under federal law to recover damages for and i trust violations as judge jordan's opinion for the panel recognize today approximately twenty states like illinois great to prohibit can direct purchasers from pursuing and i trust  claims under state law in addition many of those same states also prohibit indirect purchasers from circumventing the illinois brick i instead characterizing their state law and i trust claims as to a protection act lames or claims for unjust enrichment just as the last chance today is understated that consumers who first has diamonds in a substantial number of states cannot bring a claim for damages under federal law or applicable state law whether their claim characterized as an antitrust claim the consumer protection act claim or an unjust enrichment it is my client's arguments that federal court cannot use rule twenty three b three to certify a nationwide indirect purchaser and i trust overcharge class action to include class members whose claims are governed by the laws of states that prohibit any recovery of damages by indirect purchasers my client is not alone in that view all three judges on the original panel agreed with it indeed at an earlier stage of this case even class council agreed that before a settlement occurred in the summer the case filed in the district in new jersey but after the beers had the faulted in that action class counsel sought certification of indirect purchaser claims arising under state law because de beers had already defaulted the issue of manageability was not relevant to class certification as there would be no trial nevertheless in the sull case class council limited their certification request for indirect consumer purchasers to only thirty one states and for indirect reseller purchasers to only twenty three states after these cases settled however the district court certified two separate fifty states in direct purchaser damages classes one for consumers and one for resellers in the am can decision the us supreme court held that even in a seven class action the court must ensure  settlement was you that desirable or fair cannot substitute for actually satisfying the twenty three's requirements including the requirements of predominance here class council asks this court to ignore the requirements in plain language of water twenty three b three to ignore the rule x limitations and to disregard principles of federalism by ignoring state law prohibitions direct purchase or recovery all to allow the certification resulting settlement of state law claims that simply do not exist the price for achieving so little namely the certification and settlement of non existent claims is far too high this court's rulings in warfare an introduction will provide no support for from its here in warfare the district court ruled that all class members possessed a claim under the delaware consumer fraud act prudential meanwhile was not and i trust case and thus did not implicate illinois bricks bishan on indirect purchase or recovery finally in neither warfare nor prudential did this court conclude that applicable state and federal law deprive the various class members of any ability to seek damages whatsoever by contrast in this case that conclusion cannot be  has a well established tradition of vacating class action settlements the transgressed what rule twenty three the rules enabling act and principles of federalism allow in accordance with that tradition and for the reasons that i have outlined this purchases direct and indirect purchasers were getting one hundred percent of their claims your position would be the same i have trouble grappling with that question because it assumes that everyone has claims that there is a well there certainly is entry i don't think there's any doubt that even the end direct purchasers have injury i concerned with something that's more abstract or structural and whether it whether it involves the fairness of the allocation rather than the rule twenty three thirty certification requirements the way that the outcome that we are seeking benefits my clients is that first of all although my clients is a resident of the state of texas she has purchased diamonds in the state of new mexico which is an illinois brick repeal or state and the way that the settlements currently structured is that all class members regardless of whether they have claims that arise under the law states that have or have not applied a large brick receive the same recovery under the settlement so that the settlement is diluted as to people who have valid claims under applicable law and so it is my client's position that by eliminating that allusion that her recovery would be greater so your answer to my question would be you wouldn't have a problem if everything were uncapped and direct and indirect purchasers were able were able to get one hundred percent of their recompense in terms of my clients being injured by the problem that gives rise to this case i guess your honor is correct the same rule twenty three b three issue would exist under that situation but you know as well whether my cloudy objecting to it or not is totally different  well let me turn a little bit and your problem is more with the allocation of the settlement rather than with the rule twenty three certification standards and if i'm correct on that change the focus of her objection to be one that raises rule twenty three three hundred the circumstances one that's raising an allocation or fairness objection we are not willing to do that today or where we will hear that a lot of the i'm not i'm not asking i'm not asking to change your view i'm asking is the problem more of allocation or is a problem of rule twenty three senators the that the problem we're focusing on in our objection is the rule twenty three b three issue and the reason that it affects us is for the reasons i've just outlined but i think that there can be no escape that under under these circumstances bringing in people to this class who have no claims has an effect on the recovery of people that do have claims and the way to deal with actions that exist under common law and what questions does a district court have have to ask for instance you know that the texas client purchased the diamonds in new  mexico and you're presuming that new mexico law applies would not a district court have to conduct a choice of law analysis with respect every class member and determine which state's interests and i want to use the word predominate but