case the district court improperly certified and nationwide class of more than one hundred and sixty eight thousand executive club members who paid varying a fuel surcharge as of varying amounts at var times under varying fuel surcharge structures over the question yes is not that generic one your question is whether it should have decided the dog or motion before it certified and that question is an interesting one and is essentially what you say and your reply in your post recent thing but it would be good to inform the district court there are lots of moot things which would be good to inform the district court but we're not in the business of doing that issues in the important work and in the case where it is properly raised if it makes a difference i'm sure due respect your honor that is one of the questions that is posed but we do not believe that that question is meant for four reasons the first reason is that the class certification decision is supposed to be informed by a daub american honda or ellis for example where your sister circuits took a twenty three f and addressed this very issue i don't think it's technically true that that's really not the issue the issue is would it be wise of th daubert opinion in both ellis and an american honda the district court had issued a daubert opinion prior to the twenty three f petition prior to the classification decision but what the court found when it reviewed that dauber decision was that it was not accordance with what the proper standards were it was not substantial enough in this case we have that exact problem the court may have issued a subsequent daubert opinion but it did not do a fold outward analysis and if it had done so it would have seen that enjoy the vigil ised issues predominate moreover the district court did not comport with this court's precedent  don't suffer judgment you've won if you suffer a judgment you can reach your down british you have but the daubert issue is going to evade appeal and timely fashion right now we've got a circumstance where the class has been certified we think improperly in less this court looks at that issue now and fixes the problem we are going to trial on a certified class it should not have been certified in the first lady you wear yes well that would be great but we have it but we have but they had less to decide but the distorting court inside anyway but the district court has made that class certification in the decision in violation of this court's precedent in violation of in re food service in violation of of us in violation of i p o logical logical extension of what you're saying is that every class or for cation grant where there is some bonafide dispute as to whether it was done properly automatically qualifies for interlocutory appeal no that's not what we're saying we're saying at this i'm sorry we are saying that this presents the type of case where there is a compelling need for this court to intervene there is this is the child i'm sorry if you the trial so that the district courts within this circuit have clarity and that case where everybody really hears the issue is right there and we can think about it and this was done in a case where ultimately from your well it's point of view except  please the court your honors my name is jason lichtman and i represent plaintiffs and certified class we asked that the petition for discretionary review be denied for two independently sufficient reasons first the district court simply did not air below and second as the panel has already alluded to to the extent that it would have been better practice for the district court to have taken a different course any error was harmless in the sense that it's what about the issue that opposing counsel stressed in this case the district court issued a very careful well reasoned outward opinion that perform the fold operate in alice's in the right way to the extent however that petitioners in this case do lose trial which is uncertain at this point they can then print they can then appeal all of these issues along with everything that happened at trial and want to appeal and that's the ordinary course discretionary review would be unwarranted particularly because your hon was performed properly in this case there was extensive briefing on daubert in class certification there was an extensive hearing on daubert and class certification the district court judge jury issued very careful orders and class  nervous that if you go back now to the district court and you put in another six to ten million dollars of your farm's own money to try these cases and you then get a judgment in your favor and it's appealed on the ground that the daubert decision was improper  certification what you're really saying is this isn't the case which crystallises that issue because in fact after this appeal was taken the district where did it in part your honor but this case if it were taken on appeal would actually present and even narrower question than the interesting question of whether daubert needs to be performed as part of class or vacation it would present the very narrow issue of does the district court actually have to issue its opinion absolutely your honor and the reason we know this is that i would say it's more than just guessing at the back of a well of a well respected judge's mind the reason that we know that he did this is that he held the classification and daubert hearings together judge jury would not and that's why the statement quite powerful statement by the opposing counsel that the thinking about dauber is important in the certification decision is not really crucially raised in this case because of that thinking from the whole record pretty well it was weird it wasn't an order but it was part of it would be played interesting if this was a case where delaware sort of came up after completely blew you're exactly correct your honor that as that is how we see it as well i will just conclude by saying that ellis which is the other case that was mentioned here today actually supports plaintiff's position rather than british airways in the ellis case that is the one case where the district court performed a full daubert analysis but what happened there is the ninth circuit said and help the district court needed to weigh competing expert opinions only if in the ninth circuit was very clear only if those expert opinions one expert said i can do this with common proof and the other experts said no you can't do that with common proof that's not what happened here the experts in this case weren't fighting about whether it was possible to do things with common proof dr jonathan arnold said plaintiffs when i've got common proof to show it british airways experts in the record is very clear on