the case returns to the district court for dispersal of the award at so that's a very late  stage point for allocation to be made and it has been it's been indorsed by the supreme court in one of the latest class certification decisions that it has issued that may be correct but i i'm curious as to why you haven't proffered and dr lam couldn't simply process a way to do allocation to me i think you're correct that data is there this is not an issue where you just don't know you know what everybody ought you do and you're going to have claim forms and it seems to me there could have been an easy statement saying you know this is this isn't a no brainer this is not the substance of this case this is at the end of it you know how to w plan which was submitted to judge goldberg with the motion for class or to for cation i know this court has full access to the underlying docket so the e c f number for the underlying docket is for seventy three dash fo which is our trial plan at page seven trial planned talks about allocation and it says the following allocation of monies recovered under the judgment would take place upon usual proceedings for the allocation one that was venue in the southern district of new york before chief judge mcmahon he was the economic expert his plan of allocation was just approved recently by judge mcmahon the court can see that the southern district of new york to sixteen and and and you can find his allocation plan in that case which would be very similar to that in this case but your honor is correct it is a pro rata allocation that's based division of the damage award whatever it might be takes away any need for individualized decision making absolutely i don't there's the prorated  allocation plans that we've done are formulaic and as a consequence there's there's really no need for any individual determinations in the claims of ministration process there are times when particular class members will challenge the amounts of brand or generic of the particular drug the defendant sales data attribute to them they have that opportunity under our claims administration process and the claims administrator in those rare events does adjudicate those claims and the district court ultimately hears those but has never had to in any case that i've ever been involved in or know of so yes there's never a need for individual eyes determinations because it's all done in a formula that formula is put to the class members with an opportunity to object that's another reason why i think allocation  should should be after class or vacation because at the end of the case because it's really something that the proposed class members need to know about when they're contemplating objecting to  a settlement for instance because the plan of allocation is under due process one of the things along with the fairness and adequacy of the settlement the fairness of the proposed attorney fees that class members can object to and can write to the court about would you acknowledge that this case is different from a case in which the class is defined as those who have lost profits absolutely you know under under this court's kaner decision which is a case that judge greenaway knows about because he was that district judge that presided over that case before it went to the rd circuit  it's very clear that direct purchaser cases for over charges under section four of the quite an act like this one are very different from from lost profits cases that the plaintiffs need not seek lost profits and that as we see in cases like presario from the th circuit which is the seminal decision on the class certify ability of lost profits cases there are they're difficult to certify we do not see their own admissions and with the law they they admitted serious libraries pages fifty seven dollars ten cents of the illegal herds which conduct does not include rebates or kobe coupons rebates and co pay coupons are two examples of sauce which tactics and the was the same all of the law about the cost price cost us is that a discount that does not go below the manufacturer's cost which is that it is not the case here is law increased in market penetration was a type of injury reduction in benchmark not just an increased bargaining power this case is about one type of injury that the according to the plaintiffs because the generic entry was impeded players had to pay more and they contend that that if that's happened that injury happened because of these combination of actions to be out there so explain to me why comcast is not your parent when comcast was about types of injuries and these disconnect between the one injury that was allowed to proceed and the report at issue that chatted about the others that were not because here we have injury from from awful causes injury that was caused by the decrease in the pace of film and contrast was the same kind of gas started with four theories of why i believe the plaintiffs thought were viable tossed out one remains the damages model however did not go back into just to say and now didn't just recognize the three kinds of conduct were legal and only looked to what damages were created by the illegal results of the antitrust behavior as i think i'm looking at more as those antitrust injuries decreasing market penetration increase in bargaining power as compared to changing the rebate structure increasing the price is making disparaging remarks about the product that runs behavior the alleged citizens for question as acts as compared to injuries and a media that's where  some of the increase in film according to their expert we disputed but potentially could have been the result of conduct that remains a possible source of mobile conduct in the case the  but you're you're trying to chip away at their theory but there is only one theory here and the expert report matches and addresses that theory in comcast there were four theories only one of which was found to be viable if if some of the conduct is lawful and some is on lawful you have to disaggregate the effects of what is lawful earlier we don't this we don't look at these things individually it's we look at the whole package it's not just oh we'll look at pricing how does pricing relate to the other conduct so by part you have yours saying that we do partition it if you will that's really not what we do for pages is that price manipulation has to be considered as part of the whole scheme and that's really the take away from that case when you're looking at the injury that's that's what it says in section five of that case if you go back to section fo that's where they determine whether whether the different strands of the conduct route were exclusionary or not exclusion as a page fifteen thousand two hundred and fifty nine is taken the two parts of the overarching scheme one by one is this exclusionary is that exclusionary and after finding that they're both exclusionary then you get to section five with the language that you're thinking of the bunch or no case from the rd circuit also that exactly this mode of analysis it it's said a page eight hundred and thirteen dollars liability jury properly found causation from only those acts which go to this the defendant's willful acquisition or maintenance in finding causation the jury must find the nexus between the act and the injury once a jury has probably found causation of an address injury from a law on the afflicted however the damages in this case may be determined without strict proof of what act was which injury as long as the before them joran or got there under the methodology of process that promise from last week before you get you get to lumping together exclusionary it have to look at what is exclusionary and what is not exclusionary and that analysis you do by conduct judging east each by the standards established by the case so the pricing aspects of this case either were not exclusionary you judge that the price cost us about the need to desegregate avaya when he had a jury verdict that was based on a on a theory that's viable and three that's not you have to throw out the damages part because you need to desegregate ohman motor company  seems like it's off of your topic a bit but i will defer if it's not i'm sorry oh i missed i it's seemed like mr berman was drifting off of off off topic of what you had asked and i just wanted to make sure that yeah yes yes yes and i particularly like the background of gendron del count so i will take the matter under advisement thank you very much and i wish much good luck to you and your family we all try to keep