in a conflict of laws analysis would this have to be done for every class member and would the court not also have to determine whether there are statute of limitations problems whether certain state laws require notice before s begin with class counsel and my clients agree that is the law of where the purchase occurred that should govern whether a person does or does not have a claim so i don't see that as being in the strategic or had no say in that none of this or courts need to just accept  that as i understand that was the way that the case was presented to the district judge so i'm not sure there's even a disagreement there but but let me let me proceed if we would if we're going to be ruling on this we have to decide we have to give some guidance the district courts of the circuit of what they're supposed to do well there's no way to escape that whether it's residents or whether it's the place of purchase or whether it's any other standard that what the district judge did here was certified nationwide class under the laws of all fifty states and so there's no way to escape that under the way this case presented right now that whether or not all fifty states confer causes of action upon purchasers governed by their laws or or not is at issue but to go on to the rest of your question which was how the statue of limitations for then we're not saying that if somebody individual claim is barred by the statue of limitations that that's a reason to deny classification in indirect purchaser and i trust cases the issues presented here today occur frequently in the in radio as speak a secure in the district of pennsylvania the judge diamond decided numerous cases such side in our brief that the attachment to class counsels class certification request in the sullivan case filed in this room new jersey contains a chart that has x s by by the states that recognize and i trust claims with without regard to when i break and consumer protection that claims without regard to what are broken so that the question of what states recognize allowing direct purchasers to pursue these clients is not an issue the courts are unfamiliar with it to the contrary they  deal with it all the time in these cases why why focus on that if i can just quote a statement from the supreme court in am chen and the statement is that settlement is relevant to a class certification so and this case involves a settlement right and in that same case the supreme court said that predominance is a test readily and that in certain cases alleging consumer or securities fraud or violations of the type trust laws so why instead of focusing on the vagaries of state was of all the fifty states don't we focus on the conduct of the defendant or the misconduct of the defendant as alleged in the complaint is that a simpler approach and isn't manageability and that with regard to predominance the rest of the prominence inquiry and the other rule twenty three requirements that that settlement even the situation of settlement there should be heightened an undiluted attention given to those requirements now to answer your question about the statement in am can about predominance being readily methods in an i trust cases if if that were meant to overcome the illinois brick prohibition on standing then there's nothing to prevents federal class actions from being brought in as a settlement class notwithstanding illinois broke itself and i think that class counsel is at least at the rehearing stage arguing that that's an alternate way for  that this court could say we're going to approve a settlement class under federal law not withstanding illinois brick because both sides agree that the case should be settled and the less this court is willing to do that as as to a federal law claim it should not be willing to costs we agree that if it were not for the existence of illinois bricks prohibition on standing at both the federal and very state levels that's the facts that give rise to this case could support and i trust claim that would be subject to a settlement agreement  so i agree with you that's about withstanding illinois breck this case could be settled and in fact we agree that this case could be settled as to all of the states that recognize the cause of actions that give rise to this case is of course are  settle all the claims but we want releases and we want releases out there from anybody who has a claim or a potential client this whole illinois rick question i think if you look at it from a state by state basis is very much up near those states today let's take the number thirty that don't have specific illinois brick repeal or they could pass repeal or tomorrow which would give the residents who purchased in their states standing why shouldn't the beers be able to pay to get a release from that potential liability is that what this case is all a bot first as a matter of statutory law it's not clear to me that certified and what claims can be settled and we stand here today i have no problem with someone who is properly in a class action releasing any all claims that person could have whether those whether all of those claims are subject to certification  not as long as one claim that they had was subject to certification but if if you have someone from ohio where the supreme court of a higher there's no doubt as to the state of ohio i i respect we submit to the court the supreme court of a higher which is the final arbiter of ohio law has held in the case of jo n versus microsoft in two thousand and five that under ohio law you cannot avoid illinois breckon in direct purchasers have no any trust claim furthermore in that very same case the court said you cannot frederick eric ries or i trust claim as a consumer protection act lame because that's also part  bring and then finally in that case the court said you can avoid it when i break by characterizing your claim as an unjust enrichment thing so as the people from ohio and very southern states it's totally clear that they have no claim under applicable state law and so the question of whether people can settle nonexistent in direct personal claims as to ohio begins by begins with the inquiry of is anyone in the class someone who has those claims or not and you can't be in the class unless you have a claim that can be decided in court what of course you have to do the same thing with a with a joiner motion shady grove said that class action rule twenty three is just a species of joinder so every time a judge