companies as as clients and after two years it was down to seventeen so i suppose i can answer the broad question but now there's competition well there's unfair competition this competition and  because they're not abiding the financial risk it's not just competition is always competition and everyone's happy to have competition that's why we live in this country but but there's also they set forth specifically an exception to the statute seeking financial risk where you have to buy financial responsibility for state can regulate with respect to that but you're saying that the insurance laws apply and there is seems to me that surance v your two different animals insurance versus our under the under the federal under the risk retention act they define insurance and origin as insurance companies it's what they are they insure and laws on the books now if i don't have a private right of action and counsel and you're on a lot of us and i and they distinguish gatos by saying there's a contract but that's ok don't said f the same there was no private right of action because there was no there was no seven hundred seventeen eleven there there because there was no private right of action can you be asked the question can you have a common law action when the violation is simply of a violation of that statute and the answer and gave us was yes they can so if we demonstrate as we have been in the papers that for example ocean doesn't have the capital requirements now the net cash available that's required by the statute and we and that's part of the record and because of that they could operate much ch the class which he was certifying and the class claims which were to be accorded class treatment in violation of rule twenty three c one b and this court's decision in walk tell i think the walk till decision makes it clear that the district court is required to a den of five a class of the class claims and they readily discernible language that's the language from walk tell so that the parties are aware of what class has been certified and what class claims are going to be accorded class class treatment now does it appear that those who might have injury claims would be in clude it can we can we difficulty is that the plaintiff moved to certify the class under twenty three b two and three and one cannot tell from the opinion at war from the order which class judge kavanaugh certified nor court failed to conduct what this court cold in his seminal decision in hydrogen peroxide a rigorous analysis of the rule twenty three factors with respect judge kavanaugh was opinion is conclusory there is a one line sentence in it in which the court this court says that he quote carefully considered the submissions of the parties close quote i think i did in proc side requires more in particular it requires the district court to address all factual and legal disputes which are presented to it by the parties now of particular concern to us is the expert testimony which the court is required to consider und resolve and consider under hydrogen peroxide and in this particular case the the class point of them is a far fetched to fight at her deposition that she was unaware of the risks  of indoor tanning and that had she been warned of those risks she would not have done so now the the survey which we presented indicated that sixty eight percent of all hollywood tam tams customers were aware of the risks associated with indoor tanning particular the risk of skin cancer seventy percent of the of the sample overall was aware of those risks and clearly there was also expert testimony presented by the by the by the plaintiff which which isn't which contradicts in some some respects of the the testimony that we presented with the book but the principal point is that the district co did not consider this critical expert testimony and was obligated under hydrogen peroxide to do so and and resolve that issue it did not and what is  action is relevant well the the clip the complaint alleges that the plaintiff and presumably the class was misled by the disclosures made by hollywood tans about the predominance superiority and that that leads me to my next point judge stapleton and that is the district court failed to conduct any conflicts of law analysis which is constitutionally mandated by  conflicts of law analysis and did you make a conclusion though that the jersey law protects and kind of is the is the best or is a good poster child so therefore it did judge but that i respectfully submit is insufficient because the new jersey consumer for can consumer fraud act is different in many respects from consumer fraud statutes throughout the united states now at the time of the district court's decision i think there were three hundred  hollywood hands franchisees operating in twenty one different states and we pointed out in our briefs the differences between the consumer protection statutes in those various states and new jersey has a new jersey supreme court has adopted certified in that case was a class consisting of of individuals who had applied for mortgages with a new jersey mortgage company so all were transactions in the del ponte the case were new jersey transactions misled me there's class actions in the vanishing premium situation where you know you'll probably have a thousand possible class members and yet you don't really you're not going to know until after they haven't individualizing corey whether any of them were actually misled or not but you have the same situation here where there's a broader misrepresentation claim you can't have a threshold members were not actually misled well i think that's one i think that's one of the problems and i think that's why it was absolutely necessary for the district court to consider the expert testimony which we presented now that the there's no evidence in the district court's memorandum opinion order that it considered any of the expert testimony that presented by the by the by the plaintiff or by hollywood tan requires that that the district court's decision be vacated and that the district court be required to conduct an analysis of the rule twenty three route factors in accordance with hydrogen peroxide one other point as i  the plaintiff in this case expressly disclaimed that she would or disavowed any pursuit of a claim for personal injuries and we had argued the district court that that made her an inadequate plaintiff because of the dangers of claim slip claim splitting and preclusion of claims if the class were certified and indeed there's a significant body of case law would suggest that to be the case one of the cases one of the recent cases a more well reason comes out of the texas supreme court applying texas law which also requires a rigorous analysis and in any event the district court did not consider that now that's that's a i think that's that's also critical and the the case weight which is based on the risk of health risks of skin cancer where the plaintiff herself is not pursuing any claim for personal injuries i think that if such a class were to be certified and we respectfully submit it should not be each particular jurisdiction in which the plaintiff brought the point or the law of the law of the jurisdiction in which that particular class member lived