certified classes in this case paper six cars got on six cars that's a concrete injury providing standing the dangers that the be packed as demonstrated by many aspects of the record but perhaps none better than the fact that was internal communication architectures can buses and their infotainment systems you can x factor's could control virtually every function of the vehicle while they are being group including critical operational and safety function like steering that there is no standing the district court applied the wrong standard engage in the wrong analysis and relied on factual findings that contradict the record as our briefs explaining where standing analysis is intertwined with factual findings relating to the substantive elements of the claims a court cannot engage in direct attack on the merits in that situation for that form of a standing challenge the court has to treat it as a motion for summary judgment that's not what the district court did here the district court assuming all of the jury makes factual findings relating to the core elements of our claim and work backwards to hold that there was no standing not only is that a coaching permissible the possessor court's findings can't be that's just one example there are hundreds of pages of expert reports and hundreds more pages of expert deposition testimony which at a very minimum create a genuine issue of material facts regarding whether these products are defective the defendant landscape the point that the district court's order seems to suggest although it's a bit hard to tell that she is addressing this as a facial challenge and just disagreeing with what judge reagan had previously decided how do you respond to that because it wouldn't matter what the hundreds of pages of expert's report say if this is just a facial challenge series three series of motions that were also going to at the same time here there were d'albert motions challenging every one of the experts to motion for summary judgment motion to be certified the class a couple of other motions and she does make reference to some of those aspects of the if i could jump in here to be fair to the district judge or the arguments that were raised on your side at this juncture of the case on the stand the issue didn't deciding the stand in question on pleadings but here we do have a different procedural posture and yes your argument on standing was of law and no facts so far as i could understand it and it's shifting on appeal now you're arguing facts and i think that's a fair characterization i don't think that it is a problem if you take a look at the basis for  through twelve b one motion is essentially a legal argument it's a six page motion there's virtually no reference to the record whatsoever the only references to the record occur in two paragraphs and it's essentially just characterized as asking for more safety that doesn't provide standing and for certainly the thrust of our response was to show that s c s characterization ringback of the facts or those cases was wrong the problem here is because the district court engaged in the wrong analysis and applied the wrong standing she delved into the record to make finding the way well beyond the scope of s c a motion her decision is based on her finding that it is quote unquote unclear whether the you can act is defective and once she goes down that road once she opens that door that's when this intertwined principle is activated and she needed to treat these motions as motion for summary judgment now i think there was a replay argument go back to my question which is why i asked if this was a facial challenge or a factual challenge because it did seem to be presented in the twelve b six as a facial challenge of almost a motion for reconsideration of what judge reagan had done yet the court may have gone further he it's clear i i think that the motion did present a tiny bit of record material that went beyond the allegation t complaint and on that basis i don't think it was error for the district court to characterize it as a factual challenge the error was introduced when the district court was wrong standard and expanded for consideration in a way that you consumers got exactly what they paid for consumers did not get what they paid for them consumers didn't bargain for a vehicle that could be hacked and remotely control while they are being driven and defendant's own documents show  uncertain terms that the vehicles don't work the way they're supposed to they don't work as advertised and expected for example one se a power point presentation summarizes the issue it says that hacks of these vehicles are quote a matter of when any e mail that says quote we are painfully aware of that there's another email from an f d a employee begging managers to change exactly the aspects of the desired issue in this case because they knew how dangerous it was was that e mail leads that the testers cisco concluded were so glaring they could be exploited by semi professional hackers or even hobbyists and ultimately the renounce i was security expert marc rogers concluded quote this is court well d as i mentioned the district court where the on the scope of the twelve the long motions to include ask other aspects of the record and she does in fact reference the survey that was conducted and the damages analysis so i think that this is fair game and in fact here are the the fundamental methodology the principles of the d c e method actually refute the defendant's core claim here that this is a bit damages it does that by directly measuring the benefit of the parking injury the differences between what consumers expected and