ok i'm reading into it here under the crimes of the telephone consumer protection act let me i think we're familiar with the record in this case me ask you this mr not my right on that i don't think the record is clear on that but it least i want to ask you about typicality here it seems to me there's at least three types of people in this class  or one of the people who read the advertisement which told them what would happen called the lie heard that made ambo and then later got these messages you know people who didn't read the advertisement but called the line and and got these unwanted circles and lot of text messages and then there's mr gannon who seems to be to be fairly unique in terms of his situation which is that he stopped right away and  asked all of them the question is whether there's express consent and there's different arguments s t h your position is does not express consent as to anyone in you may be right but but the other side argues that there is why is your client typical of a class because he doesn't have to fences against the rest of the class successful or unsuccessful that don't exist with respect to your client well your honor i think that he the fact that there aren't any defense at all but they've got defenses as to these other people they may turn out to be not good defenses you know if these people brought claims that a court might say this is an sca express consent it's simply implied consent but they're different and so it's why you see it was he the right class representative for a class of people who are very differently situated well you're i think that argument would be inferring an argument that it's that he would not satisfy typicality which is not something that just a court found right but we can we can deal on the basis of the record understood but the that argument i think would work a lot better if mr gannon were subject to unique defenses that other class members were not subject to because then you would be in a situation where the the the court be faced with potentially prejudic other class members on the basis of a flawed why do you think yours advocate against those other defenses that don't apply to him well your honor i think that the the well the in terms of whether or not he's going to be a vigorous advocate on behalf of people who don't have the or who are subject to those defenses doesn't strike me as the a really a typicality argument about the adequacy you have maybe it's inadequa argument but here's my problem as to almost everybody else in the class i think mr again is in the rather unique situation which is that he called the wrong number apparently resteal edges and he did everybody else in the class there's some argument about consent i don't know how many people there are that the thousands of people that are alleged class there's some argument about consent in his case there doesn't seem to be any argument about consent and so why why does he weighs an adequate representative of people for whom the only issue in the case will be consent well your honor i mean i i don't think that the defendants have conceded that that they do not have a consent defense no no  the defendants believe they do have a consent defense that that would be the essential issue with respect to what everybody else in the class but not your client but it just seems that you have to make an individualized question regarding the consent i mean how can like be  sure that some of the folks who heard the recording or read the printed ad did not want to receive the messages found and yet there you are their subjective intent about what they wanted is not the test for determining  express prior express consent as as is required under the t c p a it just seems like every case is different they have to you've got to answer the question individually on express consent all of the case there  been a number of cases that have have articulated that basic idea because there is there are as there are diverse ways in which consent may have been obtained that we're not going to certify a class but those cases are different than this case and the reason is because in each of those cases there was an actual affirmative act on behalf at least of some even the plaintiffs or the class members that communicated that expressly communicated their order which is has been quoted in its paragraph thirty one of that order in particular that it's stated that we're if we're going to find that we have the f c c are interpreting think whether you do or not we still went and the reason is because under the same paragraph thirty one they said yes if you provide if you knowingly provide your telephone most members of the class did translated to provide willingly providing their telephone number your contention is that it's not is that issue will have to be litigated i sake and that's why i wonder about your client  an appropriate representative but my question is is there any case that deals with this precise situation i do not think there is your i couldn't find it in the get the list where would you  these people might have wanted to tax right and they wouldn't be proper people in your class they may have a they may have had a subjective intent to want to receive a text that is certainly possible but in no case did they did they provide that they take an affirmative act that communicated their telephone number within the meaning but that's that's the question isn't it and what you've told me is that it's no case that that you extrapolate from the f ruling i was trying to find a case but i think last week it was one of the supplemental citations since we spoke earlier today judge reallocating to the opposite conclusion in a case that seemed pretty closely on point so my point is without regard to who's right or wrong that's an issue that was going to be hotly contested and it is it is your honor and it's going to pay back to my original point was your client for whom that is not an issue and he does no indication that he consented in any way why is that why is your client an adequate class representative for all the other folks who are going to have to litigate the question of express concern well you know he he stepped up to and agreed to serve as a class represent adequacy when the class representative is subject to unique defenses not the only way around this commonality here too i mean i know that he has the same claim as everybody else but there are different defenses does that does that number of common questions and a whole bunch of different answers that we need to come we need you can't have a you know if you had twenty common questions