damages calculations alone cannot defeat classification like other circuits the circuit plasty did not read you at the u s supreme court's comcast decision to mean that rule twenty three dollars b three requires class wide a class by damages model rather under comcast as long as the proposed damages calculations to be traceable to the theory of liability and a reasonable the basis for the calculations can be provided then rule twenty three three is satisfied as to damages this was reinforced by the court's hyundai and and fuel economy litigation decision that was issued last week that decision class and if so how yes because in the st instance the district court looked at post purchase events what what the last he instructed is that the district court in consumer fraud cases involving lack of disclosure needs to look at the the time of purchase so in pelasgian the district court damages model a didn't take into account the fact that some advertisers are getting some value out of posting ads in these arab pages because of maybe s ego computation and so forth so is that the there is an actual design defect site that's been installed and it's yesterday in all of them and all of it and therefore the damages should be calculated based upon that defective design regardless of what happens after drives up the on the record yes yes because the point there is the claim here is that they didn't disclose the information so if you look at comcast comcast says when you when you analyze damages you assume that the plaintiffs prevailed on their theory of liability at trial the question is whether the damages actually flowed from the theory of liability so here our disclose it so if you're a consumer at the at the point of sale you say you know you you receive this car let's say you were see you bought it for thirty thousand dollars you didn't know that it had this known defect now if we're  right as as an analysis holds that we have to look at our case as if we prevailed on our theory of liability then that nissan would have to disclose this information so if nissan disclose the information saying consumer reasonable consumer which is the standard you have you know this is this car is listed at thirty thousand dollars we we have this alleged defect involving the clutch you can fix it for seven hundred dollars that's not included in the price of of of the vehicle but you can fix this defect for three hundred dollars for seven hundred dollars and you wouldn't have this clutch problem that could create a safety concern what would the reasonable consumer do the reason the consumer would negotiate a discount for seven hundred dollars that's the that's the model that we have the difference between what the consumer expected to receive and that what the consumer actually received if the consumer had all of the information available to them so the district court erred by not analyzing our theory of liability delving improperly delving into the merits of the case as in the placidus record and coming up with  analysis of our model that is actually not what we say it is because you know if you look at stephen boyle's declaration he says very specifically our model is a benefit of the bargain model that takes into account the cost of repair in order to have the good conform to what the what the buyers expectation would be so instead the this report used in a in a posit cases involving juice or clothing and called it a full refund model this isn't a full refund model we've we we didn't ask for a refund of the vehicle that would be a full refund model in cases involving full refund models you're saying you have to discourse the entire amount that was that was purchased we've the you know the the plaintiff here and in class members are purchasing a vehicle they're not purchasing some clutch component what we're saying is they have they're entitled to make sure that the car conforms to their expectations which is a vehicle free of known defects so what you're saying basically is the vehicles have a diminished value because of the clutch yes and all vehicles have the same diminished value because you don't know how long the clutch is going to last or if it's going to last at all in if it's going to go out when it's going to go out yes exactly and and so so a consumer can't play russian the apples and oranges comparison is that when you buy a juice you're buying the juice you're not buying some component of the juice right here we're buying a car what we're saying is the car is should be free of known defects and the clutch problem is what we're saying is what the nissan should have done was was provided an amount to repair the problem of the car so that it conforms to what the what the consumers expectation would be now if the juice had an additive that got people sick or something like that then you know they would have gotten any benefit of the juice but that's not that's not what those uses cases hold so  and i think i think one of the one of the key errors that that this report made was sort of looking at the issue as if the consumer was trying to buy a cylinder parked you know that's not what we're saying what we're saying is the consumer has a right to have a car free from the effects and again we have to sort of assume in analyzing the images got to soon that we're we've prevailed we've is the clutch should last longer than that you're just you're not supposed to have a situation where if the nissan knew that the that this was a problem that that we should have driven we should have taken our chances with a clutch that may or hundred thousand miles something at least you know the lot of the span of the power train warranty at a minimum so you know that that didn't happen here with respect to our plaintiff and you know in the in the briefing there is a lot of talk about manifestation of symptoms but that's that's not a consideration for classification this court's decision and wall and versus jaguar mean that very clear and in fact in the baker vs microsoft isn't that was overturned on  claims that judge co number one rejected cost of repair as a valid remedy for breach and number two dollars improperly shifted the phone in measuring benefit of the bargain from the time of purchase to the purchaser suppos twenty three this court's precedents she applied comcast if you look at pages five to eight of her order it's pretty clear that she identified the right rules and applied them in particular she accurately describes the rules related to the sufficien y of class why damages models under comcast and plaintiff does not even argue that the court applied the wrong rules she did next she reasonably and actually read the record in this case that i guess maybe read the record a little differently than you i and it seems to me that while inverses jaguar about a very similar damages model to what the plaintiffs are suggesting here in what way did judge co distinguish that model from the one that you are now describing i don't think that judge went there or had to go there i think what judge poe did very simply was to look for whether or not  was any evidentiary support for the assumptions made that underlie the model that was proposed by mr boyles and what she found in this case was that