you don't have good morning steven fishback privilege to be before the court on a represent  california has long been the tip of the spear when it comes to product safety scola barker green men why they were the foundation for a wide range of and suing consumer protection statutes whereby consumers can se redress for personal financial injury fraud mal conduct under some the most comprehensive statutes in the country particular this case california unfair competition law false advertising law and the seminal california legal remedies act sorry consumer legal remedies act was designed just to work very conduct at issue here unfortunately the laws are in place for the korea and others like her the incorrect application of those laws by the failure to prove any damages yes damages an element of your claim yes and so once he decided there was not he was going to he does do certify the class then he said you don't have any evidence of any damages therefore detriment as a matter of law for the defendant yes and we think that that's it's there's error in but multiple levels from that and starting backwards from how the court determined it with regard to the granting of the summary judgment there were there was evidence in the record that in fact was a caria testified that she either would not have purchased the relevant gerbera product at all had she known and or been told or advised or not been misled into believing that there were some allergy benefit to buying it and that in fact she would have not certainly not i think the district court judge recognized that yes i believe so and the there in lies part of the error in that well that just well just because somebody you know may be a false advertising violation still they've got to establish their damages and how and here when you brought it as a class action then you have to establish damages that can be awarded class wide yes are wise you get into problems of you know whether class action is an appropriate vehicle for this case we believe that that we satisfied the the requisite damages criteria not only for mr korea as an as an her damages for a moment because i'm concerned mainly about i thought your main concern was with the decertification yes it is and let me go directly there in the prop and the issue is this in the procedural history in this case is important in that for starters we've already qualified the class was already certified in the first instance and you know under the central district you got to bring your motion for classification a little bit ahead of time and we did that but we did that in conjunction with a daubert hearing with with professor holland and during that hearing there was a both sides had an opportunity to present their position and points on on  let's professor how it's can joint analysis and whether it was going to be adequate for what the purpose of what we thought it would be the court indicated over strenuous objection of the defense professor was qualified her study was appropriate and most importantly that it met the comcast standard that it was that was recently related to the damages sought by the plan right and so once we got to that point in it's important because the the join analysis that the court accepted from the press or hell it's the same can join analysis that it later said well there's something wrong with this analysis in other words after the data was run through the hard part isn't well done i understood him to say analysis but it's not just it's not just can join analysis it's the it's the manner in which that can joint analysis what was going to be formally well she had only she had to lay out how she how she would conducted a conjoint analysis study and explain it to the court and show the court that she could come up with with a measure that would be could be utilized class wide yes and erect yes and she also coupled that though with a hit donn measures only takes a look at the subjective view of the consumer that's what in a does it's not market base that's what could be the case and that's what some courts have found although i will say that the vast majority of the cases are cited and look when you read the court's opinion on this it tracks very specifically with the plaintiffs position all the way through it's like we get all of a sudden we're walking down the aisle we're fine you get to the altar and it's  runaway bride look what happened we went through all these cases this is in the plainest position it's a it's a failure to understand number one can join analysis and i'll tell you i'm here making argument for you because i didn't want to learn about conjoint analysis and had done a progression alice's and economical central statutes and or or statistics the court expressed in its if the hearing the it also was concerned about it was just a subjective determination and it wasn't tied to the market and when you look at market based realities and when you look at how cal how the california supreme court is the said you measure restitution for purposes of the unfair competition law you look at at the difference between what the consumer would have paid had you know had the consumer had the full and truthful information as opposed to what the consumer actually paid ye that gap i understand and that that gap is a gap if there's a problem with the can joint analysis but in this case we don't have that problem professor halle's me i think you do have the problem because i think the district court erred and failing to grant the motion to exclude testimony of the expert witness in this case and the court stated how it did not have value white empirical marketplace data to determine whether customers actually paid a premium based on the challenge language goes on to talk about how the conjoint analysis does not show the difference in the amount paid for goods  journal and its value in the marketplace the measure of damages and restitution cases price paid versus value received the problem here as a supreme court makes very clear in the dogbert opinion itself the analysis and the opinion have to fit the case and the trial court is saying here that it doesn't fit that's not the terms that they use and so the problem is actually back here with the dog motion which was denied it's an abuse of discretion standard on down that but it looks to me you are like there was an abuse of discretion and it looks to me like if you end where the trial court ended with this kind of rulin the problem is fundamentally one of of not having an expert who gives opinions that fit the case there's no cross appeal on the issue of whether or not the witness should have been excluded under daubert there's no appeal in that the only and so we're not we're not here to question whether or not professor halas has had the requisite skill qualifications or that her study was appropriate we know all that is except is already been accepted by the court this case gets very close to to the to this this court's decision in lambert where you have a certified