good morning they please the court my name is stuart altman i represent chan conrad i guess this was another one of those cases you previously mentioned which is on the quote cutting edge of the issues here about pointers i hope i can convince you that it's not on the cutting edge and well here's my problem with your case i mean obviously everyone has different facts and everyone comes up with a little bit different situation but it does seem like the people who are challenging this a solo remedy have been out there for quite a while and there's been this class action in case and i'm just not sure what we're here for i mean what you know what mr conrad would add to this what discovery would reveal what you think is going to happen i tell him to take your which is subtle and subtle for a class period that ended july twenty seventh two thousand and twelve twelve frank yes there were really no labeling trains as whatsoever of the key representations the representation as been in the challenge reputation the representation has been the same from the beginning to today and that is that a civil provides relief of flu like symptoms solomon settled a case on a nationwide basis that ended in july twenty seventh two thousand and twelve mr conrad filed a case seeking a class for purchasers subsequent to july twenty seventh two thousand and twelve are both in illinois and on a multi state basis so those people are were injured and they're continuing to be injured by what we can tend to be the sale of a sugar pill as a flu remedy so there is something that's going on here just because and the california litigation really only involves a very small about one year class here the court sort of fight a very very limited class very small period maybe a year year and a half so the the fraud case here is substantive there's nothing that has the same fraud joe s and i guess in this instance we have  with respect to class certification we have a question whether mr conrad would be an adequate representative of the class given the offer an accepted i understand this is the same an issue we've been talking about but the unaccepted offer represented by the rule fifty rule sixty seven to positive the five thousand and twenty five dollars which does sound like much more these pill bottles cost about twenty dollars a piece for like twelve go says according to the picture that you had in the appendix so the district court doesn't actually say is no standing or anything it's really more you're not an adequate class representative well i thought i read there were two series of orders around or the first order was the judge's order of the first dismissal order in which he did one thing right he sustained the plaintiff's claim he said the plaintiff's state of the valid claim for consumer fraud what the judge did in that particular order was find him to be in adequate class represented right right because he rejected an earlier offer of a what was purportedly a rule sixty eight offer  saying the grice case you can't persist in suing after you've won well of course i mean that but that's of course you know the chicken before the egg he had brought a class action he was seeking class action status the judge sustained his consumer fraud claim and then said i'm striking your class allegations because you were offered to settle and you rejected it and therefore you're an inadequate class representative that was the first were we attempted to add him to another case that was pending and instead decided to just read a file file a new case before we filed that case your honor the defendants presented us with a begin with which was a little odd and that was the a mix of his refusal to accept that whatever you want to call it rule sixty eight offer or just a pre litigation offer was the basis upon which judge hart in his first offer as first order ruled that he was an inadequate class representative now do you think judge hart might have meant i mean you make much of the idea that gee you know if you're really trying to hang in there and represent a class that doesn't make you inadequate all right but if if what judge hart was really saying is your least no longer have any live to spew with the defendant then that would make you a typical it seems to me at a minimum if there are lots of other people out there who actually do still have a live to spew with the defendant that why would you pick the one person who has resolved everything well i mean that that begs the whole question that's why we're here which is really on whether or not you can pick up you know that it's can can a defendant somehow pick off in this way i say not resolved i say under chapman and under campbell you all that's very clear the answer is no because he didn't accept the offer so he has a life of controversy it's clear under he is either on the chapman or can believe what we can take whichever passages we want to choose he didn't accept the offer therefore he has a life claim he has a life claim not only for his individual damages he has a life playing for a class action that he is seeking and he has a life playing for injunctive relief which i also would like to take some of my time to discuss your honor ok but but i certainly don't want to set you off and if you have a further questions the fact is is that he rejected that offer it was his right to reject that offer and there was there his case at that one time wasn't mooted and now we come back to the point where the judge  this claim but then says i'm going to entertain a deposit of sun's motion and it's on the basis of the deposit of funds that somehow moves this case and i know we all know that judge ginsburg well there's that cryptic little lilt little cry