in short we contend that the district court and or erred in granting classification by failing to conduct the rigorous analysis was required by the wal mart decision by those in the supreme court that this or tort fail to consider a host of unique defense s going to typicality adequacy and commonality the district court conducted no predominance analysis and equally important the court accepted what we view as an equally or fatally incomplete ascertain that we should weigh in your brief or use that we've already decided the issue i think which is yeah i don't think in respect i think now that we've also seen our counterparts brief i don't think it's  issue's been as clearly decided maybe it hasn't even been decided here's what i mean by that word neither side's proof convinced you that you know no no the other side previewed as such that our point wasn't as clear as it should have been and here is what i mean by that we do not fully feasible means of identifying class members i thought you were using that affidavits would not be sufficient in this case they're not sufficient we are not seeking a global rule that affidavits are never sufficient can you explain the legal rule you're arguing for that you think will clarify the law such that rule twenty three of appeal is appropriate our view is is that the seventh circuit should hold that after class certification stage a pla needs to show more than nothing which is what they've done here to show that a class or identifying a class can be administratively feasible in other words that there is an administrative leave feasible means of identifying class members and what the plaintiffs say is that that they don't need to do that if it all until after a judgment has been entered against us we say that that needs to be done now now there's a distinction between identifying class members by name and setting forth a plan at the district court that says at least how they're going to do it and their own case what's what's wrong with just notice  process with an affidavit under oath i bought it about this quantity this approximately this time well what they i'm not even sure that that's what they say they're going to do here i mean the problem is  in this case it's not a multi well what mr other in this is sounding like the moving target or a bait and switch appeal so let's try to go back to your original reasons for persuading us to hear this appeal and tell me what you think we ought to decide told us what you think we ought to decide the issue the issue the rule that we want to have established in this circuit is that a plaintiff on emotion for class certification and to have a class certified must show administratively feasible means of identifying class members here they haven't done that they say they don't need to do it in their brief that they filed in may they say the identification of class members including by affidavit is not a rule twenty three consideration we say it is we say that the district court level they needed to put forth a plan not give notice but a plan to show that if a class is certified and if this case were to proceed past the class certification stage that they would be able to employ and it ministry of lee feasible means of identifying class members and their own cases say that they're outside their all outside seven circuit but their that there would have been some administratively feasible requirement at the classification stage but the discussion was think no requirements were set forth in other words there wasn't anything that said what what must be shown whether must be shown the issue of when and of identifying class members by name that wasn't decided in that case so we don't think that the act that case goes our way we think it supports the idea that there is an administrative leave feasible requirement at the class certification the class definition is all individuals who purchased in supplies for personal use during the class period and the court certified a multi state class and i believe they support the ten or twelve states where the class members would  so that's the objective requirement right that's that is the them fulfilling the requirement that there must be an objective criteria to identify class members we say that's distinct  although related to setting forth an administratively feasible means of identifying class members and if the seventh circuit had decided that issue clearly then they would have come forward with administratively feasible means of identifying class members and they wonder why does it make if a district judge believes that this is a problem that is solvable and obviously there are hundreds of different ways and many class actions to solve the problem of the identifying class members of eventually why does the district judge have to commit at the time of certification to a particular point i don't think the district court has to can necessarily commit to a particular plan i think the district court has to be comfortable that if this gets past the certification stage that there is a plan in place that there is a way to weed out fraudulent claims that there are ways that if this case goes through trial that there that that class counsel has a plan in place that can be  now there might be twists and turns along the way something a trial might happen some state some claims may fall out i mean it's impossible to predict exactly what's going to happen through trial but you don't believe there's any way to to to determine what the class members are while this is retail a lot of these purchases are at retail according to them most class members didn't keep receipts there's thirteen other products they charge that they had i mean their number ways they can prove that they bought it other than just a receipt well they haven't set forth how they could do it and order whether to certify the action as a class action that's twenty three c one it and so our view is if the court is going to enter such an order it should consider the relevant all the relevant factors under rule twenty three not part of the now part of the later because then when the weird situation of having to go through a trial suffer a judgment putting that on our books alerting you know it's a material adverse consequence so there's accounting issues with respect to that and then finding out at that stage after that's happened that ok now it's not administrative we f products they