may please the court my name is philip documentary on behalf of both of the appellant plaintiff arnold chapman and the intervenor all american thing the appeal presents four issues the first is this issue about the class definition the district change to me the district judge concluded that there had been no request to certify a class of recipients who did consent until four years into the litigation and that that was too late wasn't that this was forfeited by omitting it from the complaint district judge said it was forfeited by not making such an argument for four years well you may disagree with that but let's at least get correctly what the  ok i mean the defendant we did argue this lack of an opt out notice but we argued was we thought that the judge would not believe their claims of permission because they didn't actually have any evidence that any person who can be identified gave them permission to send junk faxes what they had was arguments about implied permission and then they had employees who say well i got permission from people but i don't know who they are is am i incorrect or was the district court in correct in saying that there was no request to certify a class based on the defective opt out notice until this litigation was four years old that's that's true ok and the defendant has has filed a petition with the f c c asking for a waiver of something we argued for a stay of the peel at the beginning of the appeal and in there they argue that they were sued for lack of an opt out notice on their faxes and that's why they want to waiver so you know i think we're in the district court brought up the timing issue she brought it up as i'm not going to let you amend the complaint to allege a class of people who receive faxes that didn't have an opt out notice yes well stop talking about  complaint one does not get classes certified by amending complaints writes the definition of a class was proposed in a motion to certify a class not in a complaint and that's what didn't happen for four years ok and say that but the court has this court has never was you know nothing for four years so your need if you want us to reverse this to show that the district court abused its discretion in thinking that fo years was too long now why is that an abuse of discretion well she only said it was too long to file an amended complaint we never we wanted to file an amended complaint and then file a motion for ok is it an abuse of discretion to think that four years is too long to change the focus of the litigation to the optos if it is an abuse of discretion because the focus of the litigation was on the lack of an opt out notice throughout the entire class certification briefing but the proposed definition wasn't based on that but our opening brief had sections and title they failed to include or not the notice and our reply brief had ten pages about lack of an opt out notice and this is all before any appellate court had said you could have a claim based only on the lack of notice i don't think we would argue that a reasonable person could not say that the complaint has to be amended to have a particular class definition and of that it's too late for the plaintiff to do so when the plaintiff had when there was some confusion in the law the defendants arguing there is confusion in the law on their f c c petition with the plaintiff argued the lack of an opt out notice throughout class certification and there's no prejudice to the defendant we don't need there's no need for discovery it's only a legal issue because the judge never considered the lack of an opt out notice somebody else could file a new case argue tolling based on the fact that the defendant itself admits that this case is about lack of an opt out notice and because the judge never ruled on a class certified class or vacation based on that issue i guess it could be decided again but we were trying to argue it in this case and i recognize that that would require additional effort by the district court and maybe some additional briefing it wouldn't be much more because we had already put our position on the issue out there and the defendant chose to the third issue is this idea of the chapmans claim was picked off through an individual solomon offer as a settlement offer that was made do you think we should do in light of campbell  probably not the side this issue until they decided but i don't you know i don't know it's an impossible not to decide this issue and still to decide the class certification issue we don't want that to act in a we're briefing class or occasion then somehow it springs to life and should we have accepted it before when does he have to accept that and then of course it's an offer that says it's withdrawn so the guy gets you know as courts previously said that's not necessarily of a deciding factor but basically the plaintiff gets no money he gets no injunction they're trying to make him pay one hundred sixty thousand dollars in costs all because there's no case or controversy because they made him an offer to in an email to two of the lawyers one of the law firms of that wasn't accepted you know promptly enough for something and the fourth issue is that the court should have allowed all american intervene if chapman didn't have standing to pursue the claim of chapman was too late all american painting should have been allowed to file an amended complaint seek certification of a class that had never been decided and maybe the judge would have denied sort of creation in that class too and i would have been an abuse of discretion that would have been a high hurdle to meet in this court but not even letting the pla that and attributing it to a delay in either amending the complaint or making the class definition explicit enough was the error and you know this court has not said in an opinion that i found or i haven't found any appellate court that the said the class definition doesn't have to match the one in the complaint and i think it would be useful if judges knew that because some judges in this court this district will make right their own class definition other judges will say i don't like that one do it again and i and i had a case where we got the judge to chorus branford our fifth motion class sort of occasion because we finally satisfied his requirement for the definition and then in this case the judge said i don't like that definition you can't make any other definition it's too late the case is over so unless