beers have certainly overcome many impediments to reach the settlement that the district ordered approved but we respectfully suggest that several insurmountable obstacles remain that necessitate overturning the class or if occasion of this class action scepter trade practices that's correct but if you look at the district court's opinion at around pages fifteen through eighteen you see that the claims that were certified were the state law and i trust claims at that that were sort in the various cases do you think it is not apparent that the district court was intended to certify the other issues too but that is not apparent what is apparent is that the district court was intending to dispose of all of the other claims through the settlements that you but under this court's opinion in the walk tell case a trial court's opinion has to list in the scuffs which issues are being certified for purposes of the class action and the only issues or claims that the district judge's opinion does class so i mean aren't we dealing with all of these claims when when you come right down to it there is a relief a nationwide release being given which may be one of the reasons that it ended up the way it was in the definition that it did but you know this is sort of a class not different what the end came case of the u s supreme court stands for his is that the only way the seven class is different for purposes of class certification is with regard to manageability one unique  i believe they were your are every last one of them i believe that's correct but the fact that they when you said when they came in and they said we're going to they being the beaters and said we're going to we're going to confess liability here and we're going to move forward is it fair to presume that if they said we're going to confess i've been on some points but we want to move forward trial on some others that the court would have said alright i'll lift the fault and go to trial  things we need to go to trial on to the beer certainly maintain that one of the reasons it was settling the actions was in connection with that document to be said it could have lifted the default so so you're right that was to be yours position and it's my experience that courts often are willing to allow the faults to be lifted but the fact remains that in the sullivan action that gives this appeal its name which was followed the difficulty jersey despite the beares default in that case all that class counsel so have certified there was some thirty one states that allowed indirect purchasers to either search and i trust claims or consumer protection act claims and that's in the new york action the lighter action the district court the found that no indirect purchasers could assert damages claims against the bears notwithstanding the default so what am come stands for if nothing else is that invalid claims claims that don't exist under state law cannot be the subject of class certification in a federal court except i am so very different i mean here the whole focus would be on what the defendant did and you've got very different situation and cam where it's you know what did the plaintiffs do did they see treatment diagnosis you know how they answer condition that the dip differences are great between the con that kind of case and this case and isn't that an interest or just deceptive trade practices case kind of the poster child for want at least one common fact or legal issue predominates i mean is used in the majority put it on can ordinarily an antitrust action or a securities fraud action would not present these problems but and ken was talking about direct purchaser and i trust actions not not in direct purchaser and i trust actions and so if you look at the part of income where the supreme court says what we're dealing with here our exposure claims that certain states may recognize other states may not recognize you have the exact same situation here where as the actually named district judge diamond of the eastern fisher pennsylvania wrote in the b decision that we cite in our briefs only twenty states in the district of columbia recognize or allow in direct purchase or strip search and i trust claims under their laws and that to us is similar to the situation that the supreme court found is impermissible in a where in many states these exposed exposure only plaintiffs do not have claims under state law does this mean that if we have nationwide classes and let's say there's different statutes of limitation we have to explore where a statute might expired in a certain state so that their residents don't have a cause of action and we have to figure out conflicts of laws so that if someone's in delaware but they came to santa street to buy their diamond and they actually be precluded in delaware but not in once again i mean what do we do we do this when we certify nationwide classes we test out the viability and the existence of the claim for each individual we mean that then the district court judge had to do a complete analysis of every one of the fifty states to see if the plaintiffs had actual claims that they could pursue under their state law that would i mean let me answer both questions one of the time if i can  o it is not an insurmountable obstacle to do so but and then judge randolph answer your question we think that if a statue of limitations has expired but someone had a claim that existed under state law that's a different type of a situation from someone who is in a state where they just don't have a claim at all whatsoever and and what we have here are states that don't recognize these types of claims and indeed that class counsel themselves acknowledge that in seeking certification the sullivan case when they came in and only asked for thirty one states to be certified it was relying upon the no defaults obtained in madison county illinois state court we're nationwide class was certified right right through it should i buy circular on our decision making here  it certainly is not a perk loose of outcome on the district court because otherwise a district court would never have undertaken the rule twenty three b inquiry himself as as was necessary to approve the settlements so we acknowledge that there was a drive by class certification in madison county illinois in the long case what do you mean i mean i think i know what you mean but when i was a vehicle i mean as a business is a court is notorious for certifying claims before the defendant even appears in cases that are not the fault of let alone in cases that are defaulted and what i'm saying is that in that court as i understand it all that is necessary is that you file a motion saying that this class should be certified together with your initial pleading and the class a certified subject to later decertification