everyone understood what this case was about was this software really something that you know you did a google search you got directed to it it automatically said your computer was in critical condition it lured you into purchasing for some amount of money ninety five thirty nine ninety five whatever and it didn't in fact fix that a i suppose in some cases there was nothing to fix maybe in other cases if there was something to fix it didn't fix it so so that was what the complaint said you knew that was what you were defending against so you know you're free to pursue this little further if you want to but if it seems to me this is really more about of the church would was raising here which is this this attack on certifying unplugged claims and so on just seems to take a kind of linear lockstep approach to to civil procedure when in fact the district judge has considerable flexibility and it's the case to shape the claims tomorrow find the definition of a class in light of the arguments that are made to her well i think that's right  any big secret about what the dispute is about here is there well not about what the source bob about the claims just talk of the beyond this so the issue in terms of what this case is about is the plainest claims in this case are twofold one is a software does not adequately scan that they assert that regardless of the condition of the computer the same message came up when you did the initial free scan and the same software no matter what kind of computer no matter what it was sold that's their first of all the software is still for many different retailers whatever message was being sent could have been sent by we don't know what is the council on that point is there evidence that different retailers were making different promises or assurances about the performance of the software no but there's no evidence they're making the same promises and that's the point is the point is the burden of proof so the point is i don't know that's i don't understand why you know this point we should worry about that issue if you haven't put on evidence  what they've proffered at these screenshots that they have now you pointed out a minute ago and i think this is certainly something we'll explore with your opponents that their expert looked only at the original three quotes scanned whatever it was and didn't then take the next step in analyze the purchased software i'll call it and as i understand parent that ecl esau fair is regarded as sacred under the law of british columbia  we're confident of that ok good so that could be a problem with one thousand different versions of the program i certainly can understand that it might be a problem if some people just really and other people have you know malicious malware infecting their entire computer those are two different situations altogether correct and here again the evidence that was submitted know formally we submitted evidence of our people who said here's a software being reviewed by third parties independent giving the software reading reviews here's an independent consumer study showing us off we're getting positive reviews here's an expert we hire he comes in each customer as to why they bought it who they bought it from what they were promised when the wide upon what they paid were they damaged what you deceived that the software worked if it didn't work how much did it work or not work that's all individual period as far as i can tell it the details of the purchased software i don't see what the harm is in the free initial scan other than making you feel stupid to teach your computer is not working but the but he didn't look at the purchase software and as i said i pose just two different possibilities somebody might have a computer that's working perfectly and that might have been lulled into thinking they needed this software in that case the softer wasn't doing anything free trial and the purchase right now i'm saying but that's the normal harm if there is any harm at all other than just psychological anx sure well so there's that there's no real magic that happens afterwards in the sort of the repair  portion of the software it's either going to be deleting the problems it's found or not touching them well but you allege that but we don't know what this software does we don't have expert testimony in the record at least in the post wal mart against duke's era you can't get a b three class certified without factual underpinnings to show yes there really are common questions yes they are going to predominate we don't want to have to look at five hundred thousand different computers in the united states well i that it's doing anything with the problems that the scanning portion finds that once you purchase the software it's just sort of deleting them warranting than leaving them alone it's not doing anything and that's why they're all meaningful actions deleting  that silly so if it matters i think that what the scanning portion of the software finds is usually worthless basically it it's programmed to look for very benign things and in some cases actually things that are required for the computer to operate properly so deleting or pointing those things is actually pretty harmful in and of itself and that's why the software leaves most of them alone but all the the real work is done by the scanning portion determining you know what kinds of sort of whole privacy problems you have or what privacy there's privacy items junk files performance problems all of this stuff i mean that that's really where the software is doing its work and there's there's no really sad that's what makes it so important i think in what troubles me what is our class certification record on the question whether the software operated in the same way across all devices across all different kinds of problems that those devices might have had so mr couch when this is exhibit three patrick out from step was issued he concedes that the voting pro functionality identical across operating systems and computers now these are only going to be windows computers so across different types of brands and whatnot mr sneed also it puts this in a footnote he talks about you know there's only been t significant changes or two really meaningful changes in the versions of the software they've been talking about but they're not changes that would have had any effect on functionality and so do you agree that this is not a software that's able to distinguish between different types of computer so it's functioning the same across them i think mr meyers also in some cases seeds then then why is that a problem i'm sorry i missed the beginning of your question services matter right now they wouldn't and that's why the software wasn't programmed to even take into account these differences it was simply program to look for certain types of files most of which are not harmful many of them are benign many of them are actually necessary to the functioning of the computer the let you know that because you have those files your computer is in critical condition and in serious need of help and you were going to get that help from this software and  with our without an examination what the purchased software which is what i want to call you did i don't see how we have any factual basis to know whether  beaton's claim was typical of the claims of other people whether there is in fact a common performance maybe it just doesn't very modest things and for people with modest problems they're perfectly happy with it but it doesn't do more specific a good thing i mean i'm this is all complete speculation in my mind well as we see it those are big because we know that the software is going to function identically on every computer it's downloaded on what it does in the end i think is a marriage question and that goes to you know the value of what people actually