receives a motion for a jointer it seems to me that under your view of the case the judge would have to assure himself or herself that there is a quote valid claim on the  merits that's a question that i've not given any thought to before right now and so i don't have an answer to that off the top of my head what about read read elsevier versus much neck where the supreme court said look the fact that certain plaintiffs failed to register their copyright meaning they didn't have a valid claim good claim on the merits did not prevent settlement of the the only quick question the reed elsevier case as we pointed out in our software reply brief was the question of whether that was an issue of subject matter jurisdiction or not not whether that defeated the question of predominance and so it but that's really the opinion the court did not address twenty three three the second circuit to to perhaps try to answer the jointer question in the case of mclaughlin versus american tobacco in two thousand and eight did say that when a claim cannot succeed as a matter of law the court should not certify a class action on that play what about much solution that it's a pretty strong expression from the supreme court about settling claims that couldn't have been brought otherwise again i  even after the court rejected plaintiff's claims on the merits the their rejection of claims on the merits is not necessarily the same thing as whether somebody has a claim that recognized under after the law or not that there are many reasons a very active group certain people that haven't have that are not in illinois repeal or states for example heigho you think that they have no claims on the merits right but that's different than saying that someone's claims or times are for example and they don't have claims they could succeed on but then those could be said i can sort cases the court decides afterwards that there is no claims on the merits and yet still it's we're trying to that's the distinction i'm trying to draw on here are the courts just trying to be practical because there is a settlement here and here is once the payout once you've done with this case and what you're suggesting seems to present a nightmarish management problem for the district courts with respect we don't believe this nightmarish class council themselves came into this very district court with these assertion that thirty one states recognize claims for purchasers  and twenty three states recognize them for resellers what we're arguing over today is whether claims that are understood not to exist should be certified into a class action and that a defendant requires not only the settlement of claims that do exist but the sell settlement when it's already dismissed the claims of a certain subclass that's precisely what's happening as we speak in the district of maine in the in re new motor vehicle canadian export litigation there judge warned be denied or are granted court and judge for me said well i can do that because the plaintiff still have the right to appeal my decision denying were dismissing those claims and even though that's a very flimsy read to hang a settlement on i'm going to permit it because those class members are receiving no monetary compensation as part of the settlement so the plan of allocation there addressed the relative strengths of the various class members claims and i have my client is raising the  allocation argument here that is how the class is harmed because judge correctly this is not an uncapped settlement this is a limited fund and no class member or no claim is going to receive one hundred percent of their damages contrary to what the pla say i believe that the court must reach the merits when ruling on a subtle mint class sort of a case in the reason is because rule twenty three and gershon require the court to weigh the merits against the proposed settlement as part of the analysis that's post certification that's you're talking about the fairness determination right but in a settlement class those those two analyses occur together i don't think so there has to be a certification and then there's a fairness analysis well in this case then the courts ferrand the court blended the fairness analysis between two entirely distinct subclasses and was able to then reach a conclusion that the settlement was very reasonable and adequate the court brought in the irrelevant issue of the enforceability of a judgment which is not a fact or undergo it may be a practical impediment but it's not part of the form on many factors well i point out in my other reply brief that a judgement remember we had the faults here so the the illinois brick repeal or states could have proceeded to to recover a judgment and that judgment would have b been good for a period of twenty years it's possible that that would have been more valuable than the than the immediate cash value of a two hundred ninety five million dollars settlement thank you very much thank you your honor has to go that morning warning it please the court my name is robert good day i represent sundeep copal in and other members of the consumers subclass about one hundred seventeen million consumers stand to gain one dollar each well the district erred in proving settlement because they refused to consider the classes right to treble damages when it compared the settlement to the best possible recovery under the eight shakhtar this error occurs all the time but it is rarely preserved for appeal were corrected consumers run might recover three times as much damages you can make a difference of billions of dollars second to the system of checks and balances class members like my clients must have an opportunity to review motions for  tourney's fees class representative in sin a few words in class settlement and file their own objections to those motions this is the only way to prevent excessive money from being taken out of the cross of the fund here after the march fourth two thousand a deadline for objections had already passed over one thousand three hundred pages were filed on the docket so was a motion for attorney's fees so was the motion for instance a few words this timetable violated the due process clause and the federal rules particularly twenty three age according to the ninth circuit in the mercury case this type of filing happens all the time even though it's against the federals for the district court or the consumer subclass representatives five thousand dollars each that is five thousand