defendants respectfully submit that the district court committed three errors when it certified eight classes challenging how ten different defendants design and sell thirty three distinct prescription glaucoma drugs first the district court was  enter its order because the plaintiffs lack article three standing second the district court failed to undertake a rigorous analysis of the classification records before certifying the classes third the district court adopted a class white damages model that is at v the standards set by the supreme court in the contest case beginning with the issue of standing last year the supreme court in spokeo reconfirmed the fact that the injury in fact element of standing includes a separate and distinct concreteness component which concreteness means the injury must be defacto that is it must actually exist here the plaintiffs are readily acknowledge that they received safe effective f d a approved prescription drugs that worked exactly the way they were supposed to for years or decades they're not alleging they were deceived they're not alleging that they got anything other than what they pay for what they are claiming is that they are suffering what they're now calling a pocket book injury in retrospect because they claim that they were forced to waste product but the way they get to that conclusion is fictitious what the plaintiffs are doing is comparing the actual products of the commercially available products that they purchased on the market two hypothetical products that are not on the market there's nothing concrete to it there's nothing real there's nothing actual here what the plaintiffs are essentially saying is any time a consumer can conceive of a hypothetical alternative design for a product on the market that they claim would have been more efficient or better they've suffered an injury in the form of waste that allows them to go into federal court that can't possibly be the case it create opens the gates to all manner of lawsuits and as the supreme court noted in lieu hyundai gets ago standing is not supposed to be an ingenious academic exercise in the conceivable that's exactly what plaintiffs are proposing any conceivable product design could give rise to a federal lawsuit what plaintiffs say about this is well that's ok standing is a low standard let these cases into load on the federal judiciary at the courthouse gates don't do much good if they're always left open they have to be closed to some claims and in this case they should be closed to the plaintiff's claims because their injury is fictitious now turning my attention to the district court's class certification analysis we've identified a number of problems with the district courts analysis on the individual rule twenty three elements but the problems boil down to the same problem in multiple variations which is that this report simply did not undertake anything resembling a rigorous analysis of the classification record it acknowledged that there was competing testimony competing reports competing opinions and then it said it's not the role of the court to evaluate that evidence of the class certification stage kicked it out of the merits phase and said we'll let the finder of fact decide respectfully that is in no way consistent with the precedent of the soup frame court and with the president of this court the defendants built respectively a compelling record against certification in case including most notably the opinions and reports of five experts challenging the very underpinnings of plaintiff's classification theory these reports came in uncontested uncontested the plaintiffs did not take the depositions of these experts they issued no rebuttal reports they did not challenge the opinions or conclusions of these experts in any way not just in a meaningful way in any way what they said instead is that's all right they gambled on a tactic that this court has repeatedly disproved they said that it's enough if we're stating our intention to try this case using common evidence and a single methodology and so long as we intend to do so and we proffer the reports of putatively competent experts that show how we plan to do so that's enough to get past rule twenty three and then everything else moves over to the merits and they say that's ok because if they're not able to meet there if they're not able to do what they said they're going to do through their experts and through their intended class why proof then they'll lose and therefore the case goes away if they lose it's the one plaintiff they lose to all plaintiffs and that's their with the proposed resolution of the case if that well that's of course true of all class actions in a case where you can't prove your class  proof you lose on the merits but that doesn't mean you get to skip the classification stage exactly and in fact in the park overseas shell oil case this course rejected exactly what plaintiffs are proposing to do in this case it said it's not enough to say that you intend to rely on common evidence and a single methodology intenser just hoax if there are disputes that bear on issues vital to class certification it is the obligation of the district court to receive evidence and resolve those disputes before moving the case forward likewise in the west versus prudential case the court made clear that hiring competent experts is not enough that would be delegating judicial power to the plaintiffs by allowing them to get a class certified simply by hiring the right expert you can't duck hard questions you have to resolve the clashes of the experts at the class certification stage to the extent that question bears on issues vital to class certification do you really want to do or do you want us to do that mark your honor the record is complete the plaintiffs had their opportunity to make their record the district court had a chance to evaluate it we would respectfully submit the court can just decide this issue the record is full here and when you