please the court my name is ben thomas and i'm here today representing miss christine dunn sell your honors there are two main issues flagged in this rule twenty three opposition one is jurisdictional and then the other concerns the substance of the district court's order denying classification i'll jump right into the jurisdictional issue your honour's this case was filed in two thousand and sixteen in illinois state court at that time mr ansell a wedge a class of folks in a ffected by group pons conduct and limited her class to illinois residents there were no allegations in the complaint that limited class membership to citizens of any state the case proceeded for two years and went through discovery and then missed and cell moved the state court to certify a class and at that time she updated her class definition to come more in line with what the party's learned discovery about how group on software worked and back class definition still had a close connection to illinois because that's what on software request to the presence of any minimally diverse class plaintiffs all its gesture towards is the possibility of minimal diversity and under this court's precedent and the requirements of the class action fairness act that's just not enough for this court or the confer subject matter jurisdiction on the court by agreeing that one case that we cite primarily in our brief is the true on versus continental casually case and if you go back over that record you'll note that in that case that that was one where the plaintiff originally filed in federal court and the parties there also had an agreement in front of the district court that there was subject matter jurisdiction in the parties were minimally diverse but that didn't affect the this court's decision about whether or not there was jurisdiction in any way it seems like you would that it's possible that there are minimally diverse class plaintiffs here at the concession that your honor just referenced and group on site since opposition papers i think it goes to that stat both at the time the case which was originally filed with the residency limitation and at the time that classification was moved for with this effect of practical limitation there were the possibility of minimally diverse class plaintiff sure they exist when we say that also in our opening brief with this possibilities aren't enough if and again i'll go back to the law and case which i think is very on point here into law and again the plaintiff filed the case in federal court there were allegations in the complaints that said all right this is a this case is about these insurance policies that the defendant sold to class plaintiffs across the country they were authorized to be sold in thirty two different states it came out that there were one hundred and seventy thousand dollars some policies that issue and the plaintiffs concluded from those facts similar to what groupon come concludes here that there are minimally diverse plaintiffs but this court found that that wasn't enough and it was until the defendant came forward with actual diverse class plants that this court found that yes it has over the case if your assertion is correct could prove beyond cure that deficiency here by supplementing the record with one plaintiff who is minimally to st shot i mean the answer to that question is who knows i mean in their in their papers they say they don't have any evidence of it but they do have they could seek leave to supplement the record of filing method jurisdictional facts this court has discretion to allow that kind of amendment there was already a an order from this court directed at writing tons of jurisdictional statement pointing out that it wasn't enough they didn't come forward with any new evidence other than the fact that their software wasn't able to exclude non citizens of illinois when they collected info from you know members of this putative class and so your honest question is it's possible i don't know if they're going to be able to and i think that brings up another interesting point that the district court in particular requested more briefing on groupon raises briefly in its opposition papers and that is if the parties go to the step of conducting additional jurisdictional discovery whether that's before this court or whether this is on remand to the district court and groupon is able to meet its burden of identifying one minimally diverse class plaintiff that's a citizen of a state other than illinois or delaware then mr ansell had some options once you can raise a factual challenge if she wants to and to she can conduct her own jurisdictional discovery to show that just like in the in re sprint nextel case it was also in front of this court that remained is going to be required in any event under the class action fairness acts local controversy exception because again of this the close case that this the close connection that this case has to illinois and to that end i also think it's worth pointing out that group on states in its brief over and over again that is delusional to think that perhaps this class consists entirely of illinois citizens but i don't think it's delusional at all it's entirely possible because again if we look at the facts of this case and the huge way it's entirely possible that there isn't one minimally diverse plaintiff who who photograph was taken on instagram and post it on a group fund with a potentially worldwide class i think i think there's a distraction with the worldwide class if you could directly at your question let's say it's a that it's possible that there is a minimally diverse class plaintiff here but group one hasn't identified one but is it also possible that there isn't i think that's true and i think one place it's easy to get distracted is groupon points to that instagram is accessible worldwide and nationwide right it received a lot of photos as it put the software in top aeration but it's important to remember what photos those were right they were all photos taken at local illinois businesses to advertise those businesses the one example that we put i n our reply brief is a series of photos that groupon received that were taken at a haunted house in elgin illinois is a possible