distinguish distinguishing injured from an injured members of a class and that this mechanism must be administratively feasible mr shipman on you i've read this new plea from you totally losing me on this next him argument it  overwhelm the common issue you can't have a cohesive class in a situation like the one we have here where the class consists includes consumers a large number of the consumers may have been injured by the challenge conduct but a large number of the consumers were not affected one way or another and another large portion of the consumers were actually better off as a result of any delay in the availability of the generic because their co payments  come into play under the rule as you read it that's the predominant requirement of twenty three p three so under the predominance requirement which was to look at whether the issues predominate right and issues class just and if the calming issues overwhelm the individual issues you have a proceeding that can never get to the other side of the river you're going to start swimming across the river and you're never going to get to the other side because you can't determine which class speaks plain to me how the injury point in particular is a threshold consideration under an issue that's what i'm not quite following ok i'm on the question of issues classes if it cannot be the law that establishing the existence of a single common issue and then saying we're going to limit the class to that issue satisfies predominance because if there were true then the predominant requirement would collapse into the commonality requirements of twenty three to any class with a common issue under twenty three  general principle based on the reading of the supreme court cases that you cannot have a class if the individual issues will overwhelm the common issues it just can't work next you just tells you you're right if what you case which you could not have a class action unless the class was seeking common relief that was in fact an end i trust case which the members of the class were farmers in a cooperative alleging that they had all that injured well it's clear that c four cannot separate basis for certifying a class because if you look at other provisions of rule twenty three like rule twenty three c three the notice provision it talks about the one classes the two classes of the three classes there's no other four or if you look at twenty three c three which is the judgment provision that talks about the form of a judgment required in a class certified under b one b two and p three there is no other kind of class besides that but if the question would just be whether first before we in the first opinion then in the second opinion the judge said that it could be maintained with regard to the issue of error trust violation if you can you know it had not been walked in that fashion so i think that's what the rule is guiding the act so now you're saying there is a new meaning of the word fraud which is brought to distinguish you can have one class action in which someone brings it not with reference to c for because they say every issue is common but you could also have complained that says she's one through five common but six is not recognizing that's correct and c four allows you to bring that action has us out that's correct i mean i think let me ask you a practical problem it's always puzzled your brief you describe the unlike the miss that class members would after the trial of this action or in their own actions hire experts do all the work take all the risk it's necessary in the don't know about the third party painters so where's this pressure you feel and what do you hear because i'm not sure that our my prediction is correct and if a class is certified it create it increases the pressure to settle the playoffs for reasons unrelated to the merits of the underlying cause of action if the only way you can get to the finish line is to have these additional legal expenses against offending any consumer claims or a third party  pressure if you knew that was are going to be the case to be no reason to certify a class and spend hundreds of thousands of dollars to gear up the class action machinery that would be a total waste of resources because it costs a lot of money to certify a class  anti trust violation as opposed to if you trust liability would you have the same argument if this was also brought as an issue for anti trust liability only thing that wasn't involved with damages if this were case where damages would be resolved in a relatively simple way for instance if there was a formula for damages and all you had to do was plaintiffs civic information common issues would predominate you don't have to go to injury and damages that was the situation in the spring for its comcast case so when that proof failed it wasn't just a failure of proof of damages it was a failure proof of injury when the supreme court said that under those circumstances you cannot have any old issue as an issue because it doesn't get you very far the kinds of cases where our interpretation of the world differs from the district court's interpretation of the rule at precisely the cases where the centerpiece of our appeal but they're kind of a judgment would be totally improper if you're not courts federal courts do not have the authority to issue judgments saying that the defendant violated the law federal courts of the authority to grant relief or to clear she was just saying which is that courts engineer courts don't have the general general for you just to say somebody violated the law but with respect to somebody who has standing they might have the ability to hear their rights right there's a difference between standing to bring a cause of action and and collect ninety dollars i'm told us attorneys and you've lost then one of the other class members turns around and says you know that could easily happen in normal non class but that's right theory how would you be any better off in that scenario and you are under this scenario well there are fourteen states that don't recognize offensive querulous stop also they could not and that's what this really turns on is it would will follow on that if i followed you correctly that's correct but you know we have not argued against class or if occasion because it's harmful to stop us we've argue against western education because the standards of the rule are not satisfied and the standards of the rule require predominance on the courts if you and i trust cases for many years are confronted precisely the situation we have here where there is you were going to say something about the other the various states and how they would treat that issue what i'm trying to figure out is that city c four possibly can be read as  the plaintiffs want it that you still have to show predominance of common issues which i assume