purchased because there's three different insta flex products you're asking them to discern between the insta flex products on the one hand and the thirteen others which were sold at retail on the other and you have the whole issue of did they purchase it in the first place the other issue is so should you want to cross examine well i don't know about cross examine but certainly their individual eyes hearings would be required to turn whether or not they purchased it ok we've we've always had individual loued least the class action was always allowed for individual eyes damages determinations right sure why would this be any more burdensome because because the means of crossing them anyway i'm not really were they get your memory test a point what you're saying is what you're saying is that the stakes are so on individual grounds that we should simply effectively prohibit this class right you know i think what we're saying is is because actually we think the opposite we think because the states the stakes are so high for us because if a class is certified and there's a judgement or against us nothing else it puts the company out of business saying because the stakes are so high that something more is required than asking a consumer did you purchase it in this state during this time period at this price from this store what the stakes are obviously high for you  were in claim in class action and practice with these retail low dollar class products what is a typical  risk claims rate i mean higher than five percent yes five to ten maybe a max we see settlements where it's one percent right that's not uncommon and you seem to be terribly concerned about the danger that there might be in those in that tiny fraction of people who actually respond to a class notice or settlement or judgment or claims process and that there might be a small  fraction who would submit mistaken trains and what concerns me is that with the with that approach of the third circuit's approach you know essence you're you're making a focus on perfection you know accurate claims to defeat the larger goals of deterrence and compensation where there is in fact a viable claim i think i don't think we're going that far i think what we're saying is is in this case given that we have kno it the affidavit is how you're going to identify who should be submitting and they should be identifying some plan to identify who should be submitting them what it's going to say and how in the how we're going to make sure because it's not just this this reliance on one affidavit to prove a claim and i am aware of only one sort of case where the sworn testimony of one witness is about a fact within his or her personal knowledge is not enough to prove the case and that's under article three section three of the constitution treason against the united states requires two witnesses to the same overt act as far as i know any other wrongdoing up to and including first degree murder can be proved by one witness's testimony right are there other except with the exception you're aware of i'm not aware of any other exceptions except that in this case it's more about it's not just the affidavit issue it's about making sure that the right people are submitting them and that it has they set forth a plan to do that that's what will twenty three requires  it's not it's not just submitting an affidavit hoping everything works out for the best it's making sure that these are the right people and they have a plan to get those right people now is the time to do it and they did so notice by publication what's wrong with they haven't they haven't put forth a nose notice plan b if you take a look at their own cases the java juice case the reason why that court was ok with it was because they put forth a quote detailed no plan for notice prepared by commission media notice expert and take in the java juice case which they rely on compared that case with the other case which is well they don't mention this one explicitly but this is the this is the one we think would apply here quote this distinguishes this case from those in which play is provided no plan to ascertain class membership they provided no plan they have to provide a plan did you keep a record of the number of medicaid the same model was produced and how they were sold that is by through the mail or through generally yes email or retail generally yes we know we know how much we sold wholesale so we can assume that there's one retail and i see them out of time so if you give you more we'll give you more time so you you have a record of how the the product w through to wholesalers what percentage so we could probably do that and if we did do that than it would be on them to come forward and they should have been with the plane in order for us to get this thing going rather than figuring it out later it's a timing issue we'll give you a couple more minutes and thank your hon first off i don't think there is a term ascertain ability that necessarily exists in rule twenty three i think the courts have dealt with the concept of what some people call ascertain ability and that is whether or not the class definition is such that membership is objectively the term and in here the class definition clearly sets forth on means by which there is an object period the class period that's an object of the terminations of course when it comes to the claims process that's going to have to be submitted you know the determination of who actually purchased the product we'll have to be determined probably by a claims process or by affidavit but in terms of who was de freitas for instance in this case we know the amount of bottles that were sold we have alleged that we will prove that each bottle sold was a worthless product so we have an object of determination of r did at all and you also learn the number sold and by what means they were sold we have a reasonable estimate of that based upon documents that they produced to us this this company i mean i i sales are due made directly by the company so most class members email addresses and mailing addresses in this case will likely be available to the defendant when we send out a notice to us for the no we have not because obviously we wanted to make sure that our class a certified and then when the class is affirmed which is the normal course of events we will then implement a notice plan in which we will seek to provide direct