that someone from wisconsin came to that on a house just picture posted it to their instagram profile and i got swept up in this advertising scheme sure is it likely i wouldn't say so but the point at this at this juncture is that this court has said in the sprint nextel case that guesswork about jurisdictional facts just isn't sufficient to carry a party's burden under the class action having has been interims of possibility short of your answers remain the same if the if the key term is plausibility i i think for my part i think there's a bit of a fuzzy line between possibility implausibility but i think when we look at this court's precedent when we look at to law and and then we look at what groupon is alleged here the facts and so on the allegations that issued there there were much stronger here to give rise to a plausible inference of a minimally diverse class plaintiff so it is plausible that a non illinois non delaware citizen visiting chicago posted and take instagram photo at a business that ran a group deal i don't know that i would agree that it's possible your honor i do agree that's it's possible but again and under this court's precedent it's group rides burden to make that allegation they haven't made the allegation here so there's just no nothing that for this court to hang its jurisdictional had on a lot of cases go forward and reach the merits of this appeal is the class the class definition reads it's about photos and other instagram content that groupon used to advertise illinois businesses and those are illinois deals and therefore there is that connection against illinois but turning over to the substantive side of th is appeal i think there's really two ways to look at the to support order design classification and either way there was an abuse of discretion so the st has to do with the mechanics of the district court's decision under this court's precedent and bell castello and the supreme court's ruling in and jan it's clear that what the district court is required to do a classification is to look at the plaintiff's legal theory and make a determination as to whether that legal theory is supported by common evidence the merits of that legal theory are just off the table at class certification so to the extent it just support denies class certification by either rejecting a theory outright or by pointing to other theories under which individual evidence might be required that's an abuse of discretion and in castello i think there's a pretty good fact pattern that that works and here they're there to support den class certification because the plaintiffs in that case wanted to proceed on a class basis under one of three prongs and an illinois wage act that this report pointed out that well if the plaintiffs fail under that problem one individual plaintiffs still might be able to proceed under prongs one or prongs two which would require individualized evidence and refuse to certify for that reason but this court looked at that decision said no what the district court has to do is to  mine the plaintiff's legal theory determine whether it's supported by common evidence and if it is the class should be certified even if failure on that theory might result in individual cases later the point being that proceeding on a class basis on the pla you lost at summary judgment on that with the individual plaintiffs still be able to pursue their individual cases here on their individual identity that i think the answer is yes and then how can you proceed under why with the class question here i think bell answer is that directly so in bell there was a the plaintiff's class theory depended on unofficial with time policy the court noted that if the plaintiff succeed in that theory everyone would win all at once if they failed on that theory all the class plaintiffs would fail in that theory all at once and the defendant wouldn't face that theory on the merits that class certification instead of certifying and then deciding that as to all the class members later so if the if this court didn't reverse in the case went forward individually then every single member of the class could again bring that same username through that mist and sell went forward on and other judges would have to decide ok do i think that falls under the i or p a's definition of identity or it doesn't and there could even be subsequent class claims potentially on that same issue but that wouldn't happen if this court followed the precedent set by bell and costello which says that no if the theory is supported by common evidence it should be certified as a class american decision can be reached and then there would be a binding judgment on those class members in their individual claims should any be followed or should any follow the case and then apart from this issue about whether or not to just record  and appropriately address the merits of mr outsells claim i was to think that to the extent of was allowed to address that claim it justs its analysis in supported by the text or purpose of the illinois right of publicity what the individuals behind usernames were behind the photos and that's not something that the p a requires all the i r p a requires is that was it that they would actually know all that particular individual or that they would be able to identify to that evidence presented at trial that it was that particular individual i think it's more the thing like the latter the latter it wouldn't have to be a michael jordan figure who everyone but identify it could though as long as the evidence linked up to establish that that was changed does identity yeah i think that's exactly right i think it's helpful here to look to try and think about what a trial would look like and then  it was a trial in a class basis what the claims process might look like right so mr ansell would go before a jury she would say this was my user name the meow christine username i was the only person that used that user name at the time that it appeared in group pons advertising based on how instagram's registration process worked there can be only one user name associated with one individual and based on that evidence alone a jury could conclude that yes a reasonable viewer of the website would understand