please the court my name is rebecca bacon i represent the appellant there i would like reserve three minutes for a bottle review under hydrogen peroxide mr career i had to prove each of the requirements of rule talked about it as an implicit requirement as a prerequisite so it didn't talk about it as within predominance or within but now and then but i met with and defining the planet has to define a class correct so is this part of that definition class action here the problem isn't ascertain ability can relate to two things one a problem of definition where the definition is subjective we would say that this is not a problem of the definition per se other than as the court found i believe in exam year versus philip morris you can have an object of class there the class definition sure but this is this is a very unusual form of action that derives and definition and that would be twenty three c one yes it is yes it is under definition my only point is that it's doesn't have the definition of problem of it being a subjective problem here but it's definitional in that we have a it's one of the it's one of the argument of but but we got a text under a rule those are the questions we have and in fact under the constitution wouldn't shouldn't we not even touch that issue unless we can determine the resolution of this case the texel well from the text of the rule yes the class has to be defined and here the class is not defined in such a way that there knows who the individuals are or that even the planes of some cells might know who went  there is some way to determine eventually who the individuals are so you don't have to say it's mr x mr y but you have to find some you have to have some showing of proof that shows really am wrong with the way that this case is decided i mean it's not like m superiority but that you are not absolved of the requirements of rule twenty three just because the dollar amount per individual might be love so under the jurisprudence there is no there's no support for it but also this case there may be other cases where proof was brought i can tell you in thirty seconds the proof you're the proof here was mr chris testimony which was unreliable and f t c settlement in a different case involving a different product and then also with reasonable probability the in fact would purchase was that product or some other possible product of beer now see on the packaging he did not testify with anything close to reasonable certainty that  as the planes have stated that he purchased weights are in a pumpkin need packaged it was never manufactured or marketed in orange packaged he testified i mean it's a curiosity to me why there's so many people out there who purchased this product we would have as a class representative someone who had such a slim knowledge of product and such questionable associations with it well and that's why that it comes back again which is in this case they did not prove the plaintiffs did not prove by a preponderance of the evidence that in this case affidavits are reliable or in this case you can bypass fares rights because it's a small dollar claim and i would know that they had a different plaintiff diane grey who dropped out as soon as she found out that her deposition was going to be taken so there is a problem with the class representatives in this case and this is the fifth there was in the eastern district of arkansas the judge already in thompson your opponent is going to say if we can't win from it's we want to remain and i think they've said somewhere that by her as record somewhere they know how many units or weight of weights mar million dollars worth of yes there are there are there are records but again even if you can say ok we sold this much in florida we don't know who to give that to so if you have a million people that come forth with affidavits a fraction it's we have no idea how to his experience based on his experience that he's not the one he's not the gatekeeper for all twenty three like the district court and the square and that is the problem with relying on a claims administrator who has also a financial interest in this case i would also say that this ascertain ability goes to the requirements of rule twenty three and under hydrogen peroxide they can't give you assurances that later down the road will figure it out that's been deemed to be insufficient and that's the language of rule twenty three i would also know this court's discussion end marcus versus b m w talking about reliable and administratively feasible means to identify the class members and nothing in the record shows you anything that's either reliable and certifying a class that consists of a single state under a single state's law and before getting to ascertain ability which is the issue that has been raised in this appeal i'd like to put it in context a little bit if i could first the state law and this is what the district court talked about is the florida deceptive trade practices act which does not require are a showing of our lives so the individualized questions like those addressed in the arkansas opinion are irrelevant and you know that not only from the court florida intermediate the court opinions but you also know it from the eleventh circuit fifth patrick decision in an order for you to rule in favor of the appellant's here you have to determine that the eleventh circuit was wrong in fitzpatrick in create a circuit split the eleventh circuit of course the circuit that's over the state of florida interestingly interpret in the florida law the second thing is that based on the the facts that are alleged here they violated the act that can't be raised in this case so now you get down to how are we going to prove damages i think one of you asked that question well if you look in the record it pages twenty two ninety three through ninety seven we talk about that exactly we say under the circumstances the point of classes and title to a full refund if that's true it's fourteen million three hundred seventy dollars four hundred forty four dollars and forty two cents they say by contrast and they argued this one way the they won in a discovery dispute not to have to produce discovery that they should get some credit and there should be a price for you when you compare the the price of this product the way smart product which they say is so wonderful and does these wonderful things with the one today brand vitamins and if you