understand that but it seems to me that if they were if the plaintiff said done their job in in mid it wouldn't be a problem they didn't why isn't the remedy you have to move for decertification it's not the district court's job to a spot to do it though i think the remedy is at the end of the trial the court just say that the judgment is for the defendant because the plaintiff failed to prove its case on the class what the law requires at trial that they prove what do they have to prove i'm not sure like do they have to prove one of the requirements is that it's manageable today after prove that the class is manageable and where does that rule come from it seems to me that under the rules the proper mechanism is just to move to decertify the costs respectfully i think the the requirement of the plaintiffs is to bring forth evidence so the court can decide who receive the facts or either of the two fa and when the trial occurs and you're left with no evidence as to who received the facts there's nothing for the court to do other than to what it did which i think is improper is to say will give them another  affidavits and see who can recall from four years ago who might receive the facts that's what was improper is you know while i believe the certification was improper because the sandusky case stands for the proposition that you know you have to come forth with some evidence including mrs webb sense of who received the facts our trial judge said at the class certification for now i will assume that they can bring forth admissible evidence at trial because they say they would either they have but but the plaintiffs in this case rather chose d the path where they're going to have an opt out class and use the summary facts logs as evidence of who received the facts verse is what it could have proceed as they have a  of what the district court did ok you know that goes into one of my other point we raise as we think certification is improper because by the testimony of mr comedy for me i had my hands that at least some portion of these recipients receive to be a computer to the proverbial what we call the effects and our submission to the truck or was it you just look at the statute just look at the language of the statute it has to be received by telephone facsimile machine was there when i ask you about that so i read the plain language of the statute to say it has to have the capacity right to receive it over a regular telephone line on to paper right that's what it says yes buried in ok why can't a computer with a modem and a printer receive it over regular telephone line on the paper i would agree if that's receiving it why oh why buy if it's an i pad if it's an i phone or any phone you provide any cellular phone i'm sorry you probably went so i agree the class is overly broad but why wouldn't a computer that receives any facts that is attached to will phone line and a printer why wouldn't that have the capacity to do so has the capacity to intervene in step as a telephone facsimile machine prints it up on receipt of the facts were as a convey that because i agree with you on that but does it say that on in the definition the definition seems broader to me it does not say the definition but i think if you look at the definition the where the the facts originates from is a broader definition there where the fact goes to it's clear that it says it has to go to a telephone facsimile machine which i don't think it's the intent and i don't believe we should even look at the intent of the statute but i intent was to say to go to something broader than that actually machine congress would have said that was ok was about to i think look i i wholeheartedly agree with you we shouldn't look to the purpose of the statute but it seems to me that's your best argument which is the purpose was to stop people from clogging fax machines computers are fax machines but what the statute defines it as is different in kind it says capacity to transcribe text or images from an electronic signal received over a phone line regular phone line on the paper and i guess where i'm struggling is a computer with a modem can do that and a printer can do that if that makes sense i could my death a subset of the planet's class but go ahead and i would say maybe we are reading into the statute more than what the statute says i don't know that because as i mentioned a moment ago there's that intervening step from the computer to an affirmative explained to me i'm sorry to interrupt you but explain that to me because i'm a little lost what i'm reading in over a regular telephone line on the paper what am i reading in it defines it broader than the definition you put forth which i probably agree was congress purpose i'll concede that but the plain language doesn't get you there well i would i think you're reading into is there it goes to a computer there's where it sits until somebody does something with it either delete it print it forward it or something else but i'm sorry the language says it has to have the capacity it doesn't say it has to be print upon  receipt yeah i mean i appreciate that's what the language says and again for you know without looking at the intent of the statute the intent was to not clogged up fax machines and use a paper printer that you know i don't think you need to go there i think if you read that and the facts does not count and if part of the facts logs here which were not admitted contain the facts and the class should have never been certified for how many what how do you deal with the f c c the west facts not get there because the statute is clear correct on the problem is that statute is not clear because it doesn't define the word equipment that's the problem yeah i mean right again you know do you even get there if at the end of the day we can't even figure out who received a fax over whatever mechanism and that's the that's the problem i think it's an avid injury thing that could lead to support of the z direction of just enter judgment as opposed to go later to remember if they received a fax on a certain day is certainly more suspicious and suspect is the reliability of that evidence as opposed to the facts logs which could have been procured in most cases i submit in this case as well problems long but one of the issues here is whether the plaintiff knew of the existence of west five s and in the pretrial process they