those facts and that because that's just dense cells username that's not in contest here she's proven identity then we came time to for class members to prove their claims they could just submit an affidavit swearing under penalty of perjury that yes i controlled user name x at the time that groupon used it in advertising and because of this uniqueness this one to one relationship between usernames and users there's no other evidence that's needed to prove up a class members claim and the contents of each of those user names just doesn't matter all that doesn't matter for the purposes of the eye or p s a for these usernames to be identifying attributes is that they are unique much like a signature or a voice but how do you respond to her response string the deposition that could be someone that's not her and you got the philly cheese meow christine you've got the ukulele playing christine how how  the identity analysis factor into shore so i again i don't think so one thing the group on pointed out right was that people don't generally know christine dance all by her instagram username on a day to day basis but i think what people generally recognizes how usernames work right everyone has an email address everyone that's going to be viewing group plans website the average viewer of group primes website is going to have an email address and everyone understands that when someone receives an e mail coming from my e mail address they understand that that's an email coming from one distinct person you know it's a it's a username it's a unique username and so again all the understand cell has to show to prevail under the i r p a is that i controlled this username at the time it was used by groupon and its advertising and that's it there's no additional requirements that oh and by the way my friends know me as i would be a subjective standard which is not something that the r p m looks that rather she just has  good morning and may i please the court i'll start with jurisdiction because that's where my my colleague started there's no real issue presented here as to the court's jurisdiction a jurisdictional argument would require arguing that there is no  minimal diversity in this case but the plaintiff has conceded that and more importantly the plaintiff has conceded the facts underlying that question i certainly agree that the parties can't create jurisdiction through concession but a party and particularly a plaintiff who crafted a class definition and is the proponent of a class can make concessions factual consent about who is and who is not in the class that they are p really were a jurisdictional problem would be a remained to the district court and that would be appropriate simply because the issue of citizenship was a contested in the district court so we would need the opportunity to put on evidence to challenge what the plaintiffs have contested in this court's cases make clear that we don't have an evidentiary burden unless the plaintiffs contest the fact and we could go back and hire a private investigator or something like that and identify forty four we get st of all we need to find a username that was actually the name right so as i'll get to in a moment user names are often fictitious they're often designed to obscure the identity of the person using the username so you can't just look at the user name and know who it that's of course the point where making on the classification issue but could we identify a specific human and hire a private investigator and figure out whether they were citizens yes we could do that and we would do it  quoting the fact that the class in the subclass may include non illinois residents in the district court in support of her motion to remain and in her brief she said to be clear the plaintiff does not contest the kappas requirement of minimal diversity is satisfied in the reply supporting the motion to remain and the plaintiff wrote students at illinois colleges and military personnel stationed in the state are just two examples of groups l to contain class members who are not also illinois citizens and on appeal you heard my colleague say he didn't want to concede that it was probable or anything other than possible that the class included in illinois resident but it's in his appeal brief he wrote it's likely likely that at least some instagram content giving rise to class membership was posted to instagram by non illinois citizens such as college students  members of the military and that doesn't even account for tourists or people from just over the border we've got cities in illinois that spanned that span state border st louis beloit is chicago where if there's a business in those states on the illinois side it's it's as the plaintiff conceived likely that there would be people posting instagram content that's geo located to those locations even if they themselves  how do we get around miller versus southwest airlines the recent case from this circuit where the court pointed out that it was pretty obvious they could meet minimal diversity but they had alleged for some reason the court says they hadn't alleged it in the notice of removal but the court didn't need to worry about it or send it back to the district court to make that determination because they ultimate concluded there was federal question tourist action because here the under underlying fact is conceded that's that's the difference so it's not just a question of quality of allegations here the plaintiff the proponent of the class the drafter of the class definition concedes that it is likely that the class includes people who are not citizens of illinois and that's what distinguishes the case of course and miller the court concluded that the remedy if there is a problem  send it back to my support but that's just not necessary here because the underlying fact is conceded so the other issues that were raised on appeal relating to jurisdiction are jurisdictional issues at all they are process issues and they aren't appropriate in a twenty three f appeal which is why it was striking to see them so prominently in the brief when they were not in the petition for review under twenty three so turning to the classification issue itself the district court here did