notice of those people who are identifiable and mail notice to the inmate not mail but you do indicate you do believe that there is a high percentage of the total sales oh i think so i think it's over fifty percent do we have that anywhere in our record you don't have it in your record because  we did not believe that that was a relevant consideration for the rule twenty three determination and i was only providing it to you as an aside here and we didn't but is it before the district court no it was produced in discovery we did not argue it in the district court so i that's why i'm just pointing it out as a practical matter but discovery part of the record is yes yes it is yes i mean i don't know i know that  deposition is part of the record here i am not sure whether or not he gave this with an advance or of about what percentage of their sales were we will say on line or direct from the company but that might be a place wh on the record but quite honestly to us as a matter of law the question is one of after the judgment is entered then people can self identify believe this court has touched on that issue in the what do you call the suits in that case i think it is where i believe it was judge would you know said to you can you can you at the claims process people can self identify and  t that they have relied on representations that issue in this case i submit everybody would have been injured if we prove our case because there's no other reason to purchase this product except for joint health and if our expert is believed by the fact finder here which will be judged in our goal and he finds that the product is worthless then i think every purchase will be will have been proven to be  worthless and therefore everybody will be entitled if you will and yes what do you believe it would have been an abuse of the descriptive discretion for the district judge to deny class certification on this basis on the basis of ascertain ability yes i think it would have been yes because i think it would have an heiress a matter of law well rule b three we're talking here only about ruby three classes right twenty three b three classes you don't need to do ascertain ability for b you want to be two d and you know i haven't b three does talk about superiority of class action device and that's a pretty broad it certainly gives you a textual a district judge it seems to me a textual basis for saying can we actually manage this  and i guess i see ascertain ability as one dimension of manageability and i could see where where you're going but if i'm not sure i'm going further than that i'm just saying that i'd if you if there's a lot of third circuit is written about this implied requirement and so on but i'd be the district judge has to be able to manage the process i had i had read that every district judge has the discretion determined manageability but if and of course i haven't thought this through but to me it seems to me that if the basis in a small claim a large aggregate case is that people are not going to be allowed to self identify themselves i have i have a very strong conviction that i think that's wrong as a matter of law  strong but yes i was about to give it to your honor the reason to require more than sight self identification appears at least if one reads career or that the basis is the defendant shouldn't have to pay more than they are responsible to pay for putting aside let's assume there's one hundred percent claims rate here ok which is of course we know as a reality doesn't happen but for argument purposes let's assume it's  hundred percent claims right and let's assume that some percentage of that claims those claims are fraudulent well if you're going to require more than self identification say by af by claim form and therefore deny classification because you deem that to be unmanageable then there then there is the precedent that frankly small claim large aggregate cases are not viable and as this court has said it infuses the core of the small claim and said i think in such an act two small claim large aggregate cases are the reason to do class actions they're the most is the most important type of case to certify if we are going to allow judges to deny class certification based upon a manageability concern surrounding self identification it allows these cases to be obliterated based upon that point and that's and that's grounded in the policy of the turns and cop compensation which is at the crux of each of these statutes it's deterrence and compensation so if we're going to throw in a loud district judges to have the discretion to throw out a case because they decide that self identification is unmanageable then administrator there are very experienced and claims in this tracing they could give you a plan of administration i'm sure it's pretty much by rote but if that were really a requirement i'm sure it would be easily met because they do this they have expert it is that what you say well if and if you articulate a rule which requires us to articulate a claims in a straight in plan as part of our proving manageability then yes that's what we would do or to put because why it inclusion in the heart of the class action well as far as i'm concerned if you owe again small claims large aggregate cases i understand  i went back to the original petition said about ascertain ability here that the question presented is can ascertain ability be determined based solely on untested evidence from purported class members that was the question that frankly persuaded me those this was worth hearing on an interlocutory basis what's happened here is that there's been a considerable shift in position it seems to me on the defendant side and the focus has become one on timing and i think if i understood this discussion correctly a district judge could decide at the school of certification stage  want to hear this plan for manageability and asin in identifying class members and i want to hear it now because i'm skeptical about whether you can do it in a district judge would have the discretion to do that i  think on the other hand a district judge could also say look i've seen a lot of retail class actions before we know how to solve these problems will so worry about this later i would think a district judge has got discretion to do that too neither of those questions is really what was presented in the petition which has to do with this affidavit