morning judge livingston in may it please the court i'm aimin choice on behalf of kimberly clark i intend to focus on the arguments about the class action standards deception and causation my friend mr matt sui will address the price premium related issues  article three standing i have three primary points first the court erred as a matter of law in adopting pro certification presumptions contrary to plaintiff's suggestion nothing about that was harmless second on this record the court erred by finding deception a common predominating issue even though plaintiff failed to demonstrate how reasonable consumers understand flushable and kurtz's own definition would require individualized evidence to prove nonconformance with the flushable label third the court wrongly ignored individualized inquiries on causation simply because the g b i has no reliance requirement but what the court did was erroneous lee treat reliance and causation is identical despite that the new york court of appeals has said they're not the same thing starting with the first one out of its way to distinguish causation i don't think it did said it was doing so but under under judge weinstein interpretation a case like deal would make no sense in gale the second department held that there plaintiff had pleaded a misrepresentation but it found plaintiff's claim failed because plaintiff hadn't read the argument because i have you know i have a problem with first what you say he had some thoughts and he expressed them but on the question we have held in any sure but this notion of judge one's being was was barrios is really markable i don't think it's about bias judge your point on different standards a review this court most recently in petra bra here for first let me let me offer two quick responses to your concern about about the standards issue first i think if judge weinstein had followed through and actually resolved his doubts factually he expressed doubts on deception on causation on injury over and over and over again and when you get to the opinion he doesn't resolve any of those doubts he observes that the same things are lacking on the evidence and that argument doesn't really matter if that's what he did then it doesn't matter what he said right because if that's what he did and then he hasn't i agree but but judge livingstone i think you can ignore what he said on the presumptions and and both in the presumption section in the way he came out the case he said this this case close why is out for a class wide settlement i can understand why these parties haven't settled you can't ignore that those things were in in the mix when he decide this case you can i ask you to address the argument is to a reasonable consumer so help me understand your argument about the problem with the proof as to certification it is an objective standard your honor but i don't think that means what the inquiry is going to look like to show  for which class should was created i'm here you have one statement flushable that meet any number of people you have something that no one individual is going to find the i don't disagree with your honor about the question is what does it mean to ordinary reasonable person i think it be one thing to forgive plaintiff's failure to demonstrate what it means to a reasonable person if the evidence showed that none of the definitions would require individualized proof but the problem is that the definition that plaintiff himself testified he had the one plaintiff's counsel said the consensus of consumers had the one their expert said he had for different commodity called let's trade for less money in the us markets i think that makes a different case over my time but if i could circle back to your question judge lo yeah about causation i think the real problem here  is causation and reliance often overlap but they don't always overlap and stuntmen makes that clear stutman when it's talking about why normally there is cause it should in these cases says in i think it's too that where you have a material omission that satisfies the causation requirement and what is the court site there it states affiliate you affiliated you doesn't take individualized issues off the table it just says you've got a presumption but if there's a bunch of evidence that the person excuse me that the misrepresentation in fact had nothing to do with why the purchase was made or the security was purchased they lose so to hear it would be possible in some cases to even have reliance but not causation you think about a stock case where somebody is defrauded by their broke the evidence might show broker made horrible statements  reliance on the statements they've got that far but if the evidence further reveals that not only is the person purchased that security but the person purchases let's say it's a securities market of a through z they not only purchased security a on which they were misread they purchased a through z and they just do it by rote reliance is met there but causation is not and that's the problem we have here we're not requiring reliance we're saying causation isn't met this case sets up like sergeant benevolence which your honor judge livingston wrote it sets up like the three forty nine case that the delaware supreme court dealt with in teamsters we know that even after mr kurtz determined the representation was in his view false he please the court brian mitsui on behalf of cosco as mr joyce mentioned i'm going to address injury first and then article three standing with respect to injunctive relief now with respect to injury the district court certification decision is fatally flawed for three reasons first kurtz export experts supported none of his none of his three price premium theories with evidence two of which were just mentioned in passing in a footnote second the district court just assumed that there was a price premium injury here as a matter of common sense and third the court failed to address cost and complete clerks significant expert testimony demonstrating that the method that mr ware articulate in this case would not actually work your theory is that there needed to be a finding by a preponderance that this methodology could could establish a is said by your client and others how important the fact flexibility is and so on and how much of it is a question and a very difficult question  merits of a case of actually showing that there has been a damages or of feelings that is i'm confused about what you how important it used to be or sales and that this is what the deal is of it is needed then for them to show actual damages when you come down to it and you know we all know that the problem is if you get the