class a can joint analysis being done and somebody says we're going to decertify this court said under the circumstances you don't need other than the room but it's still a can join analysis case and in the end can join analysis is nothing more than doing what dr what professor how it said and that is look i'm going to set up the can join analysis and she did that and it's not a surprise that the defendants object found doubt it was approximate forty two cents difference then you take the market information the data that we got from gerber that says this is how much we sold and this was the price and this is that and you do math you do math and that's that's all that needed to be done the fact that the court in the end said why don't i don't this doesn't seem to be right that's not that's not the standard it's just a math problem then and and professor now let me ask you this what was the value of the of the of the formula to the average consumer without the label it will be there's a there's a price premium of forty two cents so if the product were know what is the market based value of the product without if you looked at the out this label if you take gerber sales data and we have some of that and it's in the record and it it's some of but if you take that sales data and extrapolate doing the math how much product was sold divided by the total amount of amount of profit may then you decide how much how much was it sold for if it was sold for we have underneath is the underlying gerber marketing information which says look we want to get our product up to the similac numbers we can't just do that by saying we're an increase the price we have to do something to this to make it a perceived value to the consumer we have the marketing information we presented that to the court we said this is it let me ask you this is there any gerber information that that you're able to rely upon that shows that there was an added increase when they added this charge of price increase when they added this label the the answer is yes because they wouldn't have been able to recommend the price increase to the to the stores without having a corresponding ability to say this is why we want to raise the price so there are third in the marketplace they wanted to make more money and gain more market share and they couldn't do it with their lower priced what they could do to buy prices they could lower prices but to get people to buy the product you had to give them a reason to give a reason to pay more money the regular group or formula without the stick or the didn't say this is going to prevent allergies so price lower than some like sold at a price lower than similac and sold at a price lower than the gerber good start with the foil wrapper and that's the whole point of this is that the consumer then run line on then there was not in the us it is are you saying that there was not an added market based increase in price when they added the label there was and market increased in price when they added the label it was ok and we is the is there any information in the record that demonstrates what that added price was no because what we're left with and seventy sixty cents and eighty five cents and ninety and then a dollar ten numbers she she covered the range of pricing spectrums for baby food because it explained to me how she used these various price points to come up with an opinion that the average consumer would be willing to spend forty two cents for this additive i wish i could explain that to you but i it's as i said i know i read her her her declaration and her retort and she talks about these price points but it's just not clear to me how they fit into this i understand and that's part and parcel of what we're asking for the reason why we're asking for the court to step in to this that's exactly the point i think we are not with respect for we are the plaintiff's lawyer but i'm not i am not what i'm good at is asking questions i am not the guy who can come in and explain to anybody look mean i'm talking about i think that that it means exactly what it says in that the law that we have i mean that's when we did put plot ski we relied on kwikset so what what do you have to prove you know if you were before the california supreme court would you have to demonstrate kwikset as the court recognizes it was a interpretation of prop sixty four and that's what the court was trying to step this is what prop sixty four now require and what we've demonstrated in this case is in fact there was a price paid let's assume the assume professor hall's right it was a is a price premium of forty two cents and that money didn't just go into the atmosphere it went to one place it went to the company that was that raised the prices in the first place it went to gerber so when you say there has to be something lost and then something gained we have in this case the loss and again that the california supreme court discussed under kwikset but it was really that case wasn't designed to talk about that it was really making sure that everyone is doing that after prop sixty four things had to be determined in a slightly different manner because there's other cases that talk about restitution and what restitution means and when you look at those cases you're left with the same when you when you look at the last google which is off cited by the court and both parties we look at bank of the west rest of search restitution serving dual purposes restitution under polaski is the measure of is the difference between wasn't what a reasonable consumer paid and what they would have paid at the time of purchase with with with the fraudulent ordered information i mean it can be multiple things i don't think that there's been anything in this case to demonstrate that the plaintiffs cannot provide this information the court and so what i think is appropriate would be firstly the case should be overturned i don't think i think the court erred i think it was an error because it didn't understand number one the nature of the long including including how kwikset limited its ability and but more importantly how the the line of cases including lambert impacted but more easily and maybe even more efficiently is get this back down to the district court where we can have a serious discussion about what's the problem is or how can joint analysis either does or doesn't work not just with you know this is that a motion to vacate cert i mean up the this wasn't the first report that professor how it submitted to the district court the first report was in connection with her moving for class certification and it was an invitation to the district court to say listen to what i tell you i can do listen to the proposal that i have in this report it had no substance to it at all it was plain vanilla notably in that very first report professor hallett said your declaration in her declaration professor hall it said that i can take the price premium paid which which which paragraph are you looking your honor