received if it's actually doing beneficial things then and this is what mr meyers is reporters all about if it's actually doing beneficial things then you know we'll lose i mean that's that's sort of the end of the ballgame for us but if it's not and that's what will show it's summary judgment that it's really not it's doing stuff that basically has no relevance to the kinds of issues that would you know prompt that the google search the tributes are put in a evidence that me i don't again i'm just in in the expert reports and mr couch from step a session things like log files and backup files which are generated in the you know the ordinary functioning of the computer it looks for certain registry keys you know and registry keys that are going to be on every single microsoft computer you know part of our contention is that the reason that this software is programmed to look for these things is because it's guaranteed to find them and in pretty significant quantities and that's why everyone is you know that their computers in critical condition it looks for a bad strikes me as the kind of thing under your other class years you're illinois zimmer fraud class if you tell everybody without regard to their individual circumstances that their computers and criminal critical condition maybe there's a problem there on the consumer fraud statute i'm not sure that close to the national class it might well it's not doing something the things you sort of defragging it's not really there in cash it's it's really just looking for the kinds of files that are generated in the ordinary functioning of any computer and telling you that you need the software in order to get rid of these files and neither do you need the software nor do you need to get rid of the files they're there frequently they serve a pretty important purpose and that's what we intend to show in summary judgment we think that the record here allowed that the district judge to conclude without abusing her discretion that address the question about personal jurisdiction national class yeah i understood you to be very doing but perhaps i was wrong that somehow that issue was gone from this case well i do think it has been motion to dismiss the latter is not a final judgment at this point there's not an obligation to file a motion to dismiss for lack of personal jurisdiction so i would think that that issue would remain open in whatever form this case goes forward in this report well i personally would hope not but but so i do want you and your point that i have i would why would that not be the kittens well i mean we were given you were never put on notice that this was going to be an issue in the cases say you have to  personal jurisdiction often say the beginning of depositions put in all of their motions often yes but where's the waiver well that's that's what i would rest on as far as waiver if we disagree let me ask you this about personal jurisdiction  to the extent we're talking about a class action we are beyond the factual setting a writer still myers squibb against here your court because that was just  to fill to trolling again shots you at least find links between the unnamed members the plaintiff class i would just say that the question of personal jurisdiction in this kind of situation is a complex one  case yet it has not been raised by the defendant yet so i would say i do think the distinction between the class action the mass action context is there's at least something there because of the mass action context every plaintiff has to be before the court  and i i understand sort of the interplay between phillip petroleum bristol myers to be a bit you know if the named plaintiff can help a defendant into the forum they can represent a class of everyone they can adequately and typically typically don't represent the theory that the product was unfit for your purpose how that at least fine seems a little jarring to me in terms of a class based claim to the extent we're worried about different customers particular purposes right and a stand your concerns i think it's it's important that the law working with here specifically allows you to show that you've communicated that purpose with by implication and i think the evidence of your tony roche particular purpose communicated by the defendant not not an individual customers pretty well there are there are cases that you know in circumstances in which like we think we have a product is meant to serve one purpose and it's aggressively marketed for that purpose the action of the plaintiff in purchasing the product is held to show by implication that they need it for that purpose and that's the theory that we would proceed on i think that is one that applies across the class of the theory does present common questions if we later that you know if a fact finder if the judge at summary judgment determines that you know as a matter of fact our evidence of this implication is just insufficient we'll have to revisit that but i think that for the moment at least there is sufficient evidence to conclude that there are common questions on that theory and if there are no further questions so either  what their own allegation is but the fact is the software was not just for one purpose it was for many different things that could be happy with your computer and you want to more which could have been one of the points where the customers purchase the software in terms of the issue of the scan talked about in terms of the issue of the the software across in your book this out is there is no evidence that says this software was the same for each of the customers of the there's no evidence of that and the their expert not doing the even else of the software at issue but the issue here judges that counsel want to see the software does nothing then why did they get reviewed independently and said that software got five stars and two cows why would these a customer climb back saying the software worked for me obviously the software wasn't guaranteed to work for everybody that's why the we offered and guaranteed a thirty day money back guarantee if you use the software if you don't like it you get your money back the problem here is the point of witted nine months to get his money back that's too late but the software did f in this case shows the contested evidence on that issue the point of saying i used for both the point of saying something my refereeing stuff my business so that is not just saying yes or no and we have a right to contest that you do and it's perfectly ordinary in managing consumer class actions to say that a lot of issues are going to press to get first with affidavits and then if you want to contest them you have the right to do that and problem here is all that there's going to be individual need to get into these in terms of what these people did with their computer what they wanted for how it worked that he can't be done by affidavit and now we're getting in show you can call them in if you want to i mean that is this this is the kind of bluff the defendants used in consumer class actions all the time to make them sound impossible but the problem they're not but the problem with the judges in this case is are we going to call in twenty thousand thirty thousand five thousand people you can get started if you need to but but maybe it's a three part question for business or part of a personal i have an excuse you know many people such as almost anyone who works for an employer i have a work computer and they have their own personal home computer they don't run their own business it's going to be very claim says it didn't work for me and we have contrary evidence which is just as important never even addressed the says it does work and so you don't want actually a ruling from the district court that just across the board exonerates your company which is what you would