there's a question has anyone ever raised the constitutional issue of the telephone consumer protection act when it's applied to a situation in which one business is sending you know advertising faxes to another business isn't that  that be protected protected speech protected commercial speech supreme court has recognized a right to freedom of commercial speech within limits and rgued it has to see individual recipient you know natural persons receiving them too and i think the the the difference is that it wastes their money it takes people's money so it's not sending junk mail or delivering junk mail or calling them on the telephone it's sending them a fax that's using their machine and they're like the act applies to telephone solicitations as well of course not not for businesses not as far as i'm aware like there's the do not call list doesn't apply to businesses and people can call businesses to make telemarketing calls but they can't call residences that are on a do not call list the can't call residences with a machine but i think they can do those things to business they morning your arms may please the court i want to start clay addressing an issue that i think causes some confusion i'm sorry could you raise your voice wait yes your honor i apologize that the first issue that i want to raise or something that i believe causes some confusion plaintiffs argues that it raised the opt out argument in its motion for class certification and indeed it did make arguments about opt out notice being defective the problem was it limited that argument and made the argument with respect to persons that had an existing business relationship with the defended that argument was proper with respect to that because when it moved for class certification the plaintiff amended the class definition the very to include for the first time persons that it had and distinct business relationship with the defendant what plaintiff didn't argue in its motion for class sort of attention is anything about claims for persons who consented to receive faxes from the defendant the second w as plaintiffs are correct that this case was about consent from the pretty much the get go but it wasn't about the merits of persons claims who consented it was about whether or not there were person to consented so those are two different issues for the four and a half years that this case was pending the case was not about what claims do persons who consented have it was whether or not those persons existed and plaintiff claims if we didn't present any specific evidence of consent the district court found that we did instead no two it's brief the plaintiff indicates that it's not challenging that decision by the district court with respect to whether or not it was an abuse of discretion to find that plaintiff amendment wasn't timely it was more than that planned didn't raise the definition the class boys expressly excluded persons who consented to receive defendants fact now when plaintiff filed his reply brief and raise for the first time arguments about the claims that persons who consented have we filed a motion to strike the the plaintiff's reply those arguments arguing that those arguments were both in material irrelevant in this case because the class didn't include those people we had a hearing on the motion to strike and plaintiff disavowed seeking certification of a class that included persons who consented it said we're just trying to argue it was mr bach we're just trying to argue certification of the class that we've already proposed this kind of takes us to task for never addressing arguments about the opt out language but when they represent to us at a hearing and to the district court that they're just trying to argue a class that doesn't include those persons but of course makes no sense for us to raise arguments about claims of people who were never part of the class think we need to spend some provide really that can order the payment you say jasmine's maximum recovery is three thousand dollars and two cents fun the court can order that right what you say is the court shouldn't award that your own i think once we make the offer if plaintiff spurns that offer his claims because it that he didn't know that's an argument that it wouldn't be sensible for the court to intervene to order relief to somebody who could have had it right and that would be clearer if the offer were open today a court won't order the defendant to do something it's willing to do but i don't see what that has to do with  just a misnomer you know all of our cases about this this was the subject of the debate on the supreme court in genesis health care and well obviously it is obviously come back in campbell but i'm trying to figure out whether this was now or ever has been about moving us we are honored i believe that once the plaintiff has the opportunity to get all the relief that it could receiv promote this which is that it is impossible for a court to provide relief i don't understand how it is impossible for a court to order your client to pay three thousand dollars and two cents to chapman it's perfectly possible i don't understand how even in principle a claim for damages could ever be moot it could be unwarranted there could be a perfect defense there could be lots of instead in the language of rule twelve give your client the affirmative defense of a court and satisfaction we want to courts have previously said that it makes it moot i don't courts have said that i'm asking whether that is i think it can be more than just if it's impossible that is what the supreme court says moving this means we're not going to disagree with the supreme court we're not going to have a seven circuit specific standard  as far as i know the seven for good six standard is from a number of cases from this court wire to just arguing that this is a defense and then we can ask whether an offer without it being the other arguments that i was going to make was just talking about the request to admin that was four and a half years after the case began plaintiff was fully aware of the facts what was in the chapman three thousand dollars and two cents today i assume that my client would be willing to pay chapman three thousand dollars in two since today the whole problem here comes about because this offer exploded by it's own t right you might have a real defense as i said a court order the defendant to do something it's willing to do voluntarily next case for argument reserve