at seven forty three yes or graf twenty six she says a look to the price premium paid which has been the only measure of damages ever sought by plaintiff in this case by consumers for his specific product attribute such as quote reduces an infant's risk of developing allergies close quote and it can be determined by integrating the results of analysis into economy metric models developed from readily available marketplace data sets such as those from symphony survey participants willing to pay for the product that she puts up on the screen but then she said i will measure that against a different form of a con a metric donek regression analysis which takes real world market data not just of the product at issue but of comparable product she said she would actually do the hit donek or regression analysis she said or but in the paragraph that i just read your honor what she said was she would integrate the results of the at her deposition despite telling judge kranz that that it could be one or the other she said she's never done one never in her career and couldn't for this case and when that analysis proved or  offer him proof of what the court thought was necessary in this case i think it was indeed it was a potential check against the runaway can join and now says you can you can create a can join alice's that gets you to any result that you want there has to be a check on it there has to be a real world check where the data is tethered to market realities and that's exactly where infant formulas are bought and sold every day i don't believe that she could show anything different because there is a unrebutted fact in this case that containers with the tamper evident seal that she complains of were available in the same stores on the same shelf with a completely different tamper evidence eel but they of a person who went to a store when the complained about camper evidence seal was on a shelf next to a container same exact size container being sold for the same price in the same store by gerber by gerber your honor which puts the lie to this enjoy analysis it shows it for what it is that's why there are times when it can join in alice's may tell you some aspects of behavioral thought processes of consumers but as in survey dro enjoy and in the apple case if you don't tether the results of the can join analysis to real world market data you can say anything you want and that's exactly the problem here it's different than putting the answer to your little friends point the you are appealing the ruling on the issue you're not saying that the the declaration dr hollow should be stricken we did not appeal your honor because there was no need to because in the district court's analysis it stood for exactly the proposition that it was i can get consumers to give me in any number i want and based on that judge kronstadt determined that is not an accurate measure of damages and it could never be and it's correct we did not appeal that ruling i don't agree with judge kronstadt decision on class sir when he said it could go forward but i lived this case and so i saw the final report that's at issue in this case i saw it coming and i saw come in in july of two thousand and sixteen and there was no mention of any historical market leader at that point there wasn't much left to do really i mean that the plaintiffs solution is well i could take this can join al sis and i can get a calculator based on sales numbers and i can just add them all up but that doesn't do anything that does not show us what comparable infant formulas on the market two of which in her original complaint she said she was buying which show no price difference at all how do we know that because that's in the record your i mean is it is it her declaration or is oh it's an urge there was their debt with their survey study or what the what the market price was of similar baby formulas but it shows our contemplated price increases based on competitive market realities compared but in contemplating contemplated but never implemented you're on the gerber head assess what the market was doing all of these infant formula manufacturers look at the market to determine where they each stand simulacra and they all had the same price that's right your honor and not only that but in the goes your basic argument is label violation no harm no foul the label never mattered it never mattered to price and that's that is if we're to talk about comcast the theory of liability in this case was the labels false and i've been damaged she never prove damages and she would listen pointed i'm sorry i'm disappointed i'm not sure she was disappointed because the record evidence in this case shows that heard her doctor recommended a formula the record evidence shows that that doctor recommended a formula that wasn't gerber good start gentle it was a different formula and the only objective evidence in this case about her actual purchase is related to the the gerber good start formula that the doctor recommended and besides the fact that gerber good start gentle was found on a shelf with two different labels at the same time but still for different price there's an entire line of good store products and all of the the pricing was the same for those products were garlics of whether it was gentle and none of the other products even had the label at this point of complains about and we have just the perfect comcast problem and that's that's what judge kronstadt struggled with he was told that he was going to be provid with a measure of damages that dr howlett never delivered on she told him i can get the information it's readily available and it is anybody can buy it but she never did it nobody ever did it there's no expert in this case for  that thought plaintiff's counsel is going to be there's a constant market analysis of all competitors but but not in this is there was there any analysis on gerber's part that with this new label we could up the price zero no record evidence that any pricing considerations had anything to do with the label that's being complained about and its hon added to a declaration submitted by gerber that gerber never priced based on advertising or marketing messages that was the last thing it considered when existed or pricing of the label was more it was intended more to to help gerber develop a better market share but that label was designed to do was to make a claim it was founded on science and none of the science was ever decided in this case but the science is the and it's substantial and that label was a was a means to communicate a potential benefit to purchasers who are going to that's that's what advertising is for and that's what what companies that are in the business of selling products tried to do make more money is a little different than what happened in pelasgian your honor probably remembers and in that case that there was only one market was created by google  in the manner in which to determine damages employ ascii it was built right into google's own