times more depending on how you look at it three hundred thirteen times more than each consumer will get it is disproportionate and it is unlawful because it misaligned the incentives or the class  courts have found an incentive rewards that are six times or sixteen times higher than average awards to class members are excessive the ratio in this case is five thousand one or sixteen when it is completely out of what it this court has address the fairness of the settlement for all one hundred seventeen million consumers the court made no estimate of the damages suffered by one hundred seventy million consumers and the only time about an estimate as to september suffered by the indirect purchasers was on april fourth when class counsel filed the declaration of mr price archivists that was one month after the deadline for objections we did not even know the amount of damages suffered by the red purchasers class we never received an estimate of dam just suffered by the consumers was it was a proper for the district court in the fairness consideration to take into account the lack of personal jurisdiction or at least see the fight over personal jurisdiction and the enforcement of judgments or was that an improper things would take into account one way or the value of fairness so we're out of that's completely appropriate to take into account but it should be done properly and should be done under the ninth krishna actor which is risks attendant to litigation in this case the court spread that fact among all the different factors might have the analysis made it difficult for your review its decision and it made a roni of findings it found that personal jurisdiction would have been difficult to establish the evidence in the record says to the contrary personal jurisdiction  may please the court samuels actor off or the police in this case the gravity mr bashings argument and the argument that persuaded the panel the first time this court heard this case is that this is a case that divides the world between citizens of states that have illinois break repeal or zz and citizens that do not a state's a do not and the perhaps the best way to start is to walk the court through if i would take my time on that what exactly was before the district court because this was not just the sullivan case this was seven class actions that were being settled in one unitary proceeding the first class action that was filed in this case and then one that was certified for litigation purposes in two thousand and three for injunctive relief was the lighter case and so i would like to just tell the court what the allegations were and lighter and let me map them onto the kinds of claims that individuals would have i have prepared a document i will file by motion afterwards it just puts these relevant piece documents from the record together but if on page hundred eighty three of the record we have the declaration of susan michelle quinn who is the only client that mr basham has here that says i purchased diamond products during the class period that is all we know about until today there was no place in the record where there was any evidence that she purchased her or her claim her diamonds or diamond diamonds in mexico that is something that is outside the record race for the first time here and quite state the claim is that she has an unjust enrichment claim and therefore she has standing now if she has standing for unjust enrichment being from texas we would have to do the kind of analysis that judge rendell and judge fisher describe of trying to figure out what every single live claim was in order to figure out how every single class member has or or could possibly participate in the recovery here but i think that mr basham and undersells his client because if we go to the lighter case one for which is the first case on file filed in two thousand and one was in trial in two thousand and five at the time of the settlement trial was interrupted a trial on the injunction what one finds in lighter is a series of claims at page five thirty eight of the joint appendix the lighter opinion of complaint begins by quoting the statement of the chairman of to be years in the united states at harvard business school i am chairman of to be yours a company that likes to think of itself as world's longest running monopoly and he comes to united states and he thumbs his nose at american law because they had establish themselves in south africa with a series of cutaway corporations that defeated any possible accountability in the united states or so they thought the lighter picks up on this statement and says aha there are causes of action that go to the maintenance of a monopoly in south africa and the distribution system in the united states and so if one looks at the lighter complaint what one finds is that the very first claim that  light which is at i'm sorry page page thirty five the opinion of the handout i'm sorry could not use this more effectively first claim is as and and for a first time against all defendants for violation of the wilson tower a fact now the wilson tariff fact is a special provision of the antitrust laws which allows damages for cargo lies in a market abroad no court no court has ever found that illinois brick applies to the wilson tariff fact until the court so determined in lighter and that issue was preserved for appeal it by the plaintiffs in lighter and suspended as a result of the settlement of this case there are good policy reasons why the wilson tariff act which involves bringing ally's goods into the united states should not be held to the to the system of illinois break as this court recognized in line aboard and in the sugar into trusts case the policy reasons behind illinois brick are to consolidate the enforcement provisions of the antitrust laws what happens when you have a foreign monopoly is that they can create a series of cut out corporations so that the only direct purchasers are people who are in cahoots with them and as a result there is no accountability in our law now these are arguments that have not prevailed but they have not been addressed anywhere either and we intended to pursue them which means we have the ability to make a claim on them and perhaps to realize the judgment mr zak rough is is the reason you're leading with lighter because you recognize that under the state law of states like ohio there's just no cause of action whatsoever that the people you represent could assert i don't believe