there was no substantial evidence to support the zero value was sumption that he applied to the car as delivered and there was no evidentiary support for his adoption of the cost of repair as a proxy for the difference in value or the market value of the vehicle and that's what she decided she did not as the plaintiffs of said reject the idea that there could be a cost of repair remedy in an appropriate case and under the appropriate circumstances she explicitly assumed that of course to repair with the right evidentiary support and in the appropriate case could be a valid measure of market about what she found here was a complete absence of proof by bo support of boils that the average cost of repair was a legitimate proxy and a valid model for assigning market value in the price premium circuits how should let let's assume argue base a red damages remedy based on the cost of repair but you have to do the work to establish that that's an appropriate thing so what you need to do is you need to evaluate market value like economists do every day and you need to look at the various different circumstances that go into the purchasers decision and modify their exploration has a value of what i'm sorry say that the market value of what of the vehicle as that of the whole car the vehicle was delivered with a clutch that is functional for sometimes tens of thousands of miles and has a slight risk of malfunction at some point during its useful but with counsel that i mean that's all going to post sale action now is what's going to happen there after the plaintiffs have hopes indicated that if i understand it correctly that you have a car all the cars that in this particular design have a defective y designed clutch you don't have to show what's going to happen later on you just have that design now whether they can prove that i don't know but if if you take that argue endo you don't have to get into what's going to happen in ten thousand miles or twenty thousand miles a day in your life the reason is this and again it's a matter of focus and again their argument is that you're focusing on post sam experience and you should and shouldn't do that  and my argument is the judge cofer civil specifically cited by ascii specifically said she was looking at the issue of value at the time of purchase and then the language that she used specifically demonstrates that she was looking at the question of what the consumer with the information would have valued the car at at the time of purchase so the characteristics that we know of in the record for example based on plaintiff's own experience that these vehicles are often driven for thousands of miles often repaired within the warranty period and have a very slight risk of this malfunction that i do know that i could would you drive a car for thousands of miles knowing that a part could  go bad at any moment it depends on the part number one it depends on the individual's expectations regarding what that safety component is but most importantly your honor it's not a question of whether or not you would drive the car the the question for better through the bargain analysis is how would you value the car at the time of purchase what kind of a discount would you stand for the possibility that this car was going to  malfunction at some point down the road i'm sorry during its useful life you're just saying you have a better way than to make it out of iowa ation exactly and that's what judge cole was saying was where's the evidence to support adopting total cost of repair rather than some measure for what an actual consumer the reasonable actual consumer would have valued the discount based on this defect at the time of purchase if you did you have evidence of that there was no evidence whatsoever and that's one of the things that judge remarked was you know he can show that there is an actual average cost of repairs you procreate measure if you can show that there's no value whatsoever to the part but not only did he not prove it he didn't even consider the question and in fact his zero value assumption that there's nothing that the consumer would apply in terms of value to the original car as delivered or the c s c as delivered which d that has that's actually contradicted by the record which demonstrates as an illustration of why the the boyles assumption was invalid that there is obviously value there's much question is that a values because they don't to for twenty five thousand miles instead of fifty or one hundred whatever the twenty five or forty or fifty and so so the better value is never the value is whatever distance they get with that defective clutch so the purchaser doesn't have the opportunity to decide what they think it should be reaped what it's worth they just take this car and it has some value because a question always burned out the st mile and that's you know that there is some value court that the purchaser would apply to that question for that there's a negative value too to having your car break down and have to be towed in and all the of the consequences to go along with having to mess around with a car that's that's been  not only damage like that but having to deal with the finding a place to go if you have to spend the night somewhere or wherever you are there's a huge negative value to that too isn't there or understood and agreed and judged it was the same thing what you found however but you still have to you know says and you still have to put a number on it and you can't just assume that everybody would apply you zero value to the original pledge and would demand the full discount price that may be true but you have to prove it and boils didn't prove it of other people would feel the same way and it seems to me that there is an analysis exactly how it should play out i don't know but if you look at the car you say this is this is got a defective clutch to design i think there is a way to calculate what that might be whether it's seven hundred dollars i don't know but i don't know that at this stage of the proceeding when you're just trying to decide where you've got a classic commonality alice sorts of things you have to well let me ask you this right you say we have the plaintiffs would have to prove that they're the value to the consumers of that defective clutch and how much they diminish the value of the vehicle what evidence with the use to do that what how would they prove that ok well i think what congress usually do is they rely on things like market surveys and consumer research to determine what kind of a value individual consumers would post so they come up with a mean so is that what were lacking yes they just didn't have the evidence even though their theory may be perfectly acceptable they just never presented any evidence that the average consumer would diminish the value of the vehicle by the cost repair that clutch that's exactly right and that's exactly what you're talking about was that you have to have some analysis you have to have some consideration of it what her her criticism of boils and his involving the dirty diesel case and judge bryer there was a settlement i think it's ten point something one billion dollars and volkswagen had these dirty diesel cars some of the