microsoft case the supreme court of ohio ruled that any other type of claim that could be tacked onto a and i trust claim under a higher law such as unjust enrichment consumer protection and anything else is not recognized in that that's the easiest state to figure it out and perhaps because you have the supreme court of the state telling you what ohio law is the fact the two justices on the court that consists of if i understood if i recall correctly seven justices disagreed you know that's not  anything so we have a subclass of ohio purchasers who may have gone to new york to buy their diamonds and therefore who knows do we do we send this back for some classes do we send this back for further negotiation because maybe the indirect purchasers who have a right of action get more money and then de beers says well the other people don't have any right of action so knock off knock off fifty million off the settlement as as matter stand today you actually write that the settlement treats purchasers in all states identically as as the plaintiffs brief as a class counsel's brief conceives on pages sixteen and seventy so if you come from a state where you don't have a claim you get treated identically to someone who's from a state that does have a cl we yes we did we do object to that and we argued that at our in our appearance in the district court but to answer your question directly that is what we believe the minimum has to happen here is that the certification is vacated and it sent back to certify only the states that recognize these claims sodium our opinion in that indicate that that in a settlement you can get close and close is close enough without going through the sort of careful parsing of every state  a state's law that the district court found did apply to all the transactions so that everyone in that class did have a claim that was recognized under deliver law whether they purchased in delaware or not i see the red light is on or can i just tell from the question the finally if this if the certification were vacated if it was sent back for some class this isn't the reality that the settlement will fall apart i mean de beers for lack of a better word than they demand a global settlement if that's why this happened whether number one i can answer directly whether saddam will fall apart or not because that's part of the case that i'm not involved in but if you get it and can stands for nothing else it's that's whether a settlement is good or bad does not overcome the flaws that are present there or here in our view thank you thank you thank you we'll hear from you on r morning may please the court my name is justin tobacco i represent the a pelleas and i would have to echo judge rebels words about the poster child because the poster child is really would judge chesler did in this case these litigations were pending for several years they they of course like other complex cases they had many many issues that were certainly part of this litigation but the court took it such responsibilities very seriously applied the existing law of the circuit at the time certainly war offenders right on point with this case there's no question that the insurance brokerage decision which judge just didn't have the benefit of reading it his decision really  insurance is it is is is that really what mr tobacco we you've got a case here where it's clear that more than half the jurisdictions in the united states would not have allowed the claim at all they don't have in we repeal or statutes there that you're dealing with folks who had they gone to state court would have been shown the gate how can it be that those people by going into federal court suddenly get substantive rights and share in a remedy i think the promise that my colleague stated  incorrect this was not strictly the claims that were brought here or much broader than an actress claims so let's focus on the interest comes from it because that's what the district judge's opinion is all about right it's all about price fixing and sherman act one kind of relief isn't it well there's no question that the main focus and i would certainly concede but the judge did not ignore the fact that he says it in his opinion a couple of occasions that in the no case that this was a false and deceptive advertising claims well l was in a trust for sure and and let's take new jersey new jersey new jersey district court in new jersey if i'm if i understand correctly under the substantive law of new jersey there would have been either a right to the antitrust relief no standing nor would there have been a right under consumer protection because the new jersey consumer fraud act is interpreted in a wave those courts the say you can't go through the back door of consumer fraud to get what you couldn't get through the front door of an i trust really so in new jersey where this court sits you couldn't have gotten either under the subset of law so that leads me to wonder how could you possibly suddenly choir substantive right by going into federal court with a bunch of bodies if this was strictly an antitrust case i would agree with you in fact motor vehicles as mentioned it was a little gated i was involved in that case and in that case it was strictly man i trust case this cas conduct that goes beyond the antitrust that's the difference here even if even the consumer fraud claim under new jersey would have fallen though right now the matter of substantive law they couldn't have brought to my claim because the new jersey supreme court i think it's a sickles case that they approved was a lower court case but they say that with approval said you can't use consumer fraud as a way around the illinois brick block if i can say it that way  yeah to get into court friend repartees are kind of i don't disagree with that and the reason that we can strike and stand here and say that judge kessler got it right is because the defendant in the context of facing a certified class and there was no certification for that case there was no certification insurance broker but yet if you just look at the no certification on its face if you're a defendant would you do with that you have a couple of choices you could come in and maybe lift the default and maybe attack that maybe say or you make the decision represented by extremely experienced counsel they were going to make economic decision to avoid the risk and liability and we're going to settle it is that case involved the fifty states certification so it's not just in a trust case it's been settled we brought the sullivan case no question and i trust the inclined but deceptive practice of false advertising diamonds are forever the attack in that case was focused on the advertising so that it was a whole new an affiliate of causes of action nationwide of unjust