your more yes or good morning you may receive the morning thank you may it please the court the district court erred in finding that it had jurisdiction under the class action fairness act because the necessary amount of controversy does not exist in this case that amount in controversy is comprised of two elements here compensatory damages and attorneys fees and cumulatively these amounts do not exceed the five million dollars threshold necessary for the exercise of federal jurisdiction on this issue there should be no dispute that it is a preponderance of the evidence standard that applies in the supreme court made clear and dart cherokee and also that it's f c s burden to prove that a sufficient amount of controversy exists i'd like to begin by discussing compensatory damages there's evidence in this case of lost fair market value of the jeep vehicles and as the district court pointed out that evidence suggests that if the price of these vehicles that were allegedly missed representatives zero the amount of damages would be over fifty million dollars and that ca points out repeatedly that that evidence is on contradicted but i would point out that there's also uncontradicted evidence in this case of the cost of what it would take to repair those jeep vehicles to bring them into c s representations of safety and non defectiveness that evidence is also uncontested and it most of that evidence is three point six million dollars which falls well short of the five million dollar threshold necessary for federal jurisdiction as the record stands then as you take that evidence and you fill through through missouri law compensatory damages in this case are no more than three point six million dollars and it's a function of missouri law to determine how the amount in controversy should be valued and what evidence you should look at and in the brown vs bennett case and the farming case which are cited and discussed in our briefs missouri makes it very clear that when you have a misrepresentation and you have a benefit of the bargain model that applies and you have the ability to repair whatever was the subject of that transaction to bring it into conformance with the representations and that cost of repair is lower than what the diminution in value of the property is then you have to apply the cost of repair as the measure of damages because if you don't if you award the higher amount for diminution in value you give the plaintiffs in that scenario a windfall and obviously missouri like virtually every other state in the nation says a plaintiff can't recover a windfall well is an element of the diminution of value the reduced value resulting from the disparagement of the products such that its reputation has been damaged on resale under missouri law or has that been rejected well it certainly would be a possible measure of damages in certain circumstances the hope case which talks about a stigma flied of these vehicles and i'll be quite frank our petition alleges a stigma as well but what it also alleges is that alleges diminished value stigma and cost of repair all as potential alternative measures of damage just to make sure that we covered the benefit of the bargain entirely but what the case law is that when you have a cost of repair that can bring a product in the conformance with the representations then it would  ceiling on damages that could be recovered so if there was a stigma damage and the stigma damage or the diminution in value happened to be less than the cost of repair then arguably would apply in this case but that still doesn't answer the jurisdictional question because the cap on damages this the three point six that is the cost of repair the diminution so what you're arguing is that essentially that even if stigma damages were recovered it couldn't be recovered in excess of three point six million because missouri law is less this court made clear in its decision in clayton that under the benefit of the bargain rule that diminution in value and repair costs damages are not cumulative measures of damages that they are alternative measures of damages and farming and the brown case from the missouri courts say that you apply the lesser of those farming is also important because farming says that repair costs in this circumstance where you're talking about bringing a product into conformance with the representation cannot be characterized as consequential or incidental damages which answers f c s argument that we could be able to recover a diminution in value and cost of repair if cost of repair is not a consequential incidental damage it cannot be recovered in addition to diminution or about a diminution in value it is an alternative measure and as i just discussed there is a clear indication in the petition that repair damages are in play they are alleged in the damages paragraph of the petition saying that consumers are put in the position of having to pay for repair costs of these vehicles there was evidence that was included in the remained record about what that cost of repair would be and  three point six million dollars and it is uncontroverted we've cited case law from missouri courts indicating that repair costs are applied in auto defect cases and i would also submit to you that the evidence that exists in this case from the plaintiff's about repair costs distinguishes this case from other situations where this court has held that remained was not appropriate in the rascasse case for example the plaintiff never provided any information about the amount of medication that had been thrown the way by consumers that allegedly supported the measure of damages in the hardest case this court noted that there was no evidence from plaintiff about the size of a nationwide class and in the recent case that this court decided in damage and the court said that remained was not appropriate because there was no evidence of the amount that the plaintiff class would have paid in insurance premiums and here we have that contradictory evidence we have that evidence of repair costs that sets a different measure of damages this case that means no more than three point six million dollars in compensatory damages now that brings us to the issue of attorney's fees and there are two points here one being that there is no evidence in the record to close the gap between three point six million dollars and the five million needed to find federal jurisdiction because there is no evidence at all submitted by f c a to suggest what an attorney's to be award would be let alone that a few award would reach one point four million dollars or more necessary to reach the jurisdictional threshold there's a there's a citation to the barry versus volkswagen case where six million dollars was awarded i won't go through the math again but we've broken down in our brief why that's not an apples to apples comparison with this case and in fact when you compare those two on their facts and on their complexity it's obvious that this case is a lot less complex and a lot less factually intense and at the amount of a fear ward at the end of the day would be significantly less than barry  we believe under the preponderance standard that it is f c s burden to show that those two cases are similar enough that a one point four million dollar ward of attorneys