toward the end of campbell evolve which will eventually become clarified i'm sure maybe but right now that that cryptic comment is that the court didn't discuss that it didn't rule out one way or the other so therefore in this circuit chapman is still good law and chapman is very clear and on except the offer of settlement does not moo a case so here we have this odd procedural device and that's all it is sixty seven i took a look at it yesterday again there are no rules sixty seven is just a procedure to posit funds there's nothing  sixty seven this says when those funds are deposited obeid the way the case is moot of cases over your claims are dismissed there's nothing in there at least that i saw i looked at the annotations i couldn't find anything it's just merely a procedure it was an it's a procedure that i believe was adopted from common law to if somebody wants to the possum money in the courts registry the fact the matter is is that how they act and act the positing some funds somewhere which is the same offer as they offered free litigation which you rejected how does that somehow transform it into something in which they just record can force a party to accept well there actually is statute state rule sixty seven particular procedure to be excepted acceptable then there will be no class actions because it's an open it's it's it's just you could do that in every case you do in every case and that means well there's no rule twenty so the point here is not to believe me if we were allowed to proceed under you know with with a fair hearing on classification this is a clear clear cut consumer fraud class action it paradigm for this court has recognized these types of small claims excuse me large aggregate consumer fraud cases where there is uniform representations and clearly selling sugar for flu remedies i think we can see a priority is going to be a predominantly factual and legal question that should promenade to class we didn't have an opportunity present at all because the judge got it short with his adequacy ruling real quick incident to the for the successful result on a damages claim the court in its discretion can decide to enjoin the conduct that has been proven to be a violation so the the legal issue i'll spare you elaborate on this we're familiar with the legal issue which is really in some sense do you need to show separate article three standing for each element of the remedy or is it enough once you've got your standing for the damages  if there is in fact anything in this particular case incidental and you know we are not free to say that a state statute overrides article three you will agree i would say the state statute could not overrule article three however it is not an article three issue because even if we had not requested injunctive relief even if all we had done was pursued the plaintiff's individual damages  individual members claim the the option of injunctive relief still remains because the only legislature provided in section ten i think that the lower courts which this district court is serving us in the erie a lower illinois state court the lower courts have the discretion on their own to entertain the possibility even just there is a live claim that i will like i will let you take your last minute for rebuttal ok thank you very much honor sure miss corporate unseeable us angelus but the lashon if you wouldn't i mean it's a little weird if you've got standing for damages the case is going to go forward and then it's going to reach a point where maybe somebody asks for an injunction and of course at that point if there is no adversity with respect to the potential injunctive relief you know you're not going to violate the law again you're not going to speed again in los angeles you're not going to  ever you know make the mistake of buying a civil war again or or whatever i mean there are going to be situations where the judge is going to say in keeping with these things i don't have the right predicate for an injunction relief right now but it's not the kind of thing that you chop off at the very front of the law suit for all i know there might be some reason sometimes to have an injunction conjunction with this kind of consumer fraud case and other kinds times not maybe an injunction that says change your label so the you know in the future i won't be misled by some aspect of your disagreeing with that when you reach it i mean the whole case is going to go forward because if you're chopping up really you know damage is pacific performance injunction and this and that all these different remedies you're not going to decide in advance of knowing the facts for example for some things whether there is still some live injury that the plaintiff before the court has that would be suitable for injunction really so it's a good timing point that i'm getting so i think the timing point is very important in a case where it's not clear from the allegations whether the plaintiff is always to be able to prove that everybody's changed well you know in consumer cases you know fool me once shame on you you know it's separate not that you know you're just saying well course you know nobody's going to buy a solo again or nobody's going to buy nobody's we're going to homeopathic store again and that seems a little facile to me so there are a number of consumer fraud cases where you would be able to show  future risk of injury levy causes a case that started in the briefs where there was deceptive advertising of retail prices and sale prices and so under that circumstance the plaintive might have an interest in going back to the store to read so that so what we're talking about here is a much narrower category of cases where the