algorithm for this bidding process it was a no brainer no offense your honor i understand the decision but it was there was there was really no argument to be made that's that's not the market we're talking about here where there are multiple types of formulas that people buy for a bunch of different reasons but only one attribute was tested in this infirm can join i at that gets me back to the district court when it was finally delivered to the district court it was sort of left like oh we're in the door now you just get us to a jury but that did nothing at that improve restitution that  actual damages this place that never saw injunction so she couldn't ask for an injunction injunctive release really based on this this analysis was only really about the price premium and there was a desperate attempt to get to a price premium but the final price premium it's absurdly high number was never checked against the market where infant formula is or sold in that was the problem that the judge kronstadt was presented with what do i do with that he determined that it's not an adequate measure of the damages she's always sought in this case a return of the added price i'm sorry on a return of the added price that she allegedly paid yes your honor your honor i have time left are there any other questions a an attribute for a product and to isolate that out against other variable attributes and try to determine by doing it reg elsa's moving backward in time to term and whether that attribute had anything to do with the prices going up or down and he done you like it or that it's a track individuals prefer what everybody what everybody searches for a better life and if donek regression analysis does anything i suppose it's meant to show us what we're all looking for whatever that product might be the pursuit of happiness we're all these are tools the that marketing people use all the time they do but for different reasons yes honor and it doesn't make it perfectly fit into litigation can join also has been around for a long time but not that long  litigation and and so have all sorts of econometric analyses been around for a long time but not necessarily for the purposes that that are being used today and it just doesn't make them right just because somebody can analysis it has to be done to the rigors of the science and i agree that with judge roll that that the court misapply the daubert standard when it looked at this can join and elsa's and i think that when judge kronstadt considered what he would do with it on summary judgment in other words in absence of a disputed material fact that's when he called its reliability  o question because that's when the rubber hits the road when a jury instruction goes out in a relate specifically to this infirm can join analysis in it was nothing to do with it didn't get the job but i gather if there had been evidence that gerber had increased the price after they added this label that would have been much easier for the plead there would have been a banner year on or they would have walked into core on the motion to decertify the class and the motion for summary judgment with the banner but instead what we got were tortured interpretations of company documents that said nothing at the proposition the three minutes everybody we don't have the memo from gerber that says we're going to raise the prices and we're going to do it falsely so we can increase our market share by putting a mislabel on the product but that's what the cases and that's where complaint alleges and that's what the facts as we we've indicated it in are replete with the record indicate you think your vision is correct as to what they could have done but not with they did know what they did what they what in fact they did and the reason why what we know about this is that again gerber had a product and it wanted to big it wanted to sell more of that product it couldn't sell more of that product at an increased price and make the product it couldn't be more valuable to people that kept the same price kno increased the price and said we're going to match similac told its marketing people we want to match similac raise the price and sell the product with this foil on it the reason why and we can do this though is by misleading the consumer misrepresenting the facts about allergies you can get d n a you are not able to to obtain data or information from gerber that shows that they in fact raise the price right that's part of the that's but that you just said that they raised the price but you can't document that they indicated that they had to raise the price to match the price to match the similac which was the top of the line and the other was the other part of the problem that the core had not having the real world number that one of the fundamental problems yes but i think part of the problem is that for purposes of the can joint analysis that information isn't required dr house i kept saying professor it may not be front door but that it work it's declaration she lays out specifically how once you have the underlying to join analysis accomplished then it's easy she says it's simple to calculate damages in this case and it can be done again this has to do with whether or not they can join analysis was done properly and the court district court said twice i'm not the professor dr howard is ok your letter testified her methods find past the daubert standard and more importantly twice said under comcast this methodology was properly incorrectly tethered to the plaintiff's claims you don't get to go back in and say i don't like what she did or i don't appreciate it or i think it should have done differently the defendant didn't present any contrary evidence let me ask you just said a moment ago that they raise the price they raise the price to match similac yes ok they raise the price where is that documented in the during certain time periods and it's part of the part of the the data and information that dr hallett had when she when she she made created the can join analysis we've already had a discussion on the  now twice the only final things i want to say is that the alternative to the district courts position is i think an easier one and that is number one the case law is clear in california that issues of damages can don't result in a class being decertified so we have that body of law under so under spam and we'll leave the job and use and then finally the issue of it being that even if you did i'm sorry that's under lambert even if you were going to take the case and split it you can do so by having a later issue on damages splitting liability damages otherwise thank you can this morning or thank you we appreciate that is that the material under seal the only discussion of potential raising of prices was never implemented and that's in the record ok or i know where the record i can find it thank you thank you the matter is submitted and we appreciate your arguments realize you had to travel up from down south of thank you very much