may please the court this case is about whether a false advertising action concerning a high end consumer involvement purchase of a stem cell treatment can be properly certified as a class action when the alleged misrepresentation is found to be vague and subject to different interpretations and there is no record of a uniform controlling definition for understanding as to what the misrepresentation is the court here should reverse the order certifying the case and remanded because the district court abused its discretion when you quote narrowly certify this case for class treatment that's very one hundred percent  pretty definitive to me well they've been court found that it was indeed vague and the court specifically did not adopt the plaintiff's proffered interpretation of it which was that it was satisfaction with the outcome of treatment the results of the treatment and that's not what that is that is factions serving i thought i thought that i thought through these purposes efficacy was off the table in my confused no you are you are correct your honor or correct the court has specifically ruled that it will not try the efficacy of stem cell treatment in this case that it is only a case about a false advertising individuals who responded to this survey indicated satisfaction with their experience with  graph among several graphs in the context of what was actually displayed on the website it didn't a different question as being asked of different questions being asked by just five indicate that there was a one hundred percent patient satisfaction i understand your point of satisfaction about what is an issue but didn't always say one hundred percent patient satisfaction at a time when patients had complained it stated that there was one hundred percent satisfaction in that that's correct that either the patients had their expectations met or exceeded but it never represented that that was as to the outcome of the treatment and we know that we know that but why is it misleading to say one hundred percent patient satisfaction theory because the kind of the the report of dr caymans was expressly rejected for the purposes of showing causation so you cannot compute causation and reliance across the class there is no cohesion among this class as to as to what caused their purchase now now numerous courts can i don't i don't i don't follow you have to help me understand that  i don't understand your argument along those lines you know i'm a i'm a potential purchaser of this service but my wife has has parkinson's i don't you know web site i see two things that are important among many things that are important one is that you're not making any guarantees about the efficacy of this product but at the same time you are telling me product why is it the one hundred percent not misleading because the because the one hundred percent looked it is true people people did respond that they didn't have positive outcomes that's that's true but but that is not what the patient charts and if you and if you read them they talk about in the in the with the paragraphs introducing them and if you put them in context what is talked about in their charts and in the surveys is customer service and level of care and whether or not people are satisfied with the medical team or whether their expectations were met with the medical team whether a stem jennings is a trusted communicated in the record is replete with testimony from actual members of the class that that is not how they understood those charts in this context where the people are advised to meet with their physicians to read othe disclaimers on the site that say we do not guarantee results that is not the common controlling understanding of the charts thank you be imputed across the class and  for the purposes of showing some sort of cohesion with the class i see that i am i'm past my time and would like to turn it over to my colleague christina to discuss the problems with the damages m view those patients out of action rating in different ways so not to say that everyone interpreted the patient satisfaction rating in the same way simply is not borne out by the evidence that and the vet know it in terms of the damages model there  individuals indicated that their expectations had been met by stem genic the care and i think if you read the patient satisfaction ratings in their entirety it makes that if you clear i think it if it leaves at least to a certain population and i indicated at least fifty four of our declaring people who have had this procedure said they didn't interpret them in that way and so well there might have been a small number of complaints afterwards i think the number is somewhere around ten percent max i think that that that is not indicative of any sort of uniform understanding and i think part of the problem also of the certification order is that the court have foregone the treatment altogether but rather they simply would have paid less for it and that's what they're trying to capture and you can be small and so why doesn't doctor stuart who is the damage is extreme making the name right you know here's the representation that you would have been exposed to but what if you knew this other time in court you know how how would that have affected your willingness to pay the full sticker price and divert the responses are what they reworked i think both of those have that same deficiency so without knowing what the the major improvement whatever that percentage of individuals who reported major improvement i mean st of all will take issue with the fact that the patient satisfaction rating in the  and were not intended to two to communicate major for me but even if we take that somehow that's what we should be measuring here there is no way to come up with that variable that's not something that then genic actually measured not something that was recorded it's not  something that we have any factual basis for putting that in so that variable that there's no way to try it i mean what we're left with is trying the f because the a procedure which is again not what we're doing in a way so i think that's the problem with the model that still tethered to this idea of improvement benefit which is divorced that from what the actual patient satisfaction ratings say and more importantly it just doesn't get us there is no way to measure at the pick up help me understand i think i'm maybe not clear that on the facts i thought that the the statement that what people were being exposed to was basically that paid you know one hundred percent of the patients who got this treatment they were satisfied with their overall experience of the overall experience and that their expectations that at least