do that if you follow the methodology that they argued to the court then the damages in florida are eight million five hundred forty eight thousand five dollars and twenty cents we submitted that in the record that's that's presented and that's those would be the damages now who i mean the class definition is a definition of of all persons who purchased this this product the multi vitamin call one of a weights martin this is a far that's simple we've stipulated with them to a notice program that is a publication notice and people will get that now is everybody's memory perfect and whether they bought this product or not no we disagree with what they said about the name products he was not able he did not testify to the difference about them your honor i don't think he was clearly asked about the difference in the differences but i don't think any of that matters in this appeal that's not the issue that's been raised in th let me ask you straight out why do you believe that loyalty rewards programs meaning records that will help you ascertain well folks who purchased it i mean to take point out there's really nothing in the record about that  it really doesn't matter at this point in the case whether you can a den of five specific class members and why doesn't it matter of just going through the damages in if it if the if the the jury in the end says yes there's liability and the jury in the end says yes there's damages either under our theory of the fourteen million are under their theory of eight million then that's the damages and that's all the damages that  and if one hundred people show up to fall kline's then those hundred people will get the money under the description if one hundred thousand show up in his oversubscribed then you get into the things mr president said how its handle and thats it bayer doesn't have any interest in that procedure they don't pay any extra money as a result of that procedure they are over and done now where does ascertain ability coming in all this and of course the people or ascertained is there follow their clients at the end and the cases only say they have to be ascertained at some point not before certification what is your what what will be your proof try our prove  trial your honor will be exactly what we say out of the class representative will testify their marketing will come in and the jury will determine whether they violated the florida law since the florida law specifically does not require our individual reliance we don't have to come in with individual testimony from individual class members that's well established both in florida and by the eleventh circuit in fitzpatrick and we we present the amount of damages that have been discussing  it they don't need to present proof that they purchased at trial at trial at trial they do not to ultimately recover they will have to come in and submit prove what what if this were an individual it's really that simple and if there were one hundred individuals joining with each one of the hundred have to come in not under the florida statute your honor because there's no requirement of showing individual  by not i'm not talking about reminds i think he said oh yeah that was that you have to show that prove that you actually purchase we would have to show purchases whether we would have to do that by individual testimony or not is another question we might do it another way isn't that the question well your honor no it's not the question because we know from the records they've produced we know that debt that they are in florida sold fourteen million dollars and change the number i gave you that amount of this product in four we know that we know that if you compare the price to one a day vitamins and you come up with the eight million dollars excess figure that we talked about we know that and so if that is the if there is liability and if that is that is the damages that the jury except you don't have to show any more than that in terms of the the a mouth that's due to the certified class then the next question down the road is the allocation question and that's where evidence gets to it so that's what you that's what you've got in terms of let's what about a name class made a purchase several personal and that that and they would be they would be a class and they would they would be a class member if you think you should sin this not clearly defined what the claims are that are being certified i think you can but i think it is very obvious that the claim that is certified is the claim that said in the second paragraph of the certification of water under the florida deceptive and unfair trade practices act those are not personal injury claims the claim that is then released is anybody that bought a and he bought this product in florida if if later own they come back and seek to to bring us climb for the purchase of this product under that act it is bart if they did not go out of this class just like the standards that are set out in that paragraph and marcus that your concern within what the class definition says this class definition is objective it does define it you've never said and no appellate court has ever said that that a class you have to have objective documentation for a class you have the standard in there this read into it remember acid rain ability is nowhere in the text of rule twenty three but what's read into it is the definition has to be a definition the subject of an understandable and this needs that the main case that talks about that i think is the second circuit's i p o decision where the class was one where people had had people who paid undisclosed commissions well that doesn't help you if you define a class of people that paid undisclosed commissions because if there undisclosed they don't know what here means of course people's memories are going to be perfect but people know if they bought this product or not and if they did they can file a claim and recover if plaintiffs are successful and if they did they're back home by the judgement if they don't opt out all the standards of morris are satisfied so is there any way to contest for cla make sure that they're not who puts the make sure but remember also this is not a case like marcus where if there is an additional claimant who falls within the class the defendant then owes more money this is a case where the amount that indeed the person making the claim in the purchased product well that