plaintiffs actually alleging that the product is worthless and that they have no intention of purchasing it again and that is clear from the complaint it's clear in the face of the complaint and even in the brief on page thirty t plaintiff concedes that so this is not a case where we need to continue in order to figure out whether the plaintiff has the standing to bring the claims that's clear on the face of the complaint and so you know and i think because of the cases i've forward because you have already received those funds back however your due process claim can that that you cannot get classification where you don't have standing for that claim initially so that's i think exactly on point as well but i will say even if this court iran makes in hard for consumers to discover their right to a refund or if the product is essentially suit and they were in entered and nationwide passed sentiment that provided for a fourteen day refund period looked like a terrible settlement to me because obviously enough the only way you could find the resigned procedure was by going on boron's web site and you had to have tremendous jockey mentation that people normally don't keep the u p c code their receipt this and that and you required them to wri in for the refund you didn't have once you were on the web site there wasn't any kind of electronic website based form to fill out so we live in a world where people don't even know what a stamp is so the fact that that this wasn't getting all the information to then they have to fill out a separate piece of paper find an envelope put it in an envelope and mail it to boyer and right so this was the yes just a u p c code never see there is a you know a declaration that's con spice president explaining that they have been granting these refund requests even beyond the fourteen day period any time there's a request from a store and i will grant them as long as that there's no it doesn't appear fraudulent they are breaching the granting those and so this brings us to aqua dots which was a similar situation and i thought i'd see the defendant had offered to replace the defective product i had not advertised and he sort of refined but it was uncontested that they were regularly grants and refunds to anyone who requested them the district court explained that the plaintiffs might claim that they were unaware of the possibility of a refund but they knew from the circumstances that council was aware and they had specifically instructed plea to not to ask for a refund and so that's what the district court was looking at here when it reached the classification decision that might be helpful to go over the timing of the class certification as you pointed out discovery had been done that was all they did we had said they filed the placeholder now this is all unfortunate that one has to do this because rule twenty three requires a decision of class certification only at the early as practicable time not anymore used to say earliest possible time but it doesn't anymore and the supreme court has required more and more and more information to back up a class or order so you really can't ask at the day of filing you've got to do discovery and in this instance when you intersect that with attempts to pick off couple months later in april the parties agreed to the court made a discovery discovery was for it under schedule an order in the lower case not long after that the district court decides to stay this case in order to see what the  twenty fifteen at this point she has decided discovery is completed we file a motion to dismiss what we raised in trying to claim a number of things including inadequacy under what us again which we had raised a year and a half earlier we based on the briefing on the gucci settlement the court felt comfortable turning at that point that mr conrad was an adequate representative and so this is not a pick up case it's because case it's a case where the defendant was already agreed to a nationwide settlement and mr kind of simply seeking out a copy cat suit that is not it was for a period of time after the class closed in the glitchy case yes but only the years after actually so by that time there was a court of her staff to enter judgment in the plaintiff's favor reading judge hard order it seems this if he was under the impression that the sixty seven deposit we still have to answer the question judge drove her ask which is whether this rule sixty seven deposit has any effect on its own whether the court needs to make some ruling on the  different thing i don't know under illinois law and there's a difference between handing over the cash and handing over check that we can't take back both have the scene effect and that the money is no longer ours is there for mr conrad ok thinking further i will try to talk fast since i think i only have a minute you have a minute ok first your comment about that there was more information the marketplace after the settlement has controverted by the actual record in the gucci settlement at the very top of the notice to the class the defendants the nine any wrongdoing they they completely deny that they committed fraud the labeling of say the same from the beginning of time until today as to the class action that we had an opportunity judge hart entered and continued our class certification motion and then out of the blue in the motion to dismiss he decides that these are the strike the class allegations without any fair opportunity to present the class certification and then aqua duc i could gots more importantly was in effect of recall were out of a million toy sold five hundred to six hundred thousand to recall and more importantly the defendant it greed to be enjoin