or was a citizen and i guess all the briefing having to do with causation reliance on how that viewed if we had different state laws we could have different burdens with respect that's correct your honor because under new jersey's new consumer fraud act a plaintive must prove and ascertainable loss and must demonstrate some causal nexus between the absolutely yes or tangible loss and the the alleged violation of the consumer fraud act and that in itself introduces a whole host of individual issues into the kick into the into the case unless the court has any further questions i reserve the balance of my time just hydrogen peroxide had been decided by this court before judge kavanagh is ruling no i believe it was decided in december of two hundred approx i believe was decided in december of two thousand and eight judge kavanagh's decision was decided i think in august of two thousand and eight or ever even in hydrogen peroxide with the district court did not have the benefit of the hydrogen peroxide decision this court vacated in remanded for proceedings consistent with hydrogen peroxide thank you right here  good morning your honor smith please the court my name is jeff carton i represent the nationwide class that was certified by judge kabanov last summer what is the class really find it the question or honor is the class on whose behalf misinform moved and that would be all hollywood tending customer sit in the record it would be in the record it would be in our motion papers in our notice of motion i believe it would be in our in our in our complaint where i mean where do we just haven't sent by the court this is the classes that's what i we have i believe in all likelihood we would have had it had we had an opportunity to prepare the notice that would have gone to the class obviously the notice that would be prepared to go to the class notifying them of the certification which mr lost his client obviously would have had ample input as to together with my office would have ultimately been submitted to judge kavanagh for his approval not so is this matter not right because we do not have yet the order of the court that gives the imprimatur to the class definition that is an interesting question to trundle not one that we've briefed but i believe that we've operated on the presumption that the class we sought to certify was readily identifiable from our papers and i believe can be identified from judge kavanagh's order is there a specific statement in either his order or opinion which identifies the class now i think the record is absent in that regard so perhaps perhaps the appeal may not be ripe in terms of had hollywood tans gone back to judge kavanagh seeking some type of order or paper that would then create ripeness for this appeal to have been pursued in any event i do believe that that issue could have employed been tackled at the time that notice would individually or in a representative capacity blank rome certainly would have said she doesn't have standing to pursue that claim because that's not right and your bill who were injured might later be part of the entire country no because i think we can do that we can do that with a notice that goes out that specifically sets forth the claims of the supreme court has said the issue preclusion that would potentially bar a future litigant would only b s to matters that were actually litigated in this case we would not be litigating in this case on a class wide basis personal injury negligence issues of causation of the actual medicine of the actual science that may or may not support the the development of skin cancer as a result of the exposure this is a consumer fraud case and it's a remarkably simple case we never we've never asserted a claim on behalf of members of the class who may have suffered personal injuries we're unaware of any none have been brought to our attention there has been some publicity that has arisen as a result of the soup but we have not been contacted by anyone who said i have suffered a personal injury as a result of my hollywood since experience what we're seeking obviously to challenge and we believe we will challenge successfully a trial is the omissions in the first instance and then in the second instance the affirmative misrepresentations that are being made and what's unique about this case and while i would submit in my nearly twenty years of practice in the class action arena there are few if any cases that have the commonality that this case does for instance the the conflict of law analysis which counsel urged both judge happened on again or just this court to somehow consider really ignores all together that if we were representing solely a to enter into piqua kansas this is still uniquely a new jersey transaction that dinner steps in to a tanning booth that was manufactured in the state of new jersey  that different courts and different states are going to look upon this differently in terms of protecting their citizens from actions such as this i don't know how you can  know wave a wand and it's new jersey did the court reached did the court say what you're saying that is the judge having a say you know what i've looked at this and no other state has any interest or any conflict of laws and alice's that would make anywhere else he doesn't the judge also said that new jersey has perhaps the greatest interest in him in the case is this the appendix contain reference to laws of other states that would be implicated here for him to have considered that there was  submission by hollywood tans beneath in terms of various states standing tanning statutes none of which really go beyond a ricklefs the federal regulations that otherwise govern hollywood tends actually i mean consumer fraud statutes i don't believe the the lower co lower court's decision necessarily addressed any differences that may exist but again i would suggest that none of those differences are relevant to the case new jersey has one of the strongest consumer fraud statutes in the country and when you look at the predominance of new jersey contacts and interests the label is created here in new jersey the scripts which every salon attendant reads from the frequently answer questions that are provided are all drafted created disseminated published originate here treasurer of the fact in jersey has the strongest consumer fraud i mean new jersey cares a lot about the consumer there may be other states where the fraud statute is weaker because they care more about businesses operating in their state and i think it's difficult to say that the new jersey interest is necessarily the interests that prevails everywhere i would respectfully disagree and for one reason your honor every one of those franchises in each of the twenty one states has a clause in that franchise or franchisee contract that says new jersey law applies if i'm a small business owner in ohio in california in texas and i decide to open a franchise i am affectively for going as a business whatever rights i might otherwise have under my own state law and i'm subscribing to new jersey law why should it be any different for the consumer who then walks in and in effect isn't misled what is there for them a concern the consumer receives the the alleged misrepresentation mission for