fee reasonable that question cannot be answered without looking at the individual circumstances which the late fee is actually charged it cannot be resolved on a one dollar size fits all  plaintiffs convinced the district court here to reach a different conclusion by one misreading texas law to setting aside individual life issues to the detriment of both defendants and that absent class members and finally by improperly putting a heavy thumb on the scale in favor of class certification what i would like to do this more this afternoon your owners is really focus on three issues in the brief st to explain why the district court's interpretation of the texas statute section ninety two one knowing is legally wrong that statute requires that a late fee be a reasonable estimate it does not impose an affirmative obligation on  to conduct a prospective estimate at the time contracted nd if the proper interpretation of the statute is applied it is clear that individual issues here predominate over the common ones and that the name plaintiffs  not typical of the rest of the class and rd i will make the point that even if there is any doubt about the interpretation of the statute here it is clear that the plane can throw arguing for an innovative interpretations that state law one that has not been applied by any state court and in these circumstances it was not possible to conduct a balancing required of superiority analysis especially because the texas later legislature structured this statute to incent individual litigation and eliminated the possibility of a negative suit if i may let me start with my st point which is really as you can see a focus of the briefing which is what is the proper interpretation of the statute and as you can see  now a reasonable estimate of the landlord's uncertain damages resulting from the late payment of rent and it tells you that's what it was to be and then when you look at the well it says that the landlord is prohibited from charging so the question under and there's nothing in the statute that requires that be done at the time of contract if there's any doubt about that interpretation of tact it's confirmed by the structure of the statute the statute has a specific provision that allows for provisions in the texas property code is to show that when there is a dispute between the landlord and attend the ten can bring the landlord to court small claims court or otherwise in order to get a recovery it would make no sense to set set up a statute that in our view of the world is supposed to give the lamb the tenant a remedy if the remedy is not for the fact that the fee that you can charge is on reasonable but rather a strict liability regime which is if the landlord has not done a prospective estimate it cannot target feel at all so there's a mismatch between the way the statute structure which is to give remedies to tends and the way that the district court read the statute which is more in the way of a strict liability village and then if any of that was in doubt we don't think it is but the interpretive prints of those all work in our direction both under texas law and under th circuit law so the district court said that not only did he think that our interpretation stopped it was wrong statute it must be interpreted away from imposing liability course that principle of texas law is also consistent with this court's principles of what you do when you're making a guess we shouldn't case after case but the barfield  the case we cite in brief this court says we will not make here against his will we are giving state was innovative or expansive interpretations that extend liability beyond where they were before and again as i mentioned no state court has ever each individual tenant houser right to come into court and argue that whatever might be true for everybody else was not true in the particular circumstances and that even though in this case a seventy five dollars fee is something that texas legislature convince you otherwise but we could also talk about this all the principles what the statute does say is the payment of the fee itself is not a waiver and it also says in the lease you cannot force a waiver but that doesn't mean that the statute gets rid of all both permissible that's automatically reasonable anything above that you'd have to show that there is a it's a reasonable estimate of yours from then it would be very off for a court to now put itself in the position of making a judgement contrary to the legislature happen what we're talking about here is a late fee on its face that is consistent with what's been done in texas for a long time a reasonable way or we now know based on the legislative judgment that it's well below what they  give individual property managers the ability to waive which as you can see from the facts alleged in the point is it happens all the time and if you get rid of that by having a one size fits all litigation you get rid of the ability for this don't believe is related to the amount of the rent the penalty policy is a uniform policy in the club in case of seventy five dollars for the st and late fee and then at least ten dollars per day thereafter in the gro case it is correct that the late fee is ten percent of the monthly rent but there's no evidence in the record of brown that any determination has ever been undertaken by him to make written down the middle gymnastics but that we can take the common that's what this was intended to be so then we end the situation where ten percent of five hundred dollars might not be renewed but two percent of one thousand dollars  this class does not pay any attention at all that that's the america of the monthly very well your honor i think that