isn't that correct that that was an issue in markets and it was relevant high third time in my correct that that that that was correct and marcus yes or i'm sorry i thought i had said it and i was trying to than explain it after a i meant to answer your question specifically the reason it was an issue in marcus is that neither the plaintiffs they are nor the defendants could say what was the extent of the sales of the top of the cars with the tars that would never go flat the defendant didn't know the plaintiff didn't know and that point was made quoting from the oral argument in markets so that if the plaintiffs come forward with one more it's not like this where they could come before you on the top word and say these are the damages and this is the amount of money just do it would mean if one more class member came forward there would be more damages from that class  that case a significant amount that's in that that's a different issue from one of these i think jobs well i think it's the same issue in terms of whether the defendant has an interest in this argument i think i i think it is an answer to that question in terms of the other question whether there is an adequate procedure to have done a fox class numbers at the end of the case whether in the past members were left out or people were put in maybe reducing the total amount of coverage of recovery if that were to happen that's many bridges down the river we haven't gotten that we don't have that procedure established yet you don't have a determination by the trial court to determine whether that was an abuse of discretion or not so these these it's it is your position that these claims processing techniques are used in honor there there are there are very few litigation classes where there are claims processing techniques number one and i don't know i don't know that many there i understand the settlement class because the defendant is said ok we're live or we're going to pay out these techniques can be helpful to try to figure out to do some good rough justice administrators of numerous states and and the procedure happened much the same as i'm striving there's a specific decision in that about how the fact that exxon wants its total law bill it was determined really didn't have a a dog in the hot in terms of of what the recovery was or did or was not from individual class members that was a separate procedure there have also been procedures following title seven implements criminalisation cases at that point in those days called states to proceedings there's been a host of different ways that those have been handled those dukes that they've been cases there have not been any to my knowledge those dupes all of them  would first like to address fitzpatrick mr wiley stated that if you reverse the certification in this case that you would then create a circuit split with the eleventh circuit because if it's patrick that's just not the case fitzpatrick didn't deal with ascertain ability fitzpatrick dealt with whether or not the duck had a reliance requirement and in that case again it is pretty dupes pre con has in that court that in that case that court again relied on clay versus humana and we would say that it's patrick is an opposite when it comes to the question before this court as to whether or not the plaintiff has to prove by preponderance of the evidence that the class is identifiable mr whitely said that they know if they bought the product or not that is just again not the case mr career at didn't know whether he bought the product in fact i will respectfully correct mr whitely but at page two eight five four of the appendix mr career a said that he did not take weight smart advanced but when asked whether waste part advance which was the next iteration of this vitamin whether it was in the case he said he didn't know  so we would be facing a problem not only of whether people remembered vitamins they purchased and took between two thousand and four and two thousand and eight because we have a statute of limitation problem but also whether or not they took weight smart advanced or healthy metabolism and if you look at eleven eighty five and eleven eighty eight of the appendix you see pictures of those vitamins and they all look very similar and the court in re p p a and the court and present versus metabolife both showed the problems with different formulations and when you have knocked off rounds which is the problem in this case one other point relating to mr whitely and the plaintiff's claim that well you can prove it and we disagree with their proven damages but that is not something before this court that if you can prove that they are sold eight million dollars worth of wheat smart in florida therefore there is no problem for bear or for the pla but you do have a problem because if you have a million people show a lot how do you determine whose claims are valid and then you have a problem of class numbers who might have valid claims and there's no way to determine and again there is nothing in the record to show that claims processing such as the type used by mr krugman are reliable if after a deposition a seven hour deposition in which mr career was given every opportunity to tell us everything he did could tell us about the purchases if after that it wasn't reliable how are we supposed to rely or unnamed class member supposed to rely on i'm contested affidavit such as those used by mr and he didn't indicate the type of fraud prevention mechanisms he would use that could do better than a seven hour deposition such as the one the mr career underway we would also argue that in this case what plaintiffs are trying to do is again to have you certify a class and then just figure out how trial will be managed later and that goes against the findings and this court's ruling marcus you know what is your response to the respectfully actually i don't my response is just that there is other case law that goes the other way that there is nothing in this court that says that based on the plaintiffs say so you can just certify a class and that the class is ascertainable and there is no evidence here even by mr president again we would say that it is  of law that the district court relied on the surprise it's been because under rule thirty seven c one he was late disclose they disclosed him first in their reply brief when they addressed ascertain ability for the first time in response to our arguments