has to mean that cause of action that grounds the suit in the various states is more commonality there's got to be a similar kind of cause of action grounding the whole suit do we know anything or zennie ready discuss the issue of whether under these various new laws you're allowed to just sue just to have a declaration that there's been an antitrust violation in that respect and the other issue it's not addressed in the district courts proceedings but the state statutes all have the same language as the plate that section four which says any person who has been injured in his business or property by reason of anything for bitten by this law may sue and recover three phone threefold the damages by whom sustained so you can only sue if you're injured federal courts your basic contention is there's no cause of action or just an interest violation that's correct but then you would have to resolve any bigger issues about what c four generally does or doesn't mean  intention put into the district judge is that people would say that their parties to this proceeding whether they're injured or not and if they choose they can bring a lawsuit in state court  to be an issue of state law that bans raising for every illinois with repeal or in fact i don't think there is an issue of state law such the question i've raised is that the federal courts don't later trust laws and then in addition because it would have to do so under rule twenty three c three the judgment would have to identify or describe the members of the class who are subject to this  so that's entering the judgment without determining whether people have been injured and that's not permitted petition what its intent was with respect to that petition fourth whether generic entry approval by the f d a was delayed by that petition and then finally if all that's the case what was the extent of the delay of generic entry all of those issues those issues involved common questions of fact that no one disputes are you are the same for every fifth and potential in of course certifying those issues then as she found will say will have all those issues dealt with it one fell swoop and it prevents the problem that you would have if she did not certify those issues which is the situation you would have where everybody has to go into court and prove all of those same issues as well us the issues that she did not certify what was the issue that she did not certify basically what is the economic consequence of the generic to lead to the point and that that and that is have if you will of the economic impact question from my point of view impact is the extent that  that's exactly the pressure on it and as a result what the motion was wrong for was to respect her view in that situation although obviously there's a difference of opinion on it but to respect that if you and how this case i almost all cases that talk about this situation which is it is quite common in class actions there are many issues that are common but impact and or damages are not thing through now if there's a circumstance however and i suggest that this is the case with the vast majority of class actions where they say we're going to certify for these issues but with but we'll leave individual issues you know later on down the road what that means is that the court is functionally doing a c four class because unless the court issues a judgment that says i am you know ruling on damages for you impact in general just for you for this class then what else is the judgment going to look like another word for the course says we'll deal with those individual issues later on down the road they literally are meeting their punting it rightly you can't do that even certification that as after both impact and damages then what the way i read both the majority and your dissenting opinion on it is you have to make darn sure that you're going to make sure that the money that that judgment this reflects against that defendant doesn't isn't increased in any way by the potential presence of uninsured members in a class number one and that number two don't hunt down the road about how you're going to figure so we instead go back and we say no we want the judgment is not going to find you want damages it's not going to find you want impact this judgments are going to bind you on an issue which is essentially going to be an issue preclusion for everybody one way or the other and then and then people rather than the situation they're in right now which is all these third party payers and these consumers in a situation where they have to go to state courts and prove everything right now they instead go into a state court or a federal court wherever they have proper jurisdiction they can  on the third party payers because the third party payors can the issues that the court had regarding impact were merrily are almost exclusively consumer oriented third party payers who are reimbursing for the largest of the third party payers and they've done this in other cases will come along on an aggregate basis a consumer case that's different on consumer case what i think is a practical matter is that the consumers come in again on a revised class certification but this time they'll probably say you know what here are the consumers who bought a generic and will take them with the put the brand so called brand loyalist issue off the table and that's probably one thing and now what are there other individuals that will come  forward if they have a judgment but they only have a claim for a box i think that still is impractical right so but that just goes back to our usual point of montra to be quite frank which is that we think that the p three strike that's why we're after trying to get the whole  not in this situation where this is a pretty valid if i understand you that the next year requirement cong flows from the fact that the last judgment was going to include him it is absolutely ok and i and then and then if that's the sole source of it it's just a matter of management discretion by the district court which is review for abuse that's why that require applies and i don't understand why under see for since you're not seeking the damages judgment that whole issue is beside th when i don't fully understand his you avoid that issue but you do so by creating a action where i'm not following what the action is the act you have and i want to know could you walk into a court and say here's what i'd like you to do tell me whether this guy violated the antitrust laws that's all i want i don't want relief i don't want damages i don't want to join so i only don't want you to find out whether i was i just would like to know did they violate the n t trust or can you do that under state law most state laws that i know of i can't i'm not going to sit right now we tell you that i've gone through all of the twenty three or