what they got and so the d c analysis itself refute experts there were depositions and the defendants are filed down promotions but that's that's sort of the point here is that there is a process for challenging expert opinions here and for merits purposes i'm sorry what was i but it has not been a ruling there was no ruling on the admissibility of this expert's opinion for marriage purposes as i understand that's right a so  because it appears to be in the nature of a reconsideration motion as she suggested based on the law of standing and whether this is one of those no injury cases for which there is no standing and not whether the expert the damages expert's report addresses though she never overturns those as far as i know the defendants don't challenge the accuracy of those allegations and they the record only adds to that whether d it's evidence of the big facts or the d c e analysis which is a critical difference here we have a lot of facts showing evidence of the defects in the injury both with both the defects on cable and the out of pocket expenses there's no out of pocket expenses there are no out of pocket expenses one aspect of it but the primary position was that the allegations were what the th circuit characterized as being conclusory and wholly and supported by any facts and even in our complaint we have twenty eight specific allegations to support standing well mr clancy is is there any evidence of a real world effect on the market after the wired story came out with their it's not something that we studied we eyeball to every owner of one of these vehicles characterizes the problem as the potential for driver distraction and then says if you participate in the recall the problem will be fixed so there's no reason for consumers to believe that there was a continuing problem there wouldn't be any impact on the market because the consumer didn't know about the problem and that's where the decent you know has come and i'd like to reserve the rest of  has brought up and then the issue about what the district court do with your mother not to be characterized as reconsideration or a factual challenge i think that the record is frankly viewed as showing that this was a factual challenge and the record is also correctly putin is that your honour's of pointed out the plaintiffs didn't rely on their experts they didn't put in any evidence that they suffered an injury in fact and that's what the issue was on their actual challenge and plaintiffs i think to try to confuse the issue a bit by arguing that a summary judgment standard should have applied and of course they didn't argue that in the district court but that's an argument that they make in the school but that's our argument is wrong for a couple of reasons your honour's the st problem or a statute provides the basis for both the subject matter jurisdiction of the federal court implying of substance claim for relief that's clearly not the case or your own is quite plain just claims are not brought under any statute that provides the go in allowing the purchaser of a product to maintain a lawsuit is the law going to allow a purchaser or product to maintain a lawsuit where that product has functioned exactly as expected throughout its life for everyone who purchased it intended and was equipped as promised no plaintiff here try to base their injury on an overpayment they say i paid more for might be able to them they were worth and depending on where you look in the records they say i overpaid because maybe it was half gift for starters here you're on the air one million two hundred thousand dollars of the vehicles at issue sold each of those on average have been on the road for about six years now which equates to about eighty or ninety billion miles one billion with a b miles driven by those vehicles assuming a conservative twelve thousand miles a year during those many billions of miles there's been not a single instance of a real world tax there's not been a single no one instance of any hacking attempt on those  a factual determination is specially given the expert testimony of the plaintiff here and specifically if the question of whether or not there's a defect a factual question that the that wasn't what they thought they were getting because it was defective wouldn't you have to make a determination about the defect in order to term and if they're injured well no you are because a defect does not equate with an injury so vehicle they thought they were getting a vehicle that didn't have this potential to be hacked but because it did have the potential to be hacked they didn't get what they paid for so i understand what you're saying but that's not what was advanced by the plaintiffs here your honor i think the chain and court speaks directly to that just saying but i don't we're paid per vehicle because it has the potential to be hacked i wouldn't necessarily have to determine whether or not there's a defect to determine if they got what they wanted well your honor i think the big change in cases in the law some cases in other cases say that the injury as she was th sting from the defect you have to look at what point to say the defect caused in terms of an injury you can't just say under the law that i overpaid because i got a defect but simply putting a label on how did that defect in the injury frontex affect planes us or their vehicles that is the issue that the district court and that's the issue when we look at k and we look at wassen another standing faces we're looking at the injury issue yes in those cases just equate with an injury automatically you have to take the next another step and you have to look at the