enrichment you have so knoll is what is the foundation for initially quite well it certainly is and is a major underpinning of that and of course there was an open question later case because later a case involved primarily and i trials in the district court there said gee if i apply article line that's but there's a whole debate about an open question how about this rule twenty three trump article nine c p r so these are open issues and does the defendant as you said i think after litigate these questions to get peace well then you never have a cell and judge ambrose confronted some of those questions and in the metlife case years ago you not simple questions the difficult questions and here you had judge chesler doing a very careful and artful job it is true he probably could have nothing is perfect he could have gone on for pages and pages and analyzed l that's why i don't speak for e mails but that's i'm struggling with that how was their common impact if under the substantive law of the state there would be no right to release if the if you could not go into was that with new jersey but we could we could take texas or oklahoma or connecticut or washington or there's the number of others if you couldn't get that relief how can it be said that there's a common impact from the behavior of the beers when the legal rights associated are arising out of that behavior behavior are vastly different jurisdiction to jurisdiction indeed in several jurisdictions you'd have no right i go back to the fact that this a case that was brought in the case that was settled and the case that was settled as a demichelis of the case that was brought in other words a settlement class here is no broader than the cases that were brought in the case that was brought as much it goes beyond the unaddressed it was strictly an antitrust price fixing case we had to coconspirators and that's all that was alleging that's all it was involved in then maybe you'd have that issue i'm not going to dispute that but didn't in war if and it was deceptive practices in terms of advertising how the drugs are marketed and insurance brokers the same kind of conduct and higher in the  of trust stuff aside even though that's ninety nine point nine percent of what judge chester talked about set that aside look at consumer fraud and say because knowles said you could use across the country we're saying you can do so cross the country well again in the context of settlement in a full faith and credit is to be given any measure what do you do when you have a certified the litigation order of a court now you can say well maybe the judge got it wrong or maybe he got it right but do we want district court judges to get into the practice and require them to get into the practice of looking beyond litigated decisions in cases is it and what does the fact that it is i mean it is a full faith and credit it's not in first of judgment this is a discussion by the district court about whether there is predominance and superiority sure and and it's if you're not making the assertion are you that somehow there's a collateral estoppel effect to what the no court did or no no i'm not and i'm saying that in unlike wharf and we had no certification order here you had three different certification or is in addition to the california certification in the ankle certification you have the no certification and that's the defendant the defendant waives right to to to to dig in and attack those what's the district court judge to do because those are substantive rights that would that were certified fifty state so how could the defendant say well gee i don't want a fifty state lease because maybe someday someone could attack that certification order we could never settle these cases what would quinn respectfully request while trying to talk herself out of the right to recover here because she says she can't recover on the texas law i don't really know what the motive is for the argument but but assuming that that is her position it sounds like what you're saying is that because and this is so i made goes to which of us was saying because the beers really insisted on a nationwide settlement that that this is how it had to be and i guess by that leads me to wonder whether that really makes any difference or not when it comes to the subset of rights no matter how much the beers wants and no matter how willing they are to stipulate be liable that that willingness that desire if it might lead to a settlement but is that a legally sound i mean this isn't as a legal matter just a relevant how badly they want that absolutely that's not the standard the standard is do they face a risk however slight or whoever great we're not going to sit here and second guess the business judgment of the beers in the settlement we're sitting here saying when you're a district court judge and you're confronted by a landscape where that includes a fifty state certification includes claims that go well beyond anna trust and the defendant says i am prepared to settle those claims rather than fight them in that context just like in more than just like an insurance broker and remember insurance broker the there were there were claims that the district court had dismissed the rico claims the dish were dismissed there's certain effect of the analysis and said gee you know we can even find a way to certify those claims even though the district court found them to be without merit of a lower level how do you rate the opinion here that this fits squarely within the the predominance requirement well certainly a predominant where we start with the fundamental predominance which is the every single well you've got a two week lot put blinders on us to to every other aspect or maybe commonality is where the rest of of the situations get taken into account maybe it isn't in predominance i'm not sure you know it's isn't that why worf and it's really different from this because all the class members that have one common identical claim there well they did it is certainly the factor that helped them the delaware but think of the opposite effect i mean if you were to actually do the conflicts  you would say gee does that mean a foreign national gets a free pass whereas someone who happens to be incorporated in delaware gets nailed i mean that that practice couldn't make sense because certainly whether it's a fifty state certification and no ultimately at the end of the day in litigation con with a stand stood up is irrelevant to the question of what do you do when you're confronted with these broad claims that are sort of you're a federal district court judge you have one hundred sixty page special masses report with detail findings that talk about the economics that demonstrate how the price of diamonds was inflated from the from the mines