probably these untested evidence from reporting class members but i would you agree that this question about timing could be left to district judge issues but that that is a matter of law you shouldn't deny class based upon that because it can be determined at a later date during the claims process of course the court didn't use the word ascertain ability did it but to me implicit in that is the concept that these types of issues self identification whether it's going to be by after david whether this could be by claims form is something that should be left to a later date after the class has been certified and that would be during the claims process just so just so you understand from our perspective what would happen in a trial is you would get a judgment for the aggregate amount of damages that were tainted with the fraud and then that amount would be made available for class members to claim so at that point in time you would have a claims process and that's where fraudulent claims could be weeded out that's where the administrator could do without as necessary i would you weed out fraudulent claims  well i've been through the claims process and i've seen claims administrator as they have they have software programs that can detect obviously you can't have a software program that the text that somebody says in an affidavit i bought ok but let's assume if work we have to make some assumptions about human nature is the majority of people who are going to file go through the process of filing those affidavi we're going to assume that they're all going to perjure themselves and why i don't do that i believe that there will be people who do oh you're facing human issues touching well i think we have to court has as has as at least lean that way is that again the process is a trial and then a judgment is entered for the fraud that was committed and then there's a claims processed how much that but the defendant has been found liable for that amount of money so the question becomes do we throw the baby out with the bathwater do we let this defendant go scot free and not pay a single dime because we may have some people in that claims process who file fraudulent claims i don't think that's inherent i think that's contrary to the policy ok and as you indicated you've got at least fifty percent that you know requirement do you know whether any other circuits have recently rejected that explicitly no i think this is quite frankly a what i do know it was like this circuit for a while the so i think the original question in our petition still is the question and and the question is is can ascertain ability be determined soley on untested evidence from purported class members here that's the only thing they've offered what we're saying is you need something more than that in this case what he needed to show because he said it was very easy it's done in the sound the process all the time is how we're going to get the affidavit from the people what they're going to say how we're going to weed out progeny claims just general and if you look at their own cases for chill up and just have three lily versus java juice and alan versus symbol lace and all their cases that's what they did it and that doesn't have history class actions that makes them that makes the plaintiff's counsel do their job and that's what twenty twenty seconds it says you have to do it now if there's good and to the agree that there's any question that over the next says a district judge needs to decide under your this is we're talking about b three classes yes ok so so you can do it under the guise of under the umbrella of superiority if you want to textual basis instead of having to make up a new requirement right so why isn't that within the district court judge's discretion to decide one a says that the decision on class certification has to be done quote at an early practicable time after a person sues or is it so we're not saying it has to be done with the complaint i guess what we're saying is it has to be done before trial if you're going to rely solely on briefly it in terms of you know manageability if it was so easy then we're not sure why they didn't do it this idea that more than fifty percent of people are ascertainable right down to five will that might be true might not be true but i can tell you that that was not something that was argued or certainly wasn't in the district court's order if that were true wouldn't it be pretty important or be important because miles that they're quite in order through the internet so we have a class action so to the degree that the court finds that that's an ascertainable group of people the plaintiff is not because he purchased with cash no so what so what volume of your purchases were in sales were direct rebuttal i can't i don't want to even hazard a guess because i really don't know i wasn't prepared to answer that today was wasn't an issue that was argued below it was in the record they i'll take your word for it i don't know that because it wasn't i don't know what all went into the record it was not an issue that was that was vetted any where near extensively at the district court level would you agree that if you if that's true this would be a pretty manageable class you might have subclass you might have a subclass but then the plaintiff one fall into that su because he purchased it retail cash no proof of receipt no proof a transaction yes you have proof that he used it yet he doesn't have proof that he needed either to testify that he took in the he testified that he took it then why isn't that good enough while in this case we don't think that he even needed to take it in other words it wouldn't work for him because he went to his doctor appt right before he purchased the product and according to his own medical records he didn't have any joint pain is must post will check was passed the purchase this first product called joint juice that apparently didn't work so he purchased this one anyway and the only time if he felt this joint pain apparently was when he was working out i mean that's that doesn't even seem to be the purpose of the product their own expert well be encouraging proof flexibility an increased mobility sure and then their expert says that that claim is plaintiff's expert says that that claim is false because according to the focus group or the people that were in the studies that he identified they all had