twenty four of the upper pillar right but as far as i understand it if you're  requires injury then we're just right back to the same see the problem with your see for well let me put it this way this line of inquiry is essentially an argument anybody who ever brings any kind of claim if they have to show injury they're going to need to be able to prove that on a class wide basis what you're saying is c for it doesn't apply in any situation where an element of the cause of action is injury i'm trying to ask you the other way which is i don't know if that's true always but i'm trying to understand why it wouldn't whether acme violated the law in this case the judge is going to be designing the case so that argument that i've never been harmed never gets heard either positive or negative so all of the siding with the represented part because that's a month just to protect against damages there's no harm to defendants there's no damages judgment that's going to issue here right but i will say this just to be completely intellectually straightforward with us right the question in the function that it performs we've got a judgement you need to make sure that the defendant's not paying any more than it or he or she should have and also that uninsured people aren't getting some of those wells in a c four situation the question then is and the way that i would frame it is does the does the class definition perform the function reasonably of a fish and c and ferret us you know to the parties that's intended  order and so here when it's defined as people who paid for the drug during the time period of generic foreclosure that gives everybody objective certainty and definiteness it does not for instance this appeal could boil down to should we just add to the class definition who were injured who were overcharged right that's important that's sort of this appeal boils down to is everything the judge so go would have gone and then you also asked the judge to declare that that ruling would be collateral the binding non mutually honest tell us every other case then you can file it seems to me that would be exactly what you're trying to get even if you've seen people pretty much see you for i think you sort of indicated it in a question earlier today your honor c four is a practical matter is making a a fair playing field for both the defendant and the plaintiff in terms of issue preclusion it's also creating some some some clear procedural safeguards around it in terms of notice to class members notice to the defendant about what's going to be happening and doing it in a circumstance where the trial judge has decided this is going to advance this case so here here's here's my question that it is not me puzzled other people that are going to be coming in to at least the federal court are going to be able to say regardless of what the district court has indicated that it is implicit in every district court decision that is intitled to be followed and they go in the park yes i i i'm not familiar with authority that would allow us to well i don't think that's the situation we have here but frankly i think that in this kind of a situation the court is saying from the very beginning not at the end of the case i making it clear through the rules that this class action beautifully she had the putative past before her i'm not going to decide this whole case but it is within my power to decide some of this case and have that confronted that question not in exactly the procedural context you talked about but for instance during the course of proceedings before judge seris and what's called the average wholesale price case involves a lot of cancer drugs class represented if for some reason somebody falls out now i haven't had that issue at trial and i can't speak to that specific issue but i do know that at least those principles would probably be involved in that kind of a situation as well you spoken prove there did midges that it's likely going to invoke the body of law that i told you about which is that the court is permitted to have substitute class representatives commit that's that's i think the way that that would mean she would we would confront that is that the situation he's positing is true in any twenty twenty three class action of an ordinary kind yes in which there aren't final damages for every class which in which by the way is i mean it's just the scepter case after case and i think even two supreme court justices all this in a universal where you've got situations where not all the issues in a cigarettes but then there were follow on actions that were adjudicated by many courts in the same doctor they were all centralized somewhere in florida but i don't frankly know whether or not they're the same doctor just john doe versus you know act we work in the court was intending to have that judgment at some point how ubiquitous the fact that at some point that court was a district court federal district  would invoke the statutory powers and to play in that section sixteen which permits a court to enter declarations and injunctions regarding you know trust violations even for indirect purchasers for right i've got some experience in a lot of state antitrust law i'm asking from our perspective what was the do are we supposed to just assume that that remedies available under all the difference that it was is it not matter whether we have such an assumption musim the opposite i think you can i think you i think you're required by precedent and by the rules and by and by the but if you guys are eight comments to respect the fact that a federal court judge when he or she has available for issues that were actually at necessarily decided to render a judgment in favor of the only two plaintiffs were getting a judgment render a judgment against them the violation was not actually in houses early decide it was i'm still hopeful sense of that it would be effect of its own judgment which is right why rule twenty three c three the judgment provision doesn't say who judge one is binding on specifically because that's not within the court's authority the court simply identifies who the parties is whether it would be unfair to apply collateral estoppel for instance if there's newly discovered evidence suppose for example that one day after the jury verdict in this case the f d a were to adopt the very measures that a stylus sought and its citizen petition that's blue evidence which didn't exist and i think we'd be entitled to judgment as a matter of law and we have to trust my license because it's not objective we baseless if the f d a a few years later with your position so i don't think the court has t is all about bass why it says common issues must predominate over any issues affecting individual members because if those individual issues are too cumbersome you just can't go forward and see for it doesn't