all the way through to the finish jury you have all of this economic evidence that demonstrates economic commonality and methodology to get their wares to versus nothing  conduct if you were to try this case i think the court would have to do not the settlement context but if you try the case it might not be the plaintiffs might not be the finest choice of law there would have to be a very careful assessment i mean obviously many diamonds come through new york many diamonds come through the other diamond centers with that be the conduct if it's advertising maybe illinois law replies i mean it's not these things one of the reasons that i think you have a sum of three hundred million dollars in this case is because you have a that it's clear that everybody suffered the same injury but the objectors press the point pretty vigorously that your own experts made clear that there is not a common set of circumstances throughout the class period that in fact the beer's capacity to control the market dropped off dramatically at one point i think the quote your expert is saying that it was a competitive market and if that is in fact what the evidence was is it accurate to say that the people who bought at different times in this period all suffered the same injury or is it more accurate to say if your experts really said it some people may have suffered an injury but other people didn't because they bought in a competitive market first off let me just say something and i was prepared in the fifteen minutes i had to point out the three places where they qu expert and they take context say get out of context our experts have never conceded that any point during the class period there was ever truly competitive market in the context in which they talked about is that perhaps in the evan flow between high and low tides there were periods when there was more effect or less effect but they never said that there was ever a point where there was a fully competitive market when de beers had the billeted as it did for centuries of control raise prices for one hundred years it's a more difficult task and the experts is in the context of trying to find those relative points of high and low tide but there was never a concession of competition breaking out there in the class where after the class period john presided what's one of our experts said in two thousand and six after the injunction that was part of the settlement was in place he noted that prices were headed in a more competitive direction even there he didn't say he used to have his measuring means the need to to look at how to look at fact by saying well it was more competitive period than it was earlier and so i can make some judgment about the impact because arco it's actually found damages for every single year of the class to write to the end and it was only after the fact he was talking about two thousand and six after the class period ends that he said injunctions in place they were the easy rules that are in place maybe we're heading more towards a point where there's competition there was never a concession can she go on but but there's no time but i would certainly and by saying it's the silent majority here you have major corporations the members of this class it's unusual that you wouldn't have opt outs that would have stepped forward to fifty attorney generals that were state attorney generals are notified if they felt that my state was getting the short end because some other state was getting more money don't you think they'd be here honor is just very briefly class counsel brought to the attention of this court by means of a rule twenty eight a letter a first circuit decision that is you november two thousand and nine that they say stands for the proposition that where a defendant demands a nationwide piece it's possible to throw in states where the plaintiffs don't have any claims that's the pharmaceutical industry average host or price litigation case and i want the court to know that the district judge in that case in a decision that's reported in the effort to report excluded those states not because the plaintiffs didn't have claims but rather just because under the law of those states they couldn't bring a class action so that a case does not stand for the proposition you can just throw in quick states where the claims actually don't exist and cam how do we how do we know that the states where plaintiffs couldn't bring suit how do you know their law would apply the way to be dubious i don't know what the law where they south africa correct what's the law there maybe that law would apply and and there be no liability at all because there is no such law in south africa or maybe their very stringent laws and that law would apply this when a district court judge yesterday that the way that the district judges who have sat on these cases that bring us here today have treated that is that the law of the state where the purchase had occurred applies and we believe that that is the correct approach and in the lighter case it was found that new york state does not allow these claims to be brought as a class action and that the claims don't exist under new york law and as we said in sullivan only thirty one states were sought to be the subject of classification on the damages claims there what i am can says contrary to opposing counsel argument is that the defendants concessions to the presence of the classification criteria are not controlling because that with just and i mean a speak for a moment about the injunction piece of this you heard mr baucus say that there never been any kind of concession by their experts that there was ever a competitive period during the market that's included as the class period want you to take on that factual issue and then assuming that he's right is your argument on that score fall we don't concede that that's and of course in our opening brief we do give the quotations that were relying upon for the class councils experts that do say that from two thousand and six forward of the market have become competitive and we point out why the existence of the injunction was  the reason given by the experts for that fact having come into existence the competitive market so the experts explain the reasons why the market became competitive and did not cite that injunction issue just several months before was the reason for  the new motor vehicle case when the first circuits decided that appeal of that was a similar situation where the basis for the injunctive relief no longer existed at the time the appeal was being heard and the appellate court there sent the case back for  three class for damages is the central focus would you complete the sentence that this is not a case where there is one common question of fact or law because because in many of