i think starting with the survey techniques they were only mentioned in a footnote they're not at all tailored to the case but we have here is nothing more from kurtz expert a mere promise that he will eventually come up with a model he didn't actually have a model in this case all he basically did i basically know of these techniques had done a progression for example which work in completely dissimilar circumstances and then made a promise in intention that he would be able to do that in some other case i understand this correctly i mean other cases might this might be one factor in going to whether certification is proper and not but in this case this expert is the basis for a stat establishing last injury not just damage injury and causations actually that's correct your honor this is the only evidence that curtis has with respect to those requirements and he didn't actually put forth any sort of model or evidence this court doesn't need to decide in this case what the floor is what the bare minimum is as far as an expert to actually say a class can be certified because in this case we have an absolute absence of any sort of evidence that would indicate that you could actually do this on a class wide basis in this very case all he basically did was a den of five five after bute he acknowledged that he had evidence but then he didn't actually try to apply any of that evidence experts whether the he has done a regression analysis can work but then goes through and says well maybe it might it might work but there's not enough data is that right in this case no you are he acknowledges that he has a lot of data he says it's an interest process but he doesn't actually do anything with that data that he has available one of the other experts one of the opposing experts i believe says it's not likely to work but maybe maybe an analysis under the right circumstances can work but there's not enough data so we're not saying that the donek regression could never work in any sort of case i don't think that the court would need to say that but the fact is that under cases like wal mart and this court's i p o decision there needs to be convincing proof and it certainly can't be enough that if an expert basically says there's this economic theory that i could potentially apply and i will eventually do that can't be enough to certify a class that means that cases that i can extract if i have enough data i don't think that those with the right now it dispute about the sufficiency of the data might be at another stage but i can extract the price or the premium associated with specific product actions right that's what where says he can do but he doesn't he says that that can be done because he cites journal articles for example where he looks at products like exe that have organic eggs versus regular eggs that are organic and he uses that theory to say that he could then apply that to flushable wipes now the problem with that is our experts explain which the district court never addresses there's no compared to a product here that you can compare compare flushable wipes to and so you won't know if you're saying that you can't compare on flushable to flushable is that the difference then go to the issue a bit you say that he keeps bubbling vs if there's nothing else that he can buy that doesn't have this attribute i mean that there seems to be an inconsistency you're saying that  one of his problems is a bit he keeps bugging me after he learns it is and yet if there's nothing else it he can buy it isn't it's like saying why does he keep buying organic eggs if the only ones that get well and i think that underscores some of the problems with respect to have done a progression in this case is dr martin explained when you would basically have a situation where the market would fundamentally change if you took away the flush ability representation then you can't actually do the dark regression analysis dr martin king this was a critically fod analysis not generally but that it couldn't be applied in this case that's correct have an issue even if it overlaps somewhat with the merits at the certification stage under cases like i p o and wal mart the district court needs to actually resolve that dispute now to your point judge calories as to whether or not the ability representation is a valuable attribute there needs to be some evidence to demonstrate that there would be a price premium associated with that and that it could be shown on a class wide basis and there are cases like  ending because of the effect on new york customers generally which is what the court said and i think you know i don't see how one can avoid that problem that you have to have individual standy not the whole thing of new york but my question is is this if these people had said and i'm not saying that he did if they had said we have to keep buying these and pay a higher price for what you're questioning areas because we don't know whether these people will be telling the truth for no is something of that send that back for possible of men but you see fit would be willing to you know if he amend their complaint to state something of that seward that might establish standing might not but  they wouldn't have been asked to amend because they won they were not what you say user in correct theory and i'm inclined to agree with you but what would that be appropriate no you are it wouldn't i mean first of all i don't thi but in this case with respect to dr kurtz he has provided no indication he's had ample opportunity to say whether or not he would buy forcible wipes in the future and he has been disposed of and he i'm sorry of your i just ask i was just saying he's already been deposed yes been deposed and he said that he is not buying forcible wipes there's no allegation in the complaint that would indicate that he has any indication it would certainly seem to be prejudicial for the defendants to me please the court my name is doug and i represent the plaintiffs joseph kurtz who's a consumer flushable why products advertised and sold by defendants kimberly clark in cosco the district court did not abuse it discretion in certifying to new york class actions of consisting of consumers who purchased wipes and in the we allege that wipes are in violation of the new york consumer protection laws in fact i think the opinion shows that opinion he said i have reviewed that i understand the criticisms he cited back to those specific portions of his order and then said i find that the mr  regression is sufficient to satisfy the predominant requirement of rule twenty three i think that's all that's required i mean i don't think you aptly summarized the opinion