if you were to disagree with our initial position which is that as the court recognizes the landlord has to make a prospective determination about whether a late fee is a reasonable estimate then there's a nd class wide common issue that would have to be reached before you would even reach the question that the court is contemplating which is whether the calculation that the defendant or doing represents even a determination of day and what they're doing is making a class quite uniform assessment of their collection books and they are saying that they can abrogate would be whether those overhead cost that's standard operating expense is even damages under the statute and if the class prevails on that issue then the entire class prevails at one dollar stroke and do the question the courts just posed has never even  relationship to the total late fees they charge their theory is that that is a uniform determination there is not order in the district court below that there or individual thousand dollars a month for it it may not be reasonable when you're paying three or four hundred dollars i don't know and you saying that under the common law even though it might be reasonable under certain circumstances the common law going to  will be tried you have to look beyond the sleaze and you have to actually look at how the case will be tried and what i'm telling the court is the way a has defended this case the way they would propose to try a case is not with the argument th so i don't think it is correct to assume that the fact that there might be different runs and by the way i'm not aware that the record reflects anything about significant variances in different rooms in these properties in the analysis this class was very carefully calibrated around those rules but if a defendant then was to argue that there were in fact individualized issues that defeat predominance it's incumbent upon the defendant to come forward and make that argument to the district  argument about how they define a reasonable estimate of damages and it is a class wide aggregation of all of their collection was compared to a class void aggregation of all of the late fees and judge  we don't think that's a correct approach to the reasonable estimate towns but as i think your question it's it's a bit of whoever is right about that is going to win in one stroke if we're right but that's not a legitimate reasonable estimate of damages the nothing in this record provides any foundation for that or so it's conceivable that there could be a lease for one hundred dollars in a lease for a one hundred thousand dollars and obviously didn't else's could be different if there were disagree with our this whole theory would be relevant only to the brown case and not to the club and they would have been charged with responsibly demonstrating a basis for that kind of individualized determination and i submit the record doesn't support  when you look at how the case would be tried as this court president or as to do you see a con basis of determination on both sides i want to put this in precise context by talking about the counterpoint that are alleged against the named points because if there was a basis to make this kind of individual assessment you would surely think it would be right with respect to the new players council talked about some of the distinctive facts about individual players claims none of those facts have anything to do with the classification and a class standard of one ability but with respect to the counterpoint when we challenge the defendants to identify the damage th lives they have suffered as a result of the individual plaintiffs breach the only argument they could make was the same argument they made in defense of the reason why as to the damages it was bad their overall aggregate collection costs represent their damages and a portion of those damages are attributable to the points and let me give you the citation for that purpose so you can see it because i don't think i gave you that citation in our brief that's had any meaningful difference in individualized assessment about the relationship of late fees to damages caused by individual talent you can see it in the clash of the district court papers this record supports no variation whatsoever in the way in which the individual tenants have been charged late fees i would like to deal specifically with counsel's argument that the o'sullivan case in the o'sullivan that's the case involving mortgage lenders and charges that would be assessed by the lenders for conduct that was alleged to be an authorized practice of law and the court said there's individualized decisions in each of those transactions as to whether that particular conduct occurred and so you'd have to go transaction by transaction to determine whether that was unlawful charges have been assessed but year after or so in a monumental life decision the court distinguished so in a case like this one where you have a common class wide course of conduct and liability would be proved true or false for the entire plans  fact that these claims he might have some positive value does not outweigh the other factors and superiority of his and i think it's important to put this in context in monumental life the court talked about the ultimate negative value necessary it claims here we have estimated and this is from the evidence in the record you have in the club and case you have of claims that or on behalf of forty nine thousand  suggestion that even with the incentives the statute provides any individual tenant would have an incentive to litigate against one of the largest residential property managers in the country those are in some way superior claims to be litigated