and people answered them that would defeat commonality i would think right but th t what is the common question what is a common question what question frame the question that this that would could be answered and then handle this class the the defendant network telephone services hotly contested here the common question is was there for but was did any of the class members provide prior prior consent express the question is was there prior express consent right if that would answer it for everyone but but what i'm saying is it seems like you've got all you'd have to at in every case look at it and see whether there was prior express consent you know there i mean because these people there's so many different ways that people could get the answer before they get get the tax i disagree respectfully under this we have the one we have the defendant here i mean  your client here yes he called them and he accidentally called the number like we've all called an eight hundred number and we go whoa i wasn't calling that place you know you get off one number and you can go and and right but even for the person who who read the ad and saw they did not provide express or express consent under the both the f c c one thousand nine hundred two order as as it is written because it explicitly states while providing honor because again even for people who read even for people who read an ad and call that number in red you know a red ad that said call now and get a text message all they did was call the telephone number they never punched in their own telephone number they never provided their telephone number to into yes in the active in the mere act of calling if you allow n t s in this case to say merely by calling us that's enough of a expression of consent you're you are disregarding entirely the f c c the second half of paragraph one of the one thousand nine hundred two f c c order which says really clearly that you're not going to get consent if you're all you're doing is capturing the telephone number for somebody that called you there's going to have to be something more express more explicit some further affirmative act beyond the mere fact that i called you for for there to be an objective lee but if you could show that they read something before and they read it and then called happy express consent no your honor not under any case yes and not under the under the under the clear wording of the f c c order it's not and that's the issue  that we're presenting on this appeal because the court made that determination but if if you were to have properly analyze this case and said fine we'll certify the class and we'll litigate the consent to shew and and you look at the wording of the ad that's been put in front of you here many people do you have in your class right now there would be approximately three point seven million class members in this case because that's the whole estate turned over to you right correct that's correct there are some people in there that don't belong and there isn't this kind of a wal mart situation now but your honor because in wal mart every single every single person actually literally told the clerk at the valmont drugstore i think it was that the here's my cell phone number they gave it to them nobody did that here not a single person in every case here the way they n t s got the telephone number was by capturing it they've conceded that and connect i ask you but i know your time has run down i want to ask you a question i've read the f c c order can you point to me where in the statute they were just press consent or it's just it's it's intersection to two to seven i want to say it's subsection b and it's it's and there is no way that you can read the bill of the five words in this print advertisement and conclude from that that that the scenario that n t s has laid out here constitutes  expression of concern that it could it is at best an ambiguous and i mean we have the many we have so many cases which really surprised me that today but to the best of my understanding none of those people have been called to determine whether or not they would participate any of them would be interested in participating it's there's quite a large number of telephone numbers you sides right there's nothing in the ad and nothing in in even the preamp mid ambled that identifies n t s as the party receiving consent and likewise there's nothing on the well you wouldn't be a very different case even absent the identification  of the party if the if the phone call said if you want to receive future communications from us please state your phone number exactly that would you argue that even the absent is not the absence of identification of the party that you're hanging your hat on it's the thousand telephone numbers out there anyway it's extraordinary because almost nobody like your client calls this line by mistake that's does so with extraordinary similarly forty five million people who want to hear these messages it's not  always want to call this phone you know we don't honestly we don't know that i mean we have no information in this record about how many of these people signed up to become customers or did business with him at all and he has put in the record a kind of slippery statistic about how well based on these three point seven million three point six million numbers we got back another six plus million  they wouldn't even know your honor because because of network telephone services nowhere was identified in any of this any of this advertising or the preamble they would they would know who they were dealing with which also explains why there wasn't any mention of our plant client in the complaint having made a call the first in the first place because he had heard of us filing this lawsuit we had no idea why he was getting these messages obviously they charge by the  good morning your honour's morning benjamin chef of minette phelps and phillips for defendants and apple e's network telephone services the question is did the district court abuse its discretion in denying class certification and the answer of course is no because there are all kinds of problems with this class this proposed class there typicality problems adequacy problems and particularly problems with commonality because  the right that's correct the trial judge never even needed to get there because whether you needed to or not he didn't do he did he did not he did not get there you are certainly free to do so and we've made those arguments and worries me let me rephrase your potence arguments if you can respond to it he says the f c c says you've got to have