exactly what this court's cases require it looked at the legal elements of a claim under the illinois right of publicity act and evaluated whether those elements could be satisfied using common prove the question under the statute just looking at its plain language is whether the attribute in question here that would be the username serves to identify the specific human being behind that username to an ordinary and reasonable viewer and the answer to that question is no you cannot evaluate that question based on common evidence and they're not saying just to get it to clarify what came up before you're not saying that that individual has to be a michael jordan type figure now are some person who's well known no you just have to be able to link it up that it is that particular individual whether it's jane doe or it somebody else correct  and a specific human not just any human but a specific human because of that individual caressed and jackley and it uses that phrase that individual's both in the provision of the definition of individual i'm sorry both in the definition of identity and in the definition of name so we are talking about some attribute that identifies a specific human being and i read in the in the in reply brief she tries to suggest that it's enough that we can assume that a human being was behind a user name and that's not what the statute says it says that individual a specific human and by the way it's not even clear that we that a spit a human being is behind a user name at all and that's part of why the court denied classification usernames why couldn't that be addressed through affidavits as counsel proposed because it goes to the elements of the of the claim it's not just a matter of damages it's not it's it goes to the fundamental issue whether a whether a username identifies a specific human being is a factual issue and of course it could it could identify specific human some user names or names or the same name that you would use in your ordinary life sometimes user names are famous people sometimes they're not sometimes it would be my username could be and then that might identify me but usernames might also be fictitious they might be specific in the evidence there was a lot of evidence in the record on this issue usernames maybe some fictitious pacifically designed to obscure the need to provide a name and e mail address and that's it nothing else you can use instagram anonymously the owner of the user of the user username in instagram may not be a natural person at all it could be business could be a team or an organization could be a russian but there are lots of different ways that this can happen the most we can say is the a user name identifies an instagram account for a period of time because of course you specific natural person has that has that right now again is it possible that a user name could identify a specific person of course but it's an individual issue it will require a trial it would require specific evidence about that username about the person etc it can't be resolved on a class wide basis and that's the basis for the judge's decision denying class or vacation this this identification piece is very critical given the purpose of a right of publicity statute like the one in illinois and that is that the the underlying issue is to protect people from a use of their identity that creates the impression that that particular human being is divorces or appears to endorse a product so if meow christine doesn't identify a specific human and we submit it doesn't there's no risk that anyone would believe that christine den sell indorsed philly cheese it could be philly also we're talking about a class that's defined so broadly that there might have been a username that was actually fairly g s in disguise to advocate for its own or indorse its own product might have been a baseball team who had a an event at philly g s and posted content that was geo this case that the other elements of classification including commercial use and consent are things that the court did not reach but would need to before certifying the class here the identity i think your honour's just two quick points under the jurisdictional discussion your honour's had with council her main point was that the concession here wasn't to dick it wasn't a legal concession that the court had has subject matter jurisdiction as a factual conduct concession and i think it's important here to look what kind of factual concessions are possible in this case and i think that's evident and groupon is notice of removal because as counsel said standing up here a nd ago all group ons stated was that it was possible or likely or undoubtable that class plaintiffs exists and stencil can agree that's the case but even if that's true that only means it's possible it's likely you to go back to judge brown and again i don't i don't think it's it's possible i do think it's possible how is it possible but not plausible even if even if that's what rule eight requires applies ability right and i think your honor i know what you're pushing back eged in the notice of removal or anywhere else for example that this class includes at least one person from the state and that's a citizen of the state of wisconsin and stencil agreed to that fact that i agree that there would be no issue here there are two parties the allegations would be enough to satisfy this court's requirement requirement for minimal diversity but we don't have anything like that here so i don't think the court can find that has subject matter jurisdiction at this point and not all just again it goes back to sprint nextel guesswork is not enough that the nd point i just wanted to bring up is group on here in response to your honor's question stated that no it's not saying that you need to be a celebrity to possibly maintain a claim under the i r p a whether it's for user names names voices signatures anything else are those individuals who are generally recognized by the public at large morgan freeman voice or johnny carson types of information like instagram user names that have this one to one relationship between identifier the attributes that are protected and individuals and that's why this case i should go for the class they