identified west facts as a witness on their disclosures two weeks before discovery closed so they could have gone out and taken a deposition of west facts and asked all these questions about the facts logs and everything else but as we sit here today the march th facts there is no longer anywhere that says who received the facts on th expert try to do reverse map and say here's the facts list st is the fail and i'm going to do reverse mansome find out who might have received it and then the march th as well they had an opportunity to not be you know forced to go through another process when we already had our day in court americans are now if you want to question related to personal jurisdiction and that is could congress create a law granting nationwide personal jurisdiction over any corporation with sufficient contacts to united states corporations they obviously could only be contests yet the answer is yes and if the unresolved answer and that is relates to the bristol myers question which we did raise and i understand smarting somebody moved in or being i'm not sure the court has to get there and counsel said repeatedly during his argument there is no admissible evidence there's no admissible evidence what we're dealing with is the same evidence that this court looked at and credited authenticate and i could tell you was frustrated in reading what was going on below a district judge did a lot of hard work and you all dropped the ball why shouldn't it be certified classes that well i'm not sure i agree with that characterization in fact i don't what we did was we presented these days i'm in the same way as they've been in every t c p case they were authenticated as a business record of mr commies and there no case anywhere in this would be breaking new ground to say that meeting but didn't the district court he said as much to begin with but why he expected you to admit the evidence is that it didn't seem like even to admit the evidence for sure and he denied it yeah which it was wrong and that's why we're here ultimately it's a business there are computer generated records so they're not  hearsay in the st place they were generated contemporaneously by west facts and received contemporaneously by mr comey is part of the regular practice of mr comey and west facts over eighteen years and what they are is with respect to one broadcast it's a complete log of which faxes failed and which were successful and with respect to the march th the st broadcast he what he downloaded from west facts was the list of those that failed and so this isn't some sort of voodoo mystery math attempts and the but the ones that failed let's assume the district work out the evidentiary ruling right what's the proper remedy what exactly what the district court did ultimately th there was plenty of evidence and it's in the district court's order showing that this was a mass mack mass fax broadcast the only issue is we did we don't know exactly who received the faxes and therefore it was handled in a claims process as in the cases discussed in our brief out of this court is well as a case out of the rd circuit in which receipt of the facts was the issue because unlike this case in this i'm talking about city select versus b m w bank now in that case there were no logs doesn't the district court have to narrow the class based on the definition see it in i pad i phone things like that anything that doesn't have the capacity to receive it over regular telephone line and print it doesn't qualify i think that's right and regular telephone line i think is the key because one of the purposes the statute is to protect the integrity of the phone lines what  i'm sorry if it's connected to wife i yeah so i never connect my computer to a regular telephone line it's always connected to why phone you still have to have a fax number it which qualify if it's got the capacity to print sure but it it's not connected over regular telephone line you but there's a regular telephone line involved because how i don't understand how you get from a regular telephone line to your computer or out how you get from the sender of the fax to your computer unless there's a regular telephone line involved and that's the whole that's what these logs show all these things are sent don't regular telephone lines is that right you can't send a computer to computer no then it's an issue that will show up as an e mail ok let me ask you this are you aware of a two thousand and nineteen it is your honor wrote in the alco case which we focus on for another issue that's something that changed their definition change the playing field so wouldn't be applied retroactively and in fact it shouldn't be applied at all yet because it's still on appeal and therefore it's not a final order of the f c c under forty seven dollars us section one hundred and fifty five dollars c three just argue irrespective of all that the definition is clear it seems like you and you and i agree on the definition maybe my colleagues don't and if that's the case we don't need to look at what the f c c is saying that may be true although i think that  be trying to narrow it in some way in suggest that the definite class definitions overbroad which we would disagree with ultimately i think one of the insightful things in the west facts f decision whether or not it's controlling is the observation that it makes no sense to have and force ability in liability turn on a factor that outside the sender's control that's outside of whose control the senders control so in other words since if the sender sends a blast fax using blast fax software which goes over regular telephone lines and is received and then all of a sudden whether or not that's an event that's covered by the statute is dependent entirely on the fortuity of the technology i don't think that's a tenable position and that's what for ultimately with respect to this case there's no there isn't a shred of evidence in the record incidentally that anybody received this thing on anything other than a fax machine is anyone a layperson would understand it all of which by the by are computerized these days they've got display screens and digital display i'm not entirely sure how somebody is going to draw that line saying ok your device protects you from an unwanted fax ever ty's ing in your device doesn't look anybody can email sense of spam email and have no private