cars have been sold some had been sold but they for came up with a formula that basically said hey this car is not worth this much because you've got this got this defect and they came up with something some of them had not been sold so if they can do that in that case why can't you do something in a case  like this and it has to be proven but in their own model that shows no sale no post anything i know there were some posted things in the diesel case but that shows that looking at that car knowing there's a design defect it is worth less than it otherwise would be and it's worth less and some amount i don't know what it is but that's all pre use of the car right exactly exactly and for example and i believe if you look at  the the the report of the defense expert mr process you will see the kinds of factors that economists take into account in trying to come up with an answer for that question of what was the market value so as delivered so you're saying all plaintiffs really lacked was their own economists who say when a person goes to buy this vehicle they're going to if they knew that it had a faulty clutch they didn't value the vehicle for the amount they pay by them out of that clutch that's exactly right what they needed assumption may have been based on something mr boyle knew right he didn't do any analysis the question of whether there was any value that the consumer could expect at the time of purchase if he knew that down the road it might be a  malfunction so the base the basis of the decision by the do trial judge in was that i'm not going to throw out their theory i'm just going to say don't they don't have the evidence to support that theory exactly right but then what happens is the case over the case if he if but but i vanish that which you just said you're saying that he had to do an evaluation of what people would feel about something happening later on and i go back to the original theory which is not happened yet nobody's bought anything you just have a defectively designed or you got a design of a defective clutch nothing else nothing more question is how do you value that and i gather you're saying that the expert didn't indicate anything about that or did perhaps a judge misunderstand that all you could look at was post sale analyses and he didn't do that so she threw it out no i believe judge understood exactly what the model was exactly what the fall was what needed what needs to be done usually i keep coming back to mr prouse if you look at his report you'll see that the factors he talks about things like the this record demonstrates that the percentage of failures  were very very low but counsel you're going back to the post sales stuff again that's not that's not the issue it at least if i understand the thing correctly you don't ever get into an analysis of how many of these things fail all you have is a defective clutch what does that mean in and of itself i believe under the c r a and the damages model the better for the bargain model itself what you would do is you would look from the time of purchase impute the knowledge that was supposedly withheld which would include there maybe i'm a risk of malfunction here that rep malfunction may occur somewhere between you know two and five percent of the time it may be thousands of miles before it happens it may occur under warranty at which time it would be no expense to you and based on factors like those and others there cited mr process report what would be the value at the time of purchase to the consumer who is fully informed about what to expect from the group that is the market value then i thought saying was that the expert did not do the work there's no proof from the record as to how any of the people who might be faced with this proposition would have valued the car introducer all right other questions  as she did look at our theory of liability and its soon that we were going to prevail and analyzing the damages model as judge smith said if if it's true that we prove up the case that there is a common defect across all vehicles they should have to they knew that the fact that he should disclosed it but what i want to address what he just told us is that he didn't really dispute your theory of damages you just you don't have any evidence to support that well  i'm going to i'm in a way that my way into ok so so at the point of sale in under the facts of this case we have information that they should disclose that there was a design defect across all vehicles involving the clutch we have information mr schaffel for an extensive report on the on how to fix the cylinder problem engineering report on making all  the aluminum cylinder rather than composite cylinder you purchased the cylinder use the labor cost and you can replace it that cost about seven hundred dollars now at the point of sale if either you wouldn't buy the car or you would say i will take the seven hundred dollars fix the clutch if this fix is you know assures me that there's not going to be a problem with that with the clutch then that's that's the difference that's what i if what  that's what he's saying was missing was evidence of what the cow the consumer would react to the information that the clutch was defective when they went in to purchase a view that that is the information because because in our case we have an actual fix we have the information about the repair we have and here we are all we need is a reasonable all we need because it's a safety issue all we need is a c is a reasonable consumer standard we don't need we don't need a survey involving that's where we get the reasonable consumer standard that is what in a situation like this in a situation as as judge smith said if if you were if you were a reasonable consumer and you received this information that we allege saying that there was a defect a safety problem that affects all vehicles the reasonable responses what how can it be fixed ok can the trial judge and make that assumption that's reasonable consumer would react to this is yes i mean the you know is there a sense of some support for that i guess is what i'm asking what the standard the standard the standard for the th circuit is is it trace the traceable and is there a reasonable basis it's not do you have to spend one hundred thousand dollars conduct a full fledged survey to come up with something that is very obvious now there are a number of decisions from this records that have accepted exactly the calculations that we've we've alleged here judge judge parker saying in falco versus nissan sad it's the cost this is sort of make the vehicles conform to the value the plaintiffs thought they were receiving when they got when they got the car that's what we're saying we're  don't i think i think the i think the mistake is looking at post sale events so i think i think falco is very well reasoned i think in our case the cost of repair she also makes a distinction between the cost of repair and replacement part the amount to replace it that you're giving them a windfall yes in fact what we're saying is the only way to correct the defect is to use the replacement part thank you ana thank you thank you thanks to both counsel for your argument in this case the case just argued is