fees are greater could be awarded in this case and they haven't done that but i think the easier answer for this court is if there is a stipulation the record from council that says that we will not accept in a field ward of any greater an amount that would put this case over five million dollars in controversy in this case this decision in roll ing it cited missouri law it cited a missouri stipulation and state court made by counsel to the effect of we will not accept a feel ward to exceed the amount of controversy and it held that that stipulation was a matter of judicial stoppel under missouri law the later decision of the supreme court in standard fire held on a different issue that stipulations of class representatives were not enforceable because the persons that they were trying to bind putative class members were not in the case that problem does not exist with respect to a stipulation of counsel or firm as in the case where the only counsel of record we've made the stipulation and as far as missouri law goes and as far as this court decided unrolling that stipulation is effective now if that situation were ever to change if different counsel were appointed or if we terminated or withdrew from the case that would create a different situation where removal jurisdiction could be assessed at that time just like if punitive damages are not originally pleaded in the petition but later make their way into the case you can remove later at that time if the amount of controversy is sufficient you know there's a lot of debate in the papers about whether or not rowling will go to law and i think the answer is clear that it is the supreme court of standard fire expressly did not reach the issue of attorney's fees to fuel ation and left that portion of the rolling decision  that as a matter of missouri procedural off punitive damages are not pleaded they do not count in the amount of controversy and so with those two measures compensatory damages of no more than three point six million dollars and attorneys fees that do not exceed one point four and even if they did would be capped by stipulation and there is not a sufficient amount of controversy for federal jurisdiction to exist i'd like to briefly touch on the court's summary judgment order which we also believe is erroneous and if the court finds jurisdiction we would ask that that's summary judgment ruling be reversed the district court required that the plaintiff be exposed to the representations made in the press releases are that are at issue in this case and the district court required that the representations in those press releases be quote passed down the transaction chain from f c a to the car dealer to the plaintiff when he bought his vehicle and the district court required that those representations color the transaction meaning influence the transaction the plaintiff made for his vehicle and all of those requirements are inconsistent with missouri law which says that the missouri merchandising practices act is intended to liberalize what would otherwise be what otherwise be a stricter fraud standard doesn't require privity of contract doesn't require reliance and doesn't require transaction causation so the givens case that we cite in our brace is a good example of how indirect misconduct indirect representations or indirect concealment by a party upstream can still support liability which is exactly what we have in this case we have we have a public safety issue  recall at ca came out and we allege misrepresented the vehicles that were subject to that recall a safe and non defective and they spread that message to the entire general public propping up the market for these vehicles our client bought a vehicle after that he's now in a position where he's required to add a steel fuel tank shield to bring that vehicle into conformance with the representation meaning a safe non defective vehicle that won't blow up in a fireball when it is  you know when it's struck in a rear impact collision and all of that fits neatly within the parameters of the human p a and allows our client and the class of consumers who have bought these vehicles to recover under the merchandising practices act was that it was a design defect the gas tank being behind the rear axle was a lethal consequence of the design of these vehicles he said it was defective because it was plastic says i later found out that just by the way that it's designed because it has a vital component put in a certain place that could cause me to to to die i would never have bought that had i known this this was what he put i never would have bought that vehicle if i had known of that and therefore i'm entitled to the difference in value what we let a defendant say well here let me put a bandaid on that maybe you want to do differently designed vehicle and maybe you never would have purchased this but we can put a band aid on that make it all better in your damages can only be measured by the cost of the bandaid that you might not even apply to the vehicle because you haven't gotten it yet that's what he's asking this court to find and that's what this court will find if it agrees with the plaintiff there is he's our he's arguing essentially that the cost to repair is a measure of damages that if it is less than the other measure of damages as a matter of law it cannot be recovered is he wrong there he's wrong on the law all right totally wrong on the law the wrong is first and i go back to the facts if i could your honor for at first because he never played this cost of at the time of removal he did not ask for repair costs he never asked for the lesser of he pled he had exactly three paragraphs that mentioned what damages he won it the first one was paragraph four said deprived of the benefit of the bargain bargain in purchasing the second one was paragraph thirty two he was to five different deprived of the benefit of the bargain by purchasing due to being told that was thankfully not defective and it was in reality worth less than a vehicle that was safe and that were worth more if they had not been misrepresented the only reference in the entire petition at the time of remove all was in paragraph thirty two after he pleaded about how he had been deprived of benefit of the bargain by paying too much he said and i quote the ineffectiveness of defendants trailer hitch repair also places consumer in a position of bearing the cost for alternative repairs the pleading was you would have to repair my vehicle didn't work and now i'm going to have to repair that repair not that ski versus blue springs one thirty six third by sixty five at age five seventy and i quote this was a somewhat similar case it was a misrepresented vehicle said it was in excellent condition what it really had been sold for scrap and rebuilt the plant paid fifty five hundred dollars the verdict was the affirmed verdict was for seven thousand eight hundred thirty five dollars more than the man pay and here's how this court reason that at a minimum mr dubinsky was entitled to the difference between the actual value of the property and what its value would have been if it had ben is represented here plaintiff expert testified that the jimmy was worth twenty five hundred to three thousand dollars what would have been worth eight thousand dollars