me or where a listener on his or her state and relies on it there and suffers injury allegedly there how can you say it's a solely new jersey transaction when somebody in washington state walks into a salon well in cvs a misrepresentation or misleading omission in washington relies on it in washington and then is injured in washington you don't think washington would say we've got a pretty good interest in applying washington law to see that this washington state resident is treated just like there certainly is some superficial appeal to to judge stapleton comments but but but i would so i would suggest that when when we go beyond the surface and we look at stay how that service was put into the stream of commerce when we look at to where those omissions where th misrepresentations emanated from by whom they were made where they were published from when we look at the manner in which this business is conducted as tightly and as uniformly as it is it might actually be a jump ball and look at the fact that it's a jump  and you make the assumption that it goes one side or the other kenya and that washington state would say oh of course new jersey law is just fine well i think you can win the case has been brought as it was in new jersey in the home state in which the defendants operations  every case that's brought in the home state of a defendant business where there are plaintiffs have been injured that we're caring more about the defendant's home state than the plaintiffs and that often is the square quite frankly oftentimes the case as judge alec and would be familiar california the ninth circuit has repeatedly expressed that the ninth circuit will apply california's laws on a nationwide basis when the defendants operations are principally or primarily headquartered within that state new jersey is is is is is about is a like mine and certainly new jersey has he let the district court reach that conclusion through a an analysis that comports with conflict and choice of law as compared to saying you know new jersey is has a strong law so that's fine i would respect listen if it would elevate form over substance given the new jersey supreme court's most recent pronouncement that it's conflict of last test is to look to the state with the most significant relationship simply cannot be argued credibly that there is a nother state within the fifty states who would have a more significant relationship to the manner in which hollywood tans does its business then that's a loser's jersey supreme court in and conflict of law issues referred to say we're following the restatement and the most recent pronouncement is that if they say that the most significant most significant relationship yes but and they refer to section well one forty eight one one forty eight of and when the action the plaintiffs action in reliance took place in the state where the false representations were made and received the local law that states determines the rights and liabilities of the parties those say emerges this court to require him to do the outcome will be no different the outcome will be that new jersey is the state with the greatest contacts the most significant relationship wasn't he required to so forth and  explain why new jersey has the most significant interest well he didn't have the benefit of hydrogen peroxide of course at the time his his decision was issued and i do believe that he had the briefings available to him which he certainly stud and considered fully and then issued his decision didn't make the remarks that he did regarding new jersey's president or this relationship with an analysis to support it i understand you've indicated earlier that we may not have an appealable order because it's not right on the other group that's correct is it also not life on this ground i suppose the reasoning would would apply with with equal logic the appeal may not be ripe to the extent that that conflict of law analysis need to be set forth fully in his decision again i would submit that need not be set forth given that it was injury claim to split from her allegation of consumer fraud i think the supreme court's pronouncements are really clear in this respect as only those issues that are actually litigated that would give rise to any produce of effect in the future i would see to it to a stop and i believe that's the problem well i believe respectfully we can and we can address that when we fashion the notice that goes out to the class and i believe that the notice will is due as much as anything perhaps even more than judge kavanagh's opinion in order in terms of setting forth from our perspective class members those claims that fall within those claims that perhaps all without the ambit of the nationwide certification i would have no interest in fact to the contrary i would would have an interest in specifically carving out personal injury claims from the notice that would go to class numbers to insure that very point i would imagine hollywood ten should have a similar interest so as to avoid having to litigate on race to the cost of collateral stoppel grounds at some point in the future the potential precludes the effect of this nationwide cluster of occasion i would close simply by reminding your honour's of the the abundance of commonality that exists in this case we're not at that stage quite yet although we hope to be shortly we're actually getting the merits of the case but obviously to the extent that the merits are intertwined here we have demonstrated and i believe judge kavanaugh amply exercised the discretion that should be afforded to him the predominance of common issues that can be tried on a class wide basis mr last has said much about the alleged common knowledge that he believes pervades class members understanding and awareness but i think there's a similarly commonly held pervasive understanding as our survey evidence revealed the customers would change their behavior they would alter their consumption decisions if informed of that which hollywood tends affirmatively chooses not to inform them by this printing labels by having scripts that pronounce a safe way to tan without sufficiently identifying the health risks health risks that are associated with under ten thank you very much thank you very briefly your honor some whiteness is not an issue in this case this appeal is ripe the failure of judge kavanaugh to identify the class in the class claims in his memorandum and his order constitutionally mandated mr carton seems to overlook that fact i invite the court's attention to a recent decision of the new jersey superior court appellate division told beagle b e g l v park west gallery wh cited in our brief and as a at appears a page three ninety four new jersey super ninety eight that case also involved a he could nugent a new jersey consumer fraud class action and in that case the appellate division noted in multistate class actions variations in state law may swamp common issues and defeat predominance when considering a nationwide class a major concern in the predominan determination is which states law should apply to each member of the class that is exactly the point and that is what judge kavanaugh fail to do this record must conduct a conflicts of law analysis it did not do so in this