on the what if you knew that in fact fifty percent or whatever the percentage of the people who actually ended up being unhappy with the right that's that's the the the true fact that would be necessary to render the statement  whatever that nd figure is so we can't do that there is there is no way to quantify that variable one because the term major improvement is is that the activities of someone who decided to come get themselves therapy for cosmetic procedure would have a different idea of improvement of people who are desperately ill and for a whole all of the f d a approved treatments have failed and that's the context in which i have difficulty with you one hundred percent people who have received stem cell therapy for a wide variety of conditions but i think in terms of the damages model and to get to the question and the fatal deficiency here because i'm not saying that there are could not be litigation and that that issue could not be resolved in the context of an individual case what i'm saying is it's not appropriate for classified treatment because we cannot determine how to quantify major improvement significant benefit or any of those things because they actually were not measured so we do not know what that variable looks like therefore the damages model failed in and of itself and also failed because it doesn't isolate the premium that was paid because of this one hundred percent satisfaction claim so putting aside the representations putting in by those ideas  a marketing his and not a medical one and the claims for really arise out of exactly what the court was talking about questioning in council about the targeted advertising campaign against this small and vulnerable group of consumers and each of is the materially misleading statement or a false statement likely to just be a reasonable consumer and that's an objective ory and so don't those are the common questions that just report identified and then really you know it sounds it sounds as if the court agrees with you just for forgetting deference to the district court as it should and then the question becomes the different courts weighing all of that with respect to the predominant  again just for courts weighing about what's on for those questions and if you don't have to have every issue as a common issue when they must predominate and the court laid out of those inquiries that binary discussion that the the misrepresentation issue i think judge parker is right that the court's concern here is animated by a very vulnerable patient population that's looking for hope and that in that materiality and we're talking about whether it's important to the purchasing decision as opposed to just considering whether to make this you know pretty significant step but it seems to me that we need to know whether or not people saw the patients had a separate faction surveys and we don't have that be successful could i could forgive me for interrupting but you're kind of at a high level generality and this issue is important to me could they be successful by showing that the plaintiffs don't remember seeing the patient satisfaction surveys or they didn't see them where they weren't if they saw it and i'm having a hard time with predominance in this particular type of case because it's not a it's they're not buying a product like in the percentage of salad oil on the shelf this is all natural it is a different type of product than the purchasing decisions very different and we have people of different class with different underlying medical conditions some of them i think very very serious and maybe some not so much of her posing council and b m people for whom that price tag would be maybe a very great deterrent or maybe not a term to turn to at all and then there's this other element that i don't know how you answer this question on a classified basis because of these these people were all required to consult with their physicians and get or those individual choices and i appreciate that and so i think the i think the answer to your question is those those inquiries don't come into the resolution of the truth or falsity or or whether of them representation was materially misleading and price tag and even though it is in the context of a medical treatment it is a product it was sold like a product it was marketed like a product to drive a product and this was a very intentional marketing scheme and so where reliance comes in of either with respect to a or i'm not sure if we back up on that forgive me for interrupting but you know these these issues often overlap usually overlap and they can be devilish to try to tease apart but they have another argument about the typicality of those two representatives so when you say it was important to them those two particular human beings had you know very different information that didn't strike me as particularly and i and i appreciate typicality is not a tough standard to meet but they did have other information that seems likely a typical information about gen x it doesn't make them atypical they were still subject to the misrepresentation that is the key inquiry here that is common to the class and they were injured in the same way because because the influence decision we do have a screen shot of these that one point from what that looked like and the survey results are are nearly home base but you have to scroll down there's a bunch of other information that's presented so i guess i don't see why we just in assume that everybody can learn it on the home page me i'd also ask for permission to do that i can't put my finger on it because i know that my time that you've got you've answered my question thank you if we need any other authorities will issue an order request but i interrupted you  thank you thank you both there's none of those issues however the definition that would ultimately agreed upon by the court is inconsistent with that and there are a number of internally consistent with the court's order as we've identified in our briefing that the q thing that i would like to just decipher the or is that we have the only thing we have is materiality on the consideration we do not have a link which takes materiality from consideration to the purchase here we also don't have it damages theory that  doctor keim and report for purposes of establishing causation so that gets back to the class wide mechanism and whether or not this is the appropriate method for trying this case and i have them and you have that we don't have that link and we don't have a damages model counsel thank all counsel for your arguments are very helpful we'll go ahead and take that case under advisement and move on to the last case on the calendar today please