please the court leslie brecker for the plaintiffs this is a class action involving dangerous and defective refrigerators that have twice been the subject of nationwide recalls because they have a tendency to corrode and burst  flames the district court's refusal to certify the class on ascertain ability grounds should be reversed for two independent reasons st the district court erred  be three contacts is superior to alternatives forms of action and to the extent that concerns of administrative feasibility would come into play it does seem to me that's where it would come into play it's not  administrative feasibility isn't an issue and it's not a twenty three dollars a prerequisite is is that is that your argument yes your honor that's exactly our argument and that's consistent with what the th circuit held  what the th circuit held in for saying no wealth of those courts recognize that in the rare case where there are difficulties manageability problems associated with identifying identification of class members and that would likely be the rare case those concerns can be and should be considered as part of the rule twenty three dollars superiority analysis which includes manageability and that's important because that requirement of course that you know it doesn't meet some kind of standard of perfection but the real question is was something like that you need to get to to to the next level and ask well compared to what exactly standard that requires absolute proof of administratively feasible identifiability of class members as a threshold requirement to get back with back to what judge pryor said in the beginning yes absolutely in the rare superiority which requires balancing rather than taking that as a factor separate from this think from the the analysis but it could be done in an appropriate way at the front end for example if the class is defined as all members of the peace movement we could all agree that that could be determined front under the rubric of superiority and manager delivery even though there's no separate label for m ability or something like that so that can be done up front in an appropriate case right i disagree with you slightly your honor in our view it is appropriate for a court to consider right up front and not as part of the superiority requirement but as part of the ascertain ability inquiry as to whether the class is defined in sufficiently clear and objective terms that is a threshold requirement yes your honor and so so to be clear our view of ascertain ability is that it is appropriate to consider as attainability as a threshold requirement for class certification separate and apart from the rule twenty three dollars b three balancing analysis but that that inquiry that threshold inquiry should only be about the class definition that's consistent with the way all the other circuits approached the issue and it's consistent with the way this this circuit as i understand it applied ascertain ability analysis prior to carr who now i agree with you wholeheartedly judge marcus that as to questions of whether so the nd part of what carr who considered ascertain ability is whether or not class members can be identified in an administratively feasible fashion and where carr who went wrong is with that nd part that nd part and i review should not be part of the threshold the requirements for our traditional ascertain i understand if i were sitting in the trial court i would ask you though whether i can easily identif who those members it's a different question than the st one but once the answer to that on this record what did you tell the trial about the ability to discern who's a member of this class even though the class is defined with precision and objectively yes your honor so so analysis of that issue needed to be conducted under rule twenty three dollars b three that's all and and so that's that's the general legal framework in which that that in great and what we what we told the court was and we back this up with documentary evidence which the district court failed to understand we pointed to that the court to the fact that dramatic has twice successively conducted nationwide recalls with regard to many of the models at issue in this case and during those recalls domestic was able to utilize its own records records of its original credit manufacturer's  warranty records and other records records of a man entity called r l polk that actually maintains a complete list of all serial of all vin numbers for all r v s and using all these different  tools domestic was not only able to notify all potential owners of these vehicles but it obtained this astonishingly high response rate of nearly fifty percent there were one from five million people out thank you thank you judge jordan i wanted to point out that so the district court erroneous lee believed that we merely asserted these things and we did not provide any sufficient documentary evidence to support it and i w five we cited to a number of exhibits one of which is the document eleven for which describes in detail the actual process that the medic used to identify and requirement i mean we've got this case now this this a pretty important issue that keeps keeps coming up isn't it the sort of thing that we are we need to go ahead and decide on  should we should we send this back because they didn't raise it and then all allow it to go forward on the supposition that this is a requirement only to add up and appeal later where we determine that it's not and then start over again me would litigation continues and we get a final judgment we get an appeal from that the issue could get a bit to be decided at that point and and we would be we would have to confront it and if we if we  manufacturer which has twice initiated recalls significant ones with a fair amount of return replies from its customers is claiming that ascertain ability for purposes of a class action can satisfy rule twenty three whether under twenty three a or twenty three b i mean you've you've got you've got domestics own sales records you've got venue numbers you've got domestics other manufacturers you've got the people who responded to the recalls you've got the notices issued pursuant to the recalls for a threshold rule twenty three analysis why isn't that enough to go forward why are you why should we require absolute and definite and certain proof of ascertain ability and if we should require that at what percentage level do we require it that we have to require seventy five percent of the clocks to be ascertained or fifty or sixty or eighty what's the number so i'll respond  so what you're saying is all the manufacturer could say is we sold ten thousand of these vehicles during this crime frame all of them have refrigerators we don't know which ones had the magic in which that's  let's assume that that's true then the next step would be to get the names of all of the purchasers of the or of these with refrigerators and inquire of them whether they're members of the  have more basically and ask this question which we talked about car who talks about administrate of feasibility i have read and  that the ability to identify the class is relevant but isn't it clear as judge crier put it to you that that analysis properly conducted under superiority determine its ass ascertain ability that's feasibility that's a pragmatic question that asks how hard would it be to determine who falls into this group but that is a distinct question it seems to me from ascertain ability and the problem that i have is the court in an unpopular opinion in khar percept rated or ministry the feasibility and i don't find that as a prefatory requirement anywhere it's implicitly woven in to ascertain ability which all seems to me to form under the heading of superiority and the district court is surely free to ask these questions under superiority but i don't understand how he can use administrative commonality typicality and actors it doesn't say and sly you have to show it minute straight feasibility so in order to get to that question it seems to me you've got to go through two other three the additional requirement of administrative feasibility rather than using the test which i've been very very carefully crafted and we crafted by the drafters of the rules and  you can only hurt yourself y i would note that i think it's important to to be clear that this court has held that where a class action is the only way for class members to obtain justice manageability will rarely if ever be itself sufficient to present prevent certification of a class of common issues predominate and as this as your honor held in williams vs mohawk measurability is ordinarily satisfied as so long as common issues predominate so i think it's important to clarify that although these issues should be considered as part of manageability that those general precepts governing manageability even if we had this court has discretion to hear it because it prevents presents a significant question of public concern as particularly evidence by the cases that we cited and i resent rule twenty eight j letter to the court which shows in vivid detail how carr who is being one in the morning