that he essentially in one part of the opinion lays out  different statement some of the expert statements to go to this question whether this analysis can be done at all and then when he comes back to it many pages later he has a lot to address and he basically says the model is sufficient for certification my concern in this case is it does seem like that here in the structure of this case this expert's testimony is essentially what is establishing the fact of injury and causation and if i'm wrong about that help me a are evidence of both causation and injury is predominately reliant upon the both the the i'm sorry the expert declaration and the rebuttal declaration of mr weir and i but i think if you wait listen did he do it perfectly and say a b c and then here are the reasons why no but he did lay out all the reasons he cross reference those reasons and i think the important here is that what you're saying you're going to be situation do we require somebody to say something like i certainly agree with what you're saying and i think that's right in that you know he certainly understood what the experts were saying did he say it in the  perfect way i think we can it's one hundred thirty page order we can go through as both of us have done and certainly nit pick and find he could've said things better you know on certainly on the pleading standards that they thought when he talked about a pleading burden you know i think disagree with me i guess my preference would be that you send it back to judge weinstein so he was there it up i think i mean i think that certainly within the realm of of what you can do i obviously think that's not necessary but that would be a preferable result to a reversal on the certification on this issue of predominance the district court did have to make a finding to a standard of proof that predominance had been shown rate and to the extent that dr weird testimony inability to do this analysis establishes causation and injury then then you really you really seem to meet and to make a determination as to whether he can actually do what he says he is going to do more than just saying and what mr weir said what he said in his first declaration would said in his rebuttal declaration and both of which the court cited and referenced is that these are all class issues i can he said i want to hear is the model i propose here is how it would work in practice here is the the thing the elements i will use to do that and then he punctuated that by saying but these are all class issues it's all based on information that has nothing to do with any individual class member so when you look at what he said and how and he rebutted that very strongly in his rebuttal declaration he said no the defense experts are in correct there's no individual inquiry here that's a theory of causation in this case comparing it to a different product that's not flushable what mr we're says he can do is he can isolate the flush ability and then assign a price value to that and that is where so if he can do that that the price premium in and of itself establishes the injury and the causation is it's related it's attributable to that representation that's what he's saying he can do so cases that  specifically addressed that in his rebuttal declaration and said i'm not doing a side by side analysis of one product first non official product he's saying i can isolate this attribute and he laid out exactly what he could do it's been accepted in other cases it's accepted in the literature that he cited you can give a value to an attribute to something which is were free nuff so that n certain attributes by the company and so on i mean it would be sales data would be david it would be company documents i think he cited in his report he could get data from amazon dot com that shows sales information and then he conducts his head on aggression and you know provides a result and if there is a price premium then that's on the merits if you cannot establish one that then we lose on the merits but the point is what financial arguing is they want the merits now they want us to show flesh body can be determined now that are better than that they say if you can't do that if the data that he would need he referred to data sets the experts on the other side said i don't think deposition and making a determination now then the k shouldn't be certified right because you know way to establish injury or causation but i think you know i think you're putting the cart before the horse i'd class or vacation all he is saying is that i have a model this is how the model would work in practice it applies class wide and therefore the class wide issues i guess this is very helpful there's a merits question if if the judge determines that this analysis can be done by an expert in a definitive answer can arise then then then there's you can use this is a method of establishing injury on a contract basis if on the other hand the data in the circumstances of this case doesn't exist if there is no ability to run their regressions because of some flaw in is one of the expert says it's critically flawed as applied to the circumstances of this case then if this is the only way you plan to show injury on a class wide basis then it would seem to me you haven't you haven't established by a preponderance that you can show injury on a class wide basis and i shouldn't think about that as one of the elements that goes into predominan commonality well i think still inherent in your question is that there's a class wide issue that has to be we don't have to prove the injury exists now mr weir has said in this declaration that the information is out there he said my iterative and that i have to run the met money multiple regressions he said but the information is available i can use it i could run this he strenuously disagreed with the fence experts that these anything is individualized here it's all based on market information sales information and that if you go back and look at what comcast you're saying this is a war between  that is not something that we have to do you know what i'm saying is that for a class certification the i would say on the ultimate merits of the case and it does will his model actually establish an injury that is the word of the experts that judge weinstein correctly said would occur later what we're saying now and what comcast as in a lot of decisions of this court following is we just have to show that his model is susceptible think that's correct and what judge weinstein said he again he may not have said it as artfully as defendants would have liked but i certainly believe if you look at the context of the opinion as a whole