that's correct judge george and i lead with lighter because it's the first case filed it's the first one in this series of cases and all the others picked up pieces from it but i don't believe that that is the case the no case which was certified for a nationwide class action also is a case that assumes the application of the laws of all the states on false advertising and material misrepresentations we have searched and we have found not a single case in which a court says an otherwise actionable misrepresentation or false advertising is absolved from legal liability so long as it's in furtherance of an antitrust conspiracy how about you don't have a cause of action it's not a matter of whether you've got a valid this or whether you could beat the facts on that it's you just can't bring a claim whatsoever you can't bring it under  and i trust that you can bring it under our state consumer fraud act you can bring it under common law and just enrichment you can't bring it go away george johnson not say that judge should judge jordan johnson does say that but it doesn't go as far as i think your honor indicates so for example johnson says you can't bring the anti trust pricing claim under the consumer protection laws i grant that but when you refer when we want to refers to our complaint there are seven complaints here and the complaints allege very different things they allege for example no case fraudulent misrepresentation and deception and johnson does not address whether it is action as ironclad as you would like to be for purposes of an antitrust claim we don't care what you call it we don't care what label you hang on it don't bring it here period go away assume that happened you had you had law just say clear would you acknowledge that if if that were the case then a class that purported to give rights to recovery that people in that state would necessarily violate the predominance requirement of rule twenty three because you'd have a class of people for whom there was was no claim to ever your honor i would concede that  i would have to add two qualifiers one is that it has to be a state that says no recovery for fraudulent misrepresentation for fraudulent advertising or any of the other laws so long as it's in further illegal antitrust conspiracy i will grant if some state had that law concession one and concession two and that were the only claim before the court you would have a predominant issue i don't dispute that but that's not this case that's why the the lighter complaint is so important because you have first the wilson tariff act second you have a claim for equitable discouragement under the federal antitrust laws brought on behalf of every single consumer that's right in the light or complaint mr basham very cleverly refers to the key span cases are as are suited your menu does your item it is an item of the day but the day was a decade ago when we filed the is the plan for nothing turns on that your honor it's an antitrust discourse remedy to the consumers this isn't the case itself say we think it might be optimal if you gave the room the recovery directly to the consumers but we can't do that because we have these other impediments preventing us from doing it there were there was other law that made it inappropriate and in fact impossible in the court's view to give the disgorgement to the consumer so that may be your honor and this is law that is developing and untested the question ultimately before this court is whether de beers could enter into a settlement when these claims are presented now i will grant you this has not been tested on appeal we don't know the full parameters of the equable discourse from client but that is something that has to be capable of settlement i would add one more point judge jordan which is the next claim in the lighter complaint is a claim on behalf of all purchasers in the united states purchasers under the donnelly act the new york state illinois brick repeal or the claim in lighter is that over ninety five percent of diamonds come into the united states and because they transact first in the united states through new york all of these transactions wherever the ultimate transaction is is actionable under new york law some subash mint so you're saying that because the diamond passes through the state of new york that gives the state of new york the authority to state ohio we really don't care what you people think this time it went to our territory so we're in our law the the new york state in its application of the donnelly act has taken the position that if it has antitrust effects in new york even if the final transaction is not in new york new york off now the new york court of appeals has not ruled on that but the appellate division has and so again the question is not will we ultimately prevail but what was the answer that mr vashon gave to this court at the panel stage on why leiter could not apply in this fashion why new york donnelly act repeal or couldn't apply his answer to the court was this is not an issue this is not a serious issue not quote the court did not certify the new york state anti trust claims because of new york state law quote this opinion by itself clearly demonstrates that a fifty class state class is improper mr bashings advice to this panel to the panel of this court and to de beers was never settled a lighter case on the basis of new york walk as applied to the entire class why because new york law forbids class actions for this kind of kept claim and the fact that this is brought in federal court is of no moment and we know that that's flat wrong what's wrong couldn't be more wrong after shady grove has you question about something that you said just a moment ago if  member of the class has only an antitrust claim and is from a non repeal or state that person would not be entitled to recovering this case is that accurate that it wasn't what i was saying was that it could raise predominates issues just because somebody comes from a non repeal or state one of the interesting things in this in the various opinions in this is that nobody can figure out who are the non repeal or repeal or states it's in flux all the time but when any appropriate for a subclass or  group of class members if that were the only claim before the court then there would have to be some equitable accommodation on the allocation side as between the different members but the facts of this case again they all have it under the certified no cut case and they all