as represented mr he was also entitled to recover other expenses of which there was evidence including interest charges repair co cases the courts of the state are committed to the benefit of the bargain roll as a method of arriving at damages apply to a train's action involving the sale of an automobile it allows the fraud party to be awarded to the difference between the actual value of the in june of twenty thirteen chrysler had a dispute with a government agency about whether these vehicles had a defect and should be recalled there was a lot of publicity about it chrysler made some statements and took a stand that oppose liability in ms under missouri law because a lawyer shows you something that they think is wrong and suddenly you can say well that affected my sale months ago you know there's body of law that talks about reliance and there's body of  talks about connection with and if you look at judge k s zero zero pinioned and how it lays out it's kind of see quench really as to what wasn't passed on and what was and what was you know it kind of has a sound that it might be reliant you know also might be an explanation why it was not in connection with the sale i would like you to tell me why judge case has an app piece of it right well  looked at it i and my mindset was that's important to me i'm going to make my decision based upon that in connection with the say oh you may not have relied upon it at all you may not have made that decision but that was part of the seo that was part of the agreement of the parties part of the you know the basis for the bargain basically it was the basis for the bargain turns out not to to be fulfilled in the long cases that are really the only cases that have dealt with after the fact misrepresentations when when you know when when that happens not to be fulfilled because there are later representations that it relates back to the original transaction and what happened here we have a transaction that was complete at the time of sale it mean it did it there were no ongoing obligations there was nothing that would allow me to say well i am not going to do that now which would be in connection placeholder extended warranty and i said if you buy this extended warranty i'll fix your tires for a wife and then when time came i said no not really well now that's in connection with my book and in connection with my vehicle i didn't i honestly have a very hard time figuring out in my mind how something can be in connection with a transaction when you never saw it it had nothing to do with the bargain you struck at you know when you did your transaction so i have a difficult time explain trying to explain why one why the you know in connection with situation applies any better than that well in connection as opposed to reliance might be a situation in which they hand you fourteen pages of boiler boy boy boilerplate which you know you've never read and you could not have relied upon it because you didn't read it but it was there then that maybe something in connection with the sale right totally agree and so we think that that that's clearly something that's covered the question really is the point is the courts have talked about that as well you don't even know about it might arise later in soul why is this not in connection with the sale because it had not it wasn't there at the time i mean it wasn't in a document neither he nor they the seller even though you know thought about it made it a part of it's not in it's not something that a party was part of the but mark and that's i keep going back to the basis of the bargain whether you read it or not something can be the basis of the bargain that you know i the  terms may be in a lengthy contract while you talk that's basis of the bargain whether i read them or not that's in connection with this had nothing to do at all with that with a transaction that took three hours was totally completed within three hours had no ongoing obligations and you know we argue that he had no ascertainable loss he bought a vehicle he paid i don't remember fifty nine hundred dollars if i remember correctly he didn't ever show any evidence we challenged him to show evidence that what he paid was was may police court your honors i would respectfully disagree with the conclusion that we did not plead repair damages and i would point the court to paragraph two of the petition which is on page thirty three of the joint appendix and it says that these vehicles are dangerous because they are made without sufficient protection or structural support so which stand or impacts collisions which is exactly what our theory of repair says is that you add that structural support through a shield and you make these vehicles safe you make them non defective you make them conform to f c s representation and then of course paragraph thirty two says the ineffectiveness of the trailer hitch repair also places consumers in a position of bearing the cost for alternative repairs and the trailer hitch as discussed in the petition is that ca's and it says agree to remedy for this safety issue so we're not suggesting that you have to repair the repair we're suggesting that you have to repair the vehicles in a different way to make them safe and non defective as f c a represented with respect to the group in ski case when it is submitted i believe will have a chance to respond i will add rate on it then but i will point out that the damages that were incidental and gribbin ski were for problems arising from the fraudulent transaction after the fact which are different those are incidental and consequential damages they are not damages to repair the misrepresentation in the first place which is what farming says cannot be considered incidental and consequential damages so it is an apples to oranges comparison as far as what an argument that that in fraud cases where there's a misrepresentation affirmative false statement that the measure of damages is the diminution of value because you're supposed to get the full benefit of your bargain as opposed to the ordinary contract case if she were wrong on that she is with all due respect but the measure is always the benefit of the bargain the question is how you measure the benefit of the bargain and in most cases the benefit of the bargain is measured by diminution in value but the brown case and the farming case that we cite and the camden case in a couple of others talk about under the benefit of the bargain rubric that when you can repair that piece of property to the place that it was represented in the first place it's that cost of repair that applies so that you don't get a windfall so those cases take into account diminution in value they take into account the misconduct and they don't want to give consumers a windfall with respect to the summary judgment arguments i think they're fully briefed and i'm running out of time but i will say the last point is that if you don't allow a theory like this you are letting a defending get away with market wide representations to the general public as a whole arguably worse than any specific representation any specific consumer and the statute covers those misrepresentations and doesn't require direct transactions thank you very well rick case is submitted and we will take it under consideration