they please the court good morning brant cohen appearing on behalf of helen sinclair oil corporation with the court's permission i'd like to reserve ten ten minutes of my time for rebuttal good luck  the district court erred in granting summary judgment against sinclair summary judgment was based on the release approved as part of the ny mex class action settlement and the district court's determination of the existence of an identical factual predicate between the nymex case and sinclair's there is no identical factual predicate and imax claims are rose exclusively from and were limited to the manipulation of natural gas futures and options contracts traded on the nymex this is contrast you could couldn't couldn't a release let's assume that i've been sued by a competitor in some sort of business relationship and a competitor say and i say to the competitor i'm willing to settle this but i want to make sure you don't have any other claims against me so i'm only willing to pay this pay you for this one if you release any claims you may have against me any and all claims generally he's released could do that could it not i think a release could do that your honor why didn't the release in this case to be without an identical factual here now you're telling me i can't do the words let's assume there's a lawsuit against me for trade for trademark infringement by one of my competitors and i say i'm willing to settle this case but only if you give me a total and complete release of any other claims you might have against me without regard to their factual predicate i'm not let's get to a moment what this release actually says i'm just asking a hypothetical i don't understand why under that circumstance we need to have an identical factual predicate doing i think that the reason that you need to have a five identical factual predicate is because it has the versus sprint corp tells you that you must that is the precedent in the circuit and i think i did yeah i'm asking you whether that precedent really means that i can't seek a general release from somebody once he begins mitigation against me is there a different rule for class actions than there is for individual that what you're saying i believe that there is your honor but we've only seen this issue addressed in the context of class action cases yeah and it may well be that inquest action cases and general release is not appropriate that's what i'm trying to focus on is yours and your argument a class action argument or a i think that under these circumstances in a class action setting the release without an identical factual predicate is not operative now you making this case to sort of conflicting arguments one in your motion for some reversal where you say we ought to rely on the farmland case and find if there was an identical factual predicate whether it's law in the case or precedent or whatever and therefore you should win in your papers you say the release doesn't even cover this because contrary to farmland the release doesn't you say doesn't release anything except claims that arise out of natural future contracts you're entitled taking consistent positions but which is your better one i don't see those inconsistent at all your honor farmland farm land says the release covers this facially but it's not the same transaction your brief say it doesn't cover it facially that seems what they what the farmland panel said was that release on its face is broad enough to cover your direct purchase claims did it not i disagree wrong you don't think that's what it's at i interpret that so why then would have why then wouldn't have just said t release doesn't cover this i mean i know it's a nonpresidential decision but it seems to me into a whole bunch of useless analysis if if the court really thought the release didn't cover the claims at all as i read the farmland opinion your honor it's specific to the fact that farm land was hedging its transactions on the night next and in this case the record is clear sinclair's physical purchases were not hedged on the night  t and that's the difference even so to applies it really does get away from inconsistency for a second to just go to the release do you think the release on its face covers your claims certainly  not and i'll tell you why there are two phrases in that release that are critical to this the first restricting the release to transactions traded on the ny mex are transactions were not traded on the nymex there's another point that you should pay attention to and this wasn't addressed in the farmland decision if you look at the parent thetic a language that follows that broad language that is arising from relating in any way to trading in nymex natural gas transactions you'll see parama including and a pair taking or making delivery of physical natural gas pursuant to any nymex natural  gas i understand that i understand that argument i think it's i think it has some purchase here's my here's the here's why as the previous question you said look at farmland that demand summary reversal now you're telling me farmland isn't the same case so if it would only demand some reversal if it were the same case and if it were the same case then it would mean that the that the release applied to your your claims would it not broadly speaking your honor there were three grounds for reversal stated i our briefs the interpretation of the release the identical factual predicate issue and the due process issues i think that what the court is asking is whether the court's interpretation of the release and the identical factual predicate issue are somehow mutually exclusive and again i come back to the fact that i read farmland to apply the release in that situation because the transactions the specific transactions that were part of the farm land cla were being hedged on the night max so it is like if i understand your argument it is the release doesn't cover our claims if you disagree we still win because there is not an identical factual predicate in the context of  says it also covers claims that may arise under relate to any federal or state commodity price manipulation isn't that what you're claiming here a commodity price manipulation not necessarily in connection with a direct imax contract but still you're making allegations of a manipulated the market through these false representations that inflated the prices of the commodity language trading in nymex natural gas contracts and back to the parent thought of coal in order to interpret the release to cover sinclair's claims you have to read that language about physical natural gas pursuant to any ny mass nymex natural gas contract you have to read that out of the release altogether and i think that applicable release interpretation law which is new york in this case prohibits us from doing that did you wish to save now down to six minutes from now if i may i'll reserve the rest for a bottle thank you very much court john rule for defendant apple e one oak energy services company the judgment should be a firm based on race judicata because the physical purchase claims that sen claire is making in this case