that he looked at the person didn't come to a conclusion didn't arrive at some conclusion even if he acknowledged it was close to a point but we're talking about upon us which is fifty one percent i mean i think that's correct in that he didn't reach a conclusion an arrest could you address the injunction issue sure i think when you have to look at what the law requires and what the fence are saying that you if you accept what they say is the standard under article three a consumer could never obtain an injunction a no no no no no no no i don't believe i mean they may be argue but that's an argument that i have problems with that somebody who is going to buy something and because if they know now that any time in the future they will not be they don't have a standing bet goes too far but the argument to take it they are making is viewed this consumer has no intention of buying in the future if this consumer had an intention of buying in the future this consumer could say that he granted standing up a basis of generalized harm to new york and that that is not enough for article three standing and when i asked but couldn't they then  stated quite clearly that he had no intention whatever of boeing so mike my question is in that context we're just standing not on their theory we can ok i think i understand what you're saying and i would is there's no magic words in the complaint or in his deposition testimony where he says i will continue to buy but i think what point that the fans have made over and over again is even after he filed  you agree that i think i think the coach is very broad as you say i think a distinguishing factor in that case that is not present in this case is the fact that they took the products there off the market so there was no need  for beyond that yes and then you said well there's no allegation in the complaint that hill ever buy anything off how masonic get well i think the conduct here shows that he does want to continue to buy these process he never said that and i  don't believe in going through his testimony he ever firmly said i will never buy these i think that's an assumption that is not the basis on which what this record found standing for i think he he did not know you are correct that he didn't do that so if it requires us to go back and add the magic words i think we're certainly able to do that literally i'm sorry i mean now we're still at the class i mean listen this case has been around a very long time but we're still only at the class survey cation stage and i think that certainly something that if that's the issue to me he certainly intends to buy these products again he just doesn't believe he can rely on the representation which brings us to what we say  is you know is the is the standard in this case but if you look at the davidson case at the ninth circuit which involved the same plaint the same defendant the same flushable wipe and the ninth circuit came up with a two prong use something that we have to find exists exactly in a general statement about harm to people all over we have held any number of times is not enough to come for vet standing so w thank you your honor i'd like to just turn back to injury briefly i think that what we have here with mr ware is a promise to do something not actually any sort of attempt to do something and i think that's important when we look at the context classifications in general because if it can be such that an expert really only needs to go in and say there is this mathematical technique and then not actually apply to the facts of the case and then that's enough to say that there are common issues that premium injury that's the problem here just because consumers would buy something because they like that attribute doesn't mean that they paid a price premium for that question the question before us is if there is all of is something that sells then is it in that context enough in that particular context to have an expert who says i will be able to show to you that there is a price for us is vet that's  question that if there weren't any indication of the answer then somebody saying i may be able in the future to say something might look like something that he might conceivably look different in a context where most people would say yeah well that's what's going on but can reach people prove something and the guy says yeah but again you are that's not actually evidence it's a mere assumption now we have products that are out there like  case you had white cigarettes in full flavored cigarettes in the white was a valuable attribute and yet those cigarettes were always priced the same you know diet coke in regular auckland case turned a question of represent of  reliance and so we're back to the difference between are learning instant causation and maclaughlin went specifically on reliance and that's not an issue here causation is an issue and and they are separate but wh very focused on causation but what i'm showing though your honor is that just because there's an attribute that maybe drive the market such as coke in diet coke you have a diet label that drives the market but diet coke is always priced the say same as regular coke you can't just assume that there's a price premium in the case and if you did then that means plaintiff would be better off in cases like comcast and mclaughlin in all these cases not actually having their expert do any of the work to show that could be tailored to the case because that's would get them in trouble something about the consumer survey or the absence of a consumer to consumer survey just say in the context of the new york class action where the survey showed that certainly would be some evidence i as a doctor you've gone and dr martin explained the problem with consumer surveys as they just measure consumer preference they're not actually tethered to the supply side and so the fact that a consumer might be willing to pay more doesn't actually indicate whether or not the manufacturer would actually be charging more like the token diet coke they want to sell more soda so they don't actually charge on the procter and gamble finds out the consumers are prepared to pay more they wouldn't charge more they may be able to sell less of the product if they actually charge more and so they may be better off actually charging less then whatever alternative products might be there and that's what dr martin said that there were times when you looked at baby wipes versus flushable wipes baby wipes were chart would cost more even if they didn't have any sort of flush ability representation that's why this case is really about a failure of proof on the part of the expert you're economics is