have claims that were denied for certification and lighter but which were pending on appeal from the magistrate in the district court's ruling when this was or were preserved for appeal when this was settled what should be our focus you know writing at the dominant's decision when we look i think the focus is what the supreme court said in am cam and what this court picked up in the prudential opinion which is is there a genuine controversy between the all that between all the class members and the defendant that's the reason am chem failed and kemper what we're hearing focused on the conduct of the defendant in the allegations of misconduct fraud that's correct your honor you don't agree that that's i think that's absolutely critical but the question but i was addressing judge jordan's question about whether differences in the plaintiffs could ever defeat predominance and the answer is of course under some in extremis scenario that doesn't correspond to the allegations in this case it could i don't deny that when the court conducts the predominance inquiry it is a multi faceted inquiry it turns on whether questions of law or fact that are common and whether this will control the operation of the fact what is what is the law and what are the facts that are common in this case but the facts are clear the facts are you had an international cartel for one hundred years that monopolized the diamond trade you had complete control by the way complete control well into the class period i think if the court pays attention to the reports of dr pursue arc with doctor dr french and and even the trial testimony from the lighter case what one finds is that continuing antitrust violations through out and cardo is ation throughout the the class period so for example isn't fact though you're reciting facts and you say they're clear but isn't the question we have to deal with not whether there are facts that are in some abstract sense common because they are historical in the exist but whether they are common questions that is whether there are legally relevant questions as to which those facts pertain mean if i accept for purposes of discussion the stage of the case of what you said is completely true but if it's the case that those facts give rise to legal liability for one person but under the operative law of one of the states whose law you can vote there is no right to recovery is there a question of fact in any legal significan common amongst all members of the class judge jordan you keep pushing me back to a hypothetical that assumes a one claim case which is we seek to recover for for violations of the antitrust laws on grounds covered by illinois brick there are states that have illinois brick repealed in states that do not under that circumstance yes there is a division and yes there may be there may be a division such a division of such magnitude as to defeat the predominance that's not this case the case comes down to light or to the wilson hair and to an assertion that new york law should apply generally wilson  wrong under shady grove the null case which has the claims for for false advertising and for material misrepresentation under the consumer laws of all the states and the various other claims because there's a whole constellation of complaints that raise unjust enrichment claims across all the states there are at least a half dozen operative claims that cover every single claimant in this case and the question your honor i think has to go back to what is the standard the questions that the court submitted to the parties started to introduce the idea of a valid claim this is a this is a term that as best i can tell first appears in this  rendall's concurring opinion in in the panel decision in this case that has never been the standard that this court has applied this court in prudential was careful to go back to the m m formulation of genuine controversy in the pet foods opinion this court used the the concept of a present claim a present claim that means and live asserted claim and i think that if one reads the totality of the record all the cases that are before this court there's no question that every single member of this class of all the classes the seven classes have genuine controversies have present claims of live claims against to be yours let's assume you're the soon you're right and you've got use a half dozen claims that may exist for all  class members but the fifth circuit in the storm in case you thousand too said that variations in the state walk and none the less walk those common issues what could not happen here it could happen here if the question where the manageability of a case for trial i am not aware of a court that has held in the settlement context post am cam that variations in state law are so significant that you cannot hold a class together when class members make common claims particularly judge and bro when the gravel men of the first case that was filed was federal law was to damages claims and directly under federal law not to mention the claim that has been made in several of the cases and preserved and we address it in our brief that there may be a different standard for section two as opposed to section one that under section two monopolization claims you may have a different application of illinois type bill my brick type answer surprises me from what you just said in response to judge hammer that settlement is different that to me seems to be very important and in your analysis of if this were only illinois brick then maybe there's a problem that seems inconsistent with the idea that illinois brick really was a manageability case it had credential concerns it wasn't really a settlement case and in in a settlement situation could be years not by global peace even if the only claims were illinois brick type claims where what they wanted was to prevent someone from walking in even if they were from an illinois brick state and saying i'm an indirect purchaser and i want to sue doesn't settlement make a huge difference even if this were only illinois brick i think it does i think that the this court's recent decisions in viruses and in pet foods indicate that settlement is an important policy i fully agree with your honor and i hope i did not speak to the contrary earlier that illinois brick is indeed a potential decision it is indeed a way of allocating the enforcement provisions of the of the antitrust laws and this court recognized that in line or board and in the sugar