injury issue separately what are plenty of those claims in terms of how they were injured and here they were injured because they so they were they were paid for their vehicles they say they were injured by overpaying for their vehicles we have to look at what did they pay for and what did they get well they got vehicles as they can use for tens of thousands of miles a new viewers every day since day one when they purchased and they got vehicles that they never had to spend money on and they got  when you file your motion which did appear to be a motion for reconsideration but when you filed the motion to dismiss for lack of standing that the court ruled on here  after the close of evidence when it was clear the plaintiffs could not muster any evidence of an injury so we did raise it as a factual attack pointing out to supporters but the plaintiff only theory about a defect here was based on the notion just like in lawson that the claim was that something additional could have been added to their vehicles that would have made them safe and when the plane just said mustard no real world evidence it let me back up here because it's important i think to get back to your question about the defect to when you asked point to what is the fact about these vehicles and the claim really you know it's right in the target areas of the law some cases where they're claiming it might be able to run safety for something more but have been done to make them safer in terms of adding additional components but i want to quote from the last in case it teaches about an injury and it should not be premised on the loss of a safety benefit that was not part of the bargain to begin with now your honour's plan is trying to distinguish the last and say some similar cases based on the notion that the vehicle there were us safe unless they were misused in some way but that's exactly the situation here because what plaintiffs are saying they have mistakes and use their vehicles they have this they've been using their view and under their theory these vehicles become unsafe challenge is that something the district court could determine at this stage given the evidence before her determine what whether or not  not there had been a half or the potential to be hacked in the future well the law does that change hands case aides to the potential to be hacked in the future and points of sheer number claim that they were injured because of a potential risk of a future part of the bargain to begin with and you linked that to future hacking so maybe i misunderstood you yes and if i was misunderstood i apologize your honor in terms of the safety honour's as i've said is make this case just like last in which where the issue was my vehicles could have been made safer in some way by the addition of some additional components which i didn't bargain for the opponents like put have been injured by those component in terms of getting what i got working for i do want to just use the little remainder of my time to address the plaintiff's expert's arguments the survey that was conducted here and internet survey respon exercise rooted in the exact same speculation that the can court says a real injury illness can point to nothing in the real world show me that they suffer any injury relating to the purchase claims still alive against harmon and he was not a purchaser of one of the vehicles i think he's a good example of why there is a lack of standing he only least three of the vehicles he used them for the entire duration of the three years he testified that he considered them to be good transportation and safe and he returned them the last one he returned i was more than two years ago we think that's a prime example of someone who got what they bargained for who has no standing consistent with a can loss in decisions and frankly consistent with this court's decisions i think that this court's decisions in aqua dots and i think you are entirely consistent with the reasoning of the th circuit lays out in  we think that you know with respect to those issues we do think just to address some of the issues that were raised we do think this was a factual challenge we do think that the district court made several factual the actual determinations based on the record that w undisputed with respect to the lack of the hacking incidents with respect to the fact that none of the plaintiffs have experienced any defect they haven't had any manifestation of the defects and that's why we think that plenty of chief lack standing here as to harmon who was only a component part manufacturer of the you connect had units themselves now with respect to the plaintiffs proved that they put on at the district court they did not put the damages expert testimony at play it was certainly their duty to demonstrate that they had standing and we think that that is important in considering whether they've carried their burden but even if they were allowed to rely on that information i think dunn was just pointing out there were serious issues with the use of the conjoint analysis here and we've addressed that it certainly can sit in the briefing and it's certainly consistent with the jim ignition switch that says contrary to what mr polanski says conjoint analysis is not universally accepted all the time there are questions about whether it can be used in certain circumstances and there are certainly questions when it's not performed properly as was the case here because the supply side part of the equation was not adequately considered i want to touch just briefly on and less any question certainly on the standing issues i want to touch briefly on some of the issues that arise