as an individual claim rather than the classic line i think doesn't give appropriate deference to the district court's discretion and so these are in any meaningful s negative value claims when you look at the actual cost of litigation client and certainly when you take into account the factors that bear on the security analysis the suggestion that there would be a matter of law rule that unless there is a negative value claim on a per se basis you cannot certify the client that would be unprecedented in this court's jurisprudence and i think in any circuit the i would potentially eliminate for example federal securities class actions and i trust class actions which frequently have possibility of the shifting recovery and the fact that there were possibilities of bible claims did not indicate that the district court it used its discretion by assessing all of the factors that go into the security analysis and determining that a class treatment would be superior well i'm speaking disappear we worry i should address what i understand to be an eerie argument that there is some close a rule that simply because offline that appears in federal court a class cannot be so again there's no authority for that proposition i think that argument is foreclosed by the supreme court's decision in shady justice  that a class action is simply another method of adjudication of claims that have been joined together it does not change the substantive rights of the parties the plaintiffs here who are required to be a hurriedly to the matter of the interpretation statute since my colleague has spoken to it and i do want to go over the court our perspective on as i've indicated whichever didn't interpret the statute or that it interpreted the statute incorrectly wouldn't that require a remain and for the district court to reevaluate all of the crash action factors the ordinary meaning of the word estimate in the way this statute is structured would simply lead to a class wide rejection of the plainest st question and would lead to the next class white question which is whether aggregation of these collection cause or damages that doesn't change the district court's analysis of whether class certification is appropriate at all and that's what the court said we don't not making this up judge could mean to say this and said whichever party is right about the need of the statu issue of liability is going to be determined on the class point basis and on that question of whether the district court was right i would like to add one additional element to the target of puzzle i call just to the court i did not make this point in our brief and i think to the extent the court really looks into the interpretation of the statute it is meaningful because the statute as the court knows requires a reasonable estimate of the landlord stooges from late payment right we believe in judge couldn't it is beyond the ordinary reading of estimate in this context requires a prospective determination we believe that necessarily is a close why determination since it is focusing on the landlord late fee more than a dollar bill the tenant would only have an argument as to whether the one dollar charge was reasonable not whether the two hundred dollars charge that was up to in the lease because the focus in the statute was on the real was not on the fee not on put in the least when the legislature wanted to talk about what could be in the least it did that differently and you can see that for example in subsection d nd he shifted to reasonable those that was most of his argument judge owen picking up on your argument but the key point to resolve except for the question of how much damages so we're not talking about a trial over the reasonableness he has already applied the theory of a predictive estimate that opposing counsel is not really willing to defend he also an opposing  misunderstands how liquidated damages are so close to work which is what this provision is similar to is always to improve on liquidated damages provision st is it generally acceptable and then nd even if it is generally acceptable is actually tomorrow and said individual libyans are entitled to a reasonable argument time and if they don't get it they can appeal to some higher body you would continue to say it would be twenty minutes for all arguments but he would give discretion to yourselves or the clerk to make that judgment in a particular case if challenged on that you would say that twenty minutes is reasonable it has always been reasonable but also in the particular circumstances this is not a usual case where we are allowed to apply that's the same thing here we already know under the new law and laws across the country that ten percent or seventy five dollars fee which is what we're talking about on the face so reasonable so the question no doubt that we would defend our position by saying the seventy five dollars matches up with the type of are in a month wrong run of the mill case but we are also entitled an individual class members are entitled to make the argument that their case is different and we are allowed to respond to them which is precisely the reason why the texas actions are more efficient but proper standard is just take a look at everything at the same time and if you do that you come up with the following things st you say this is an innovative theory of state more about predictive estimates that doesn't apply under the statute no  legislature has specifically created a remedy to make a non negative suit you know you'll see both today my opposing counsel and in his brief he says well there's lots of reasons to think well maybe they won't bring these litigation if that's true that is his burden to prove is never