antitrust case that was we're saying there is a twelve  rule twenty three i think we would be saying even more than that your honor i think it would require going beyond twelve b six and introducing the idea of what your honor addressed before which was individual by individual determination is what the court is being invited to do here is to substitute a requirement for anything that's found in rule twenty three about about which is comparative and which is highly deferential to the to the discretion of the trial court what the court is being asked to do is to find basically a requirement of trial for each individual's individual's claims in order to determine the relative weight of them and in order to determine the relative strength of them if the judge take a trial m states and there were a state that said plainly you can't bring this claim for injury under these facts no matter what you call it but that would defeat predominates i understood you to say that now maybe you're unsane and if you're on saying it reading of johnson but if we if you look at any rate abbott labs from the northern district of california in two thousand and seven when they were dealing with purchase or indirect purchasers who might have claims under the state laws for conduct that was in addition to or in concert are consistent with an anti trust monopoly claim what they found was that these states do not preclude indirect purchases from a certain kinds from just enrichment and among the states if they listen there was ohio now maybe that court got it wrong a single case where there's a decision by a court where there's no illegally break repeal or where they've said go ahead and you can recover for unjust enrichment or you can recover for consumer fraud the supreme court of new jersey in the wilson case in new jersey is not a repeal or state in the wilson case a supreme court of new jersey says however we leave for another day whether a consumer fraud action would be precluded when the allegations of a violation of the antitrust act include other day including the bill but you know if i may finish include communications with or statements to new jersey consumers that are clear violations of the c f a they  preserve that the cigarette case in texas another non repeal say has identical language your honor it is true i don't have a case on point but your honor has no cases on point and there are none cited by mr bachchan that establish that you can commit we wouldn't be having an argument about the laws of the state but your honor i believe he did if one looks at the district court's opinion the first three pages are a careful recitation of all the underlying claims in all of the cases that are up before the court and when he recites those cases including the lighter case he recites not just the state law claims but the federal law claims and then he makes a finding that in addition he is persuaded that there are live claims under the laws of all the fifty states but that does not that is not the exclusive basis for his certification and let's keep in mind that what judge chester had before him from the lighter case was a case that was already certified on a nationwide should allow recovery there under that circumstance i would submit to the court that if there were no case that mention state law that that would be sufficient but of course we have to deal with the certification as it stands right but the certification was on of multiple cases on multiple bases and the question here is largely an allocation question between you know whether this was ultimately more about the cape cases from the indirect purchase from the purchaser judge chesser was not persuaded that this was a fundamental difference given the overlap of claims that everybody had any points for example specific to the null case which is a nationwide consumer case that's that's that's there before him under these circumstances what he had to do was figure out what was the appropriate division and in fact the hardest division turned out to be between the resellers and the direct consumers ultimate consumers would you agree that questions under twenty three twenty three a two and then you put them together into a predominance inquiry and what he when he went through the predominance inquiry he found that the constellation of federal claims and state law claims clearly predominate over individual issues that is the language twenty three b three does it predominate over individual issues but in doing so doesn't the court need analyzed or more so the difference is the state claims i think that what the court did was it looked at the the proffered objections on state law claims and found that as a result of the no case in the certification there there were live claims before him on behalf of the consumers of every single case of every single state further in reciting the claims from the lighter case he he picks up the various kinds for damages under federal and new york law that are common to all class members he has one statement where he says and i find that the differences between the state laws are are not significant and he further finds as a prudential matter as a matter of his case administration that it would exhaust the funds even of this very large under their standard a district court would have to do this with every single claimant in every single case as long as there is a state law claim asserted that can't be right the state will quite you say that i'm puzzled by that you say you'd have to do this for every single claim in every single case that ever came up this is the case that's presented here is not one that requires asking every class member in every single case you know what the choice of law is the class it was certified purported to apply ohio law for example ohio law says if you accept the reading of johnson that mr basham puts forward you don't have a claim and joe jordan to the case to whom does jeanette on its face without any inquiry about no absolutely not your honor absolute with all respect absolutely not we don't know whether johnson applies to a single person even under your reading of of johnson because we would have to figure out where they bought the client where they bought the diamond whether that in the chain of distribution some other states laws were applicable we learned today today that this is a new mexico claim well don't we have to do more inquiry on every single person ohio it may be that the entire ohio diamond market is people who buy