look at the expert reports that came in uncontested from defendant experts there is no path to class certification here i would respectfully direct the court's attention in particular to three reports the report of dr bartlett which is item number one seventy six dash thirty three in the record that's exhibit h h two the plaintiff's comcast declassify damages model that's exhibit k k at exhibit one seventy six dash thirty six in the record if you feel like doing some additional reading the reports of doctors aerosmith and lynn at one seventy six dash thirty two and one seventy six desh thirty five provides further context for the superiority argument because they demonstrate why what plaintiffs proposed can't be done without involving the f d a and its agency expertise in these matters so  a direct proportion between draw volume and the costs incurred by class members and i can calculate that percentage by comparing the average drop size of defendants drops as calculated in average in laboratory testing versus the optimal drop size of sixteen micro liters which plaintiffs claim is the best drug size for all outcome of drugs and all patients and he says as long as i assume this direct correlation between drug volume and cost savings i can calculate the cost savings for each class this report comprehensively criticizes that model he identifies why the economic assumptions are wrong why the methods are wrong why the outcome is wrong dr wiggins report leaves no doubt that dr damages model is the very appear to me of an arbitrary speculative model it's not grounded in fact it's not grounded in sound economic theory it doesn't do what comcast says a model has to do it doesn't try translate plaintiff's theory of liability into a viable class wide damages model because anyone manufacturers sell the little the little drops the micro drops no your honor nobody manufacture sells at least nobody that we're aware of nothing in the record suggests that micro drops are commercially available  so that's one example and this is repeated over and over again all the elements of class certification commonality predominate superiority typicality the reports of doctors bartlet in belen that i'm referring to undermine the very premise of plaintiff scientific standpoint they criticize it for mccarran treatment standpoint the carrots can criticize it from the standpoint of their own experiences with their patients and what their patients have been able to achieve with commercially available drops they demonstrate that there's simply nothing to and they come and they also criticize the studies that plaintiffs expert dr robin relies upon the plaintiffs call the consensus a general scientific consensus these are a series of under powered statistically incoherent studies that are purporting to draw a few tentative conclusions about a few drugs on the market nobody has tried to draw the conclusion that dr robin is that sixteen micro leaders is the right drug size for all patients across all drug addicts i the studies that you just mentioned th plaintiffs allege that defendants practice of packaging their drug prescription eyedrops droppers that emit far too large drugs by lead to missouri and illinois consumer no your honor we are we do not bring a conspiracy charge here what the claim is is it's an unfairness claim under illinois and missouri law both of those statutes incorporate the f t c but now if the money because if the trucks are larger than they can sell for yes i know but there are lots of actual and potential manufacturers why wouldn't if this little drop of spent or why wouldn't one of them decide to make and sell the drop and how to compete these companies with their larger more expensive drop your honor i think that's a question i mean we don't usually condemn condemn companies because no competitors have stepped up but against the right if they were conspiring to exclude other companies from making the little i dropped out of the one thing you them of that for some reason the market seems not to be interested in the little drops your honor i see what that has to do with the law there are a lot of things a lot of products that you can imagine that are not made right because there is no market for your only if there's a market someone will produce for that market your honor i think that the difference here in this case i experts you know and i and to to complete the thought with the exception of those experts the scientific consensus on this is before this indication was ever brought the scientific consensus is that sixteen micro leader or smaller drops are so why has no company in they can sell more product this way that they can sell more prime now but there's no company in the world that could make money selling the smaller i drop which you think would you know sweep the market because no one in the world no one in a foreign country says yeah i can make a fortune selling this or this smaller cheaper your honor i can't speak don't usually use law in order to generate new new entrants into markets your honor all of these questions go to the merits i know they don't and they make the case sound ridiculous to me i never heard of a case like this case where somehow it's considered illegal for a bunch of firms happen to be selling the same product and not conspiring there's no violation of it and i trust law they've just finland everywhere so you think if there really was any merit to your argument there would be other companies there because the companies would have begun manufacturing  honor what we know is that studies from all of those countries studies from all over the world including the u s ok so why isn't any company any drug company in the world making and say eighteen micro leader property that that is commercially available for defendants to use i don't know why they hadn't used it if not to sell more product i you know their internal decisions on that is not something that we've reached here so you have no experience to why