prior express consent and this is an easy case because there's no express consent from anyone in the class if he defines the classes those people who simply call the number and got texts in return what your answer to that prior express consent is the language in the statute and here anyone who saw the advertising and the advertising  your honor it's expressed because the customer has to affirmatively dial the numbers if you see an ad that says call this number and we'll send you a text and you say ok i'll call the number and then attacks the sent to you you can say oh my goodness i didn't want that tax that makes no sense the prior express consent isn't calling the number when you know that doing so will result in a text message back to you that's what about those who didn't read the ad well then how did they get the phone number well who knows i mean how do people get these phone numbers so your friend comes over and says hey i got a great line for you call one eight hundred one hundred text sex and he he calls a number didn't read did how does he put provided prior express consent by failing to act well that's you know that's definitely a hypothetical beyond the the w you affirmatively opt out right right how is that prior express consent i don't think there is prior express consent if somebody calls a number and doesn't know what they're calling but of course that's not this business this should be no one is calling but you may not know that most people call know what they're doing and they want it and they're off outs then provided so that if somebody is in the unfortunate situation of mistakenly dialing one of those numbers it's very easy to just press stop or do any of the means of offing out doubt you can you can opt out of the record reflects or yeah there are a bunch of ways you can opt out by if a text comes into you and you don't like it you can taste text back sock if you're on the phone line and you hear the preamble i think you can press nine and then pound and then that that cuts you off and then there's also the address and the contact information and your company is available you can call them and say please so there are lots of ways of of opting out but there are many millions of customers of the of this service  statistically call more than once i mean these are not mistakes these are happy customers who are can you be happy customers don't be entitled to t c p a statutory damages well we don't think it's not it's not the nature of your pleasure that we measure it it's whether you consented right that's right and but the point is that prior express consent arises from knowingly providing your phone number and in these instances if you see an ad that says call and get a taxed and you call and get a ten point is that you have been the second call could be a violation well certainly certainly not certainly not that point you know what you're doing but but but even even the first call because everybody knows that when you call a number that says we're go text you that you have given them your phone number that's how they text you back the the pi's that case which you mentioned that was just put on westlaw this week is a perfect example   but but my point is that calling wonder those circumstances is expressed in yes that's correct i mean after him began as a banking firm we've expanded when he passed away but we still do plenty of banking work but we also engage in other other federal claims such as the c p a claims and of course this case is not your typical what was  regulation the problem with that guidance is that in one thousand nine hundred two cell phones look like bricks and nobody was text messaging and the whole idea that if you just color stuff and get it through recorded messages exactly the point of that capture language was you didn't want to call your department store to find out what time they closed and then suddenly for the rest of time get robo calls back from them on all sorts of offers and things that you don't care about so that sort of capturing what you didn't know would happen and then the response of calls that that's what the people wanted and this was an issue simply a legal issue that the judge could dispose of quickly he might grant summary judgment i guess the problem is you can't grant summary judgment your favor as to mr gannon be any i mean if if it's truly a mistake then the act provides for five hundred dollars damages and that's the end of it but what the plaintiffs are doing is trying to make this a five billion dollar case by saying that every person who was ever tested by n t s never express consent issue because the vast majority of people who call probably ninety nine point nine percent know what they're doing and they if they're calling because they've seen the advertising i mean this whole business is about making telephone calls and so  way you would be able to ascertain that was you'd have to call all the people to find out how they got involved are all right that that was about the manageability problem how do you have this class of all these class members if you call them and say did you see the ad is that why you call did you know that you would be getting a text message when you saw the ad that said we they would be sending you attack and you could text them yeah and that's correct that we don't have the names we only have the phone numbers so what what what common question did you when you text or call the recipient now has your number and particularly in the in the in the advertising context if you're asking for something and then you get it you don't have any complaint about  that and in fact under the most current f c c regulations that's not even deemed advertising that's just customer fulfillment if somebody asks for something and gets it that they certainly have no gripe that they didn't give consent to get what they ask for so your honor a judge progress and you're right this is it's a whole new world out there and this is an area where technology in telecommunications has surpassed some of the the the legal precedent out there but as this court has made clear courts are supposed to apply common sense in these cases that's the cheeseburger over says best by case because there are so many unusual circumstances are different factual circumstances and if you apply common sense to this case there are people who saw the ad and and affirmatively responded and got a text message and by calling that's giving prior express consent so there's no class here if somebody wants to have a one off claim for a mistrial they're free to do that but there's no way to to derive a class out of this