through resales of various states of various transactions that occurred elsewhere i guess it may be but wouldn't it be pretty easy to establish a class it's that if your claim arises under ohio law you don't you don't have a clue but how can i ask him that question at all when i would make two points and i realize my time is up first of all we don't need to make that because every single person in ohio has a claim under wilson tera fact has a claim under the equable discoursing federal law has a claim lighter under the donnelly at second but even if we were to go down this path the figuring out the transactional chain to figure out which law applies to each each sale is a matter that would require an extraordinary choice of law analysis because we would have to figure out whether states are intrastate whether states are our final transaction states and then we would have to do a choice of law factual determination for facially clear on the law not on the facts but it's usually clear on the law that persons whose only claim could arise under ohio law have no claim then what factual inquiries in  the under the narrow scenario you just gave me i agree with you but that is not this case and what's nor you have you have forced me to stipulate that it would be a relatively easy factual matter to determine under whose law this arises so we would know it whether it's oh how i will submit to you your honor that this is not the case here we have no idea as we learned today shockingly that ms quinn has reason wrecked resurrected herself as a new mexico resident in order now to claim an illinois brick argument for the her controlling law which appears nowhere in the five year history of the objections in this case that inquiry will do every class action settlement and i think that if the court goes back and i have one minute you're on if the court goes back to the standard from prudential which is whether the district court within its sound discretion supported by the record and amply demonstrat opinion has resolved the appropriateness of the certification that what one finds is that pursuant to walk tell the district court identified all the claims well the sources of law that were applicable here it identified how it was going to manage the distribution so it was fair adequate reasonable to the classes twenty three even requires and i think this has to be within the discretion of the trial court because the objections that are put forward are basically to assist to a case that was not before the court as the court recognized in the first pages of its opinion the u s supreme court affirmed in and camp and in support of that proposition he cited phyllis petroleum against shots so the idea in a suddenly class that an individualized choice of law inquiry has to be made as to each plaintiff claims is already the law of this court could you address something that really hangs over this case that we haven't talked about not directly federalism in the rules enabling act how can a settlement present either federalism or rules enabling a concerns one of the pendant could easily choose to settle a lousy claim in state court even if the defendant believes that it could win i think the difference your honor is that the court isn't broiled in a class action settlement to a much different degree than in a settlement of a non class action and so that's the answer to the question and both ortiz and am cam recognised that the rule enabling act does apply to settlements and the idea that such class counsel has about seven assisting a private agreement is contract well this is this is more than a contract i just said because the court is involved in approving it and these people are giving up their non existing claims in exchange for not being able to go into court somewhere else isn't the focus on the absent class numbers whose rights may be improperly compromised isn't when we talk about the fiduciary duty of the judge and the class action problem isn't that the focus elmo first of course the class actually has to be properly certified  was not and if i could just respond to that question about claims and defenses and how that comes in just wrecking your pin in prevention relying upon the u s supreme court's opinion and cam stated that quote the claims and defenses relevance of the predominance tests i'm going to leave certain language in the bill there refer to the kinds of claims or defenses that can be raised in courts of law as part of an actual or pending lawsuit and we submit that where the claims do not exist under state law and here certify state law claims that those are not wrong that argument there are several things wrong with that argument so for us all that was not the claim that was certified by the district court and we see no basis for this court to affirm in an alternate basis the district court has to decide whether a class can be certified based on certain claims or not and this court can't come in after the fact and say well we could certify on different causes of action that this record did not even examine in the circuit in the certification or predominance context because it is a very factually into of inquiry in various ways but even more importantly the argument that we could come in and say that there is some change in the law that could occur in the future that would actually give us a claim this is not the basis on which the court has to consider the predominance inquiry rather the province increase based on the law as it exists at the time a court considers the case if you do the district we've offered the court those claims do not exist probably twenty one states and therefore cannot be certified under rule twenty three b three we judge randell that the district judges predominate inquiry leaves a lot to be desired and i think the judge jordan's opinion for the panel sent the case back with the thought that perhaps a different class could be certified so this is not an all or nothing exercise nor did the panel say that this case could never be certified based on the facts who like here on issues to bash and thank you very much we had a spirited argument this morning the argument was superb from all sides we thank counsel very much we thank you for supreme briefs as well the court would like to have the transcript  argument and ask the parties to share in the costs of that and if you would kindly check with the clerk's office though tell you how to do that the court will take this matter under advisement and we will