they're selling the large and small you're on our theory is that this enables them that they don't have any incentive to sell the smaller i drop so that they can make more money there's in doctor dr robin was long a there are no companies that are making what you consider your product very odd to have a market in which the best product is not made and sold that doesn't sound like capitalism your honor the unfairness claim that's being brought here is about you know do consumers have a chance to reason but that's ridiculous that's like saying if you can think up something that consumers if they were smart or would want then you can sue companies because they're not catering to the market that doesn't exist because the consumers aren't interested and the little are drugs  protected interest and if you don't have a legal right to the most efficient drop dispenser and i can't see any legal theory that would support such a claim then you don't have a cognizable injury for standing purposes have a legally protected interest to a more efficient drop to spend sir and again i see no legal theory under the state statutes here the unfairness ground that  unfair about this for the reasons that judge posner has just pointed out again that's a question on the merits of the question of standing because well because you have to do you have to allege an injury in  concrete invasion a concrete injury an injury in fact that is based on an invasion of a legally protected interest and he don't meet both of those elements of injury in fact then you don't have standing  be unfair to sell a product legally not conspiring with the other people who sell it and it happens to be expensive and there could be a cheaper substitute but no one has been interested in producing obviously don't think it has a great market but how can that be unfair that's competence that's the economic system we have your honor i think the fact that we're dealing here with powers have a car that i paid sixty thousand dollars for and could you come along and say well actually you know it's possible to have an almost identical car that only cost forty thousand dollars it's it's not the same and the reason that it's not the same and i think this court can go back to batson and look at what that how the why the district court explained this case is not like that this is there are three elements to the claim under the c standard and one of those is that it's not reasonably avoidable by the consumers themselves so these are folks who depend on these medications and to avoid going blind i just gave an example right i can't go in and tell someone i've got to have a forty thousand dollars car right right right no one is making it i don't have any recourse at all your honor i think the car scenario is different and and why it your honor with regard to that the carson area there are a lot of different cars on the market you know but i'm in my example there's no there is no subsidies no sheep substitute for this particular car think that's a question for the defendants and again we've worked hard question for the defendants you're not accusing them of conspiracy there is illian drug companies around the world you're saying this is a superior product why isn't anyone making the evidence in the record well the evidence in the record is that at least with regard to al khan that they chose to do this because it would make them more money that's the evidence that that we have on the record with regard to al q people are required to make products  spend it's a little bit different i would say you're right it's a little bit different in the eye drop context right these are consumers can't say i'm not going to buy this product right they they buy the products that are prescribed by their doctors to fit their particular medical needs and they have to take these drugs for the that element of the claim may not be met but here because these are drugs that consumers rely on to well you'd you'd say all drugs should be covered by this rule sorry you should say that all drugs should be know what i mean at the same thing what we know here is that there is a large body of scientific evidence and scientific study that predated this litigation that yes and usually when you have that the market responds the market learner's there is this product some little company can come along make a lot of money by underselling the defendant's right  let wait for the market to discover this wonderful little i drop and some small company will go into competition with the big people right i see my time is expired if i could do that sure briefly answer what we do again what we do know is that drops that are relatively smaller so they're not sixteen but we there are drops that say the difference between twenty four and twenty is that those smaller drops drive the cost of treatment for patients and some companies are doing that are making them a little bit smaller and we do see changes in i dropped size over time however and again you know what we do we have you know wealth of scientific evidence and scientific study demonstrating that sixteen micro leader eyedrops are safer and effective and would be less expensive for consumers and because of the particular position i drops that consumers can't avoid they need to take these example your honor at the f t c has brought unfairness claims against for example nursing sorry funeral homes that bundle their services and has one that bundle their  no not everything is on wire everything it has to meet the components of unfairness under the state law for it to be unfair so there are there are standards right this is not a standard list world there are in fact standards that a claim has to meet and order to be unfair under state law but if the plaintiff can meet those elements and here we say they dead in the district for help that i'm outside the class or vacation context that held that plaintiffs had in fact stated a claim under the unfairness that they have a right to bring those