inforce ment against them ever ties is picked faxing for a reason and that reason is that people are more likely to see it and have to deal with it and that's what statutes all of and another point on that i think that needs the court needs to bear in mind with respect to this case is this is a class of doctors and dentists doctors and dentists are the last people in the country that regularly use traditional fax for technology and they have to because of hipaa under hipaa it's one of the methods faxing is one of the methods of communication that's compliant with the statute that email is not sufficiently privacy private so  this is a blast fax to a bunch of dentists and it's really kind of a hypothetical theoretical issue about oh well wait a minute some of them might have had i pads or something in order to contacts to michigan because it was never a decision about class actions which are governed by rule twenty three and the rule twenty three is a form of mass joinder and from a constitutional perspective it seems odd to me to say one type of joinder is permissible but another type is in they if it's in effect the same thing well ultimately it's not and i think that's what judge woods decision which was joined by now supreme court justice barrett in the case of the th circuit said that when you are dealing with a mass action case as was the situation in b m s itself these everyone's in the courtroom as parties bringing their claim where is a class action and the rule twenty three is more of a representative so could you bring this in michigan then the other thing is there if you were fifty miles away you could have filed it into lido without a problem is there an ohio corporation couldn't you could you bring this in michigan state court and get plaintiffs from california absolutely as a class action for sure i mean the overtly i mean ultimately i am i haven't looked closely at michigan's equivalent of rule twenty three but my recollection from the last time i did was that it adopted the federal principles you agree that congress is limited us in four k one to michigan's long arm statute so for cure it in u i'm talking about not cured any i c ok because i was going to say for four k one is different but it is for foreign corporations and so you agree that for k one and requires us to apply the long arm statute of michigan right and so i'm not sure i follow why the concerns that were laid out in bristol myers squibb she wouldn't apply here which is that and show it's in all those cases of out defendants and defend it's being protected and you haling man a california plaintiff that has no ties to michigan and ohio corporation that has only ties to michigan or involved the plaintiffs then the answer i think is that we're not bringing in the california plaintiff they're not here they're not parties you can't take discovery from the party thing i find interesting in troubling at the same time because all you're doing then is you're getting around bristol myers with squibs simply by in all the concerns the supreme court raised simply by  calling it a class action versus a master pointer i don't know that it's more i think it with respect it's more of a substantive difference though because when you've got a mass joinder case all these people are actually parties that they're subject to discovery they have to give depositions you don't do that with absent class members but i think also the answer can be found in the shady grove opinion by the supreme court a few years back where it said that for class actions rule twenty three governance and rule twenty three is authorized it was authorized by congress to make by the rules each absent member would be able to individually bring their case in the form of their similarly there's nothing that erases the four k one limitation i suppose there isn't but it also just seems bizarre that for example in thousand and five congress would think nationwide class actions were such a big deal in federal courts that they passed the class action fair fairness act opening the doors and now all of a sudden that you cannot class actions you don't to speak to bring this in ohio which is five thousand and forty to fifty miles away from the court you brought it in without any personal jurisdiction problems because you know general jurisdiction correct not that i think that's true but i don't think that there's any requirement  rule twenty three that it only applies where you decide to go to the defendant's hometown i see i'm out of time so i guess i will ask you if you use your prevail here or what relief would you howard which is no different than the testimony of the experts in the other cases we cited be credited such that we can have a money judgment for five hundred dollars times the number of successful faxes to be paid one of the categories of senders is the person is the entity whose products are advertisers no question that the products are advertised here ensured meiji is absolutely was absolutely involved with curate in think councils asking the court to create facts that don't exist in a other day trial and i submit it's unusual that it t c p a class action case goes to trial but he did and most of these cases are all on the classroom of a case of stage and that was the day they had the opportunity to bring forth evidence to prove their claims and they failed me lee howard was rightfully excused as a witness because he wasn't qualified and the logs  as opposed to creating a centrally a new class structure that allows him to go forward i do not address in my initial comments about your an age i think the you know it's unfortunate it had to be at trial but it was  i'm excluding all evidence both facts logs and emails and other things reported there is nothing that the trial can hold it's how long to say i'm going to go forward from this state that's where they fail on their proof and they fax campaign or anything else i mean that the day of the trial ended and that's you know you take a strategic decision and you can say well we go back and challenge the class or we'll do what the judge asked him to do is come to trial and prove it to me and then i'll reconsider my you know i'll consider the issue and they didn't and that's why there's there is no way they should be allowed to have a nd bite at the proverbial apple and say well we'll do a process which the trial court wants to do that goes forward