relating to the alternative routes for our firm it's i think we've already addressed in our in response to mr polanski supplemental already we think those issues are probably before the court we're not asking to alter the judgment the judgment here was a dismissal of prejudice and that's what with prejudice was mistaken she decided the case and standing grounds and so it should have been without prejudice dismissal so across appeal ordinarily would be required to bring up the merits arguments your honor with respect to that i guess two responses st there are cases where there's been dismissed outstanding with prejudice something this court has suggested it should be without prejudice but what it has said in the context of whether across a field required is what's in the judgement matters and here what the judgement was was a dismissal with prejudice i think a different rule that would require a cross appeal because even though you prevail you think that conceivably a court of appeals might say at some point time that the actual judgment should have been in this case without prejudice would agree with would result in a lot of people taking cautionary precautionary filings across appeals a lot of additional briefing i think that's unnecessary given what this court has set but more to the point your honor there are cases that didn't come up in the briefing because it wasn't raised until the supplemental already but there are cases from this court that have suggested that the failure to challenge whether the dismissal should have been with prejudice or without prejudice has been waived by the plaintiffs in this case because they never raised that issue below or with this court in their briefing so with respect to those issues one of which is actually  subject matter jurisdiction issue itself touch on those briefly there is the magazine most warranty at claim where the th circuit in the floyd decision is made quite clear that magnus and moss want the claim cannot proceed in federal court unless there are  hundred named plaintiffs we think the reasoning in the th circuit is sound and for that reason the magnusson must want to act claim should be dismissed even if it were permitted to proceed there is a serious notice issue there was no notice given here by mr ke until several months after the classification ruling and almost a week or so after he returned his last vehicle there is a split in authority on this issue but there are other cases even in the other and other judges from the southern district of illinois that  said if state law requires notice which michigan law does and we know that because judge reagan dismissed the michigan implied warranty claim it precisely because of that lack of notice and plaintiff have not challenge that decision on a we know that if it is if it magazine must warranty at claim it's connected to state law at the state bar claim fails the magnusson law for it to show up right you given the opportunity to cure after the class was certified even though you didn't have notice well your honor you the two of his vehicles are already been returned and the rd one was returned shortly thereafter i believe mr plaskett uses that phrase when he says when we got notice shortly after the class or vacations if so but i don't think that's the key this court has looked at whether you have an opportunity to cure in the piece and the interesting case i believe that they cited but in doing so they were applying a different state's law that does not require the notice it just says opportunity cure is sufficient michigan doesn't hold that and we know that from judge reagan's decision in this case i think the other just reasons for dismissal on the m c p a claim are clearly stated in the briefing and i see that my time has expired and the party finished up i have a question and obviously the cases that they rely on remand and the p f chang's case were cases that they discussed in their briefing it certainly wasn't new with authority and as i said there are cases suggesting that the if you don't challenge a dis prejudice that you can waive that so we think that this court can properly reach those issues because the court said in jones if you're not altering the judgment to not seeking to alter the judgment it's improper to file a challenging the failure to cross appeal in their opening brief that is what i was trying to say when i hadn't found a case within the circuit addressing that issue thank you  simply not correct safety is inherent in the market when it comes to these defects for vehicle we all know that anybody who's ever seen a car commercial knows that safety is a critical aspect up and as he had conducted a survey finding eighty that they could become dangerous that's not the case here the safety defects here go to the fundamental operational and safety functions of this product they are experienced in the benefit of the bargain in this case it is more like that person that that consumer would say i don't care i'm going to still buy this vehicle i'm going to pay the same amount despite the fact that these are serious safety defects that are pretty scary and i submit that that's exactly why the defendants never disclosed them to consumers because they knew that it would change consumer behavior they wouldn't buy the cars or they pay less and that the injury here is very much like the informational injury in the  robertson case roberts and the allied solutions one or two of the six hundred and ninety what this court found that the nine to someone an opportunity denying them information that would provide them with an opportunity to make an informed decision provide standing that's