arise out of the same dust doesn't the case law say that when a judgment is based on a settlement agreement the race judicata effect of the of the judgement is is constrained by the settlement agreement i don't believe that's correct  and you know you think the courts that have said that including us were wrong well i think what happened in this case if we go back to the nymex case the defendants paid one hundred million dollars for two things one release and secondly a dismissal with prejudice of the claims that were asserted in those cases the release language the parties agreed upon but as we've seen in farmland and in this case how that really supplies has become the matter of some controversy right and blood and so  to understand your position let's assume you have a settlement agreement that says we're releasing claim x but not claim y and that settlement agreement is approved by a court and incorporated into a judgment your position is that that settlement agreement is preclusion events to claim why no your honor i wouldn't be saying that but that's not what we have while not just now now let's assume we have a settlement agreement that says i release claim x and is silent on claim why is your position is claim with one additional fillip here the settlement agreement also required that the plaintiffs dismissed with prejudice the claims that they had asserted in the case which means that they were dismissing not only of the claims is made pursuant to the agreement and you know we've got a whole bunch of cases in other circuits due to the eleventh circuit said it better than us a settlement agreement entered into the context of card of principles well i just disagree or rather i think in a situation where the settlement agreement calls for a dismissal with prejudice that's exactly what the eleventh circuit dealt with but i my point is that in those cases the claims in that case were based on the represent a based on the allegation that the defendants falsely reported to the trade press and that those false reports did two things according to the cornerstone propane complaint they affected you lost the case and therefore you're done so that's not what i'm focusing on we haven't we've said a settlement can limit the scope of a prick loose of effect of a dismissal with prejudice by its terms and so the question is does this settlement agreement limit the a fact not whether or not there would be race judicata from the from the dismissal with prejudice but does the settlement agreement limit the effect of that to sell i don't think it does your honor but if i could turn then to the release for just a moment you are caught that's really not what i want to talk most about this morning but the release here in my view does cover sinclair's claims because there was a relationship established in the record think natural gas contracts you know that if it says yes no other or related to arising out of are related to and when what you're saying is when you purchase natural gas directly then your claim is arising the record comments are the release and so well both your honor sinclair is arguing that the release doesn't apply to it because it didn't it didn't heads that's not the way the release reads the release says that if the right track but directly from one of the defendants right out of pipe ride why does that arise out of more relate to relate in any way related in any way it's defined very broadly as to tell me tell me why it does it does because in this case despite what sinclair says it's documentation shows that it netted against its price for natural gas for its refineries its gains and losses on  case isn't limited to people who bought my mix contracts for the purpose of hedging it's defined to include anybody who purchased nymex contracts during the relevant time period sinclair interpretation of this ruling i don't think it would be a strange interpretation but it's really frankly not one that i thought about here and here we have a much more clear relationship between sinclair's buying nymex contracts and its its cost for natural gas on its own books and showing that there is a relationship between those two because it nets out those those gains and losses against its physical purchaser if it had made the accounting decision not to do that would their claim be preserved it might this would have a strange release that that that account that depends on internal decisions made by the by the release see with respect to our count well i'm not sure how to respond to that well i mean it seems to me that if well i'm asking sort of the question judge mel was asked differently you know you have a release which on its face might not cover purchased direct purchases but you're saying it's transformed into one because of the way you account for them i'm sorry your honor on its face this the release doesn't cover the transactions in this case is for the moment but you're saying even if it doesn't on its face it does because we know as a matter of fact that sinclair engage in certain accounting practices i think in this case there there is the relationship that has to exist under the release between trading nymex contracts and physical and the claim that's being asserted in the case if i could talk for a moment about race judicata because i do want to make clear that i think sinclair has misrepresented that the has case says that the not a necessary predicate to the ruling and farm and at all there's no mention in the district court decisions in this case or in farmland about race to excel but if you believe that they form if you believe that the claims come out of a different transaction that's basic thing lately ever in fact that's right so so what that what this is what the panel seem to say is no these are different these arise out of different transactions and therefore therefore the settlement doesn't any be wrong imo so yes they did that for purposes of the identical factual predicate rule which is a rule that's been designed to make sure that in a class action settlement claims that could not have been presented in the case don't get precluded by a release and us and has become a can unless they arise out of the identical factual predicate rule that was at issue in the class case that was settled that rule doesn't for the e prime defendants and i'm basically want to use the rest of our time to kind of flush out the discussion that the court has been having and i think it's important to realize that if you just look at the release even in light of the farmland decision it applies on all fours to sinclair oil here they have admitted they were a class member they admitted that they bought and sold it to fix contreras the claims that there are certain in this case do they  arise out of their purchase or sale of natural gas nymex contracts that's the issue and it goes to the so the colloquy that you had about it is this just merely an accounting issue and should they lose their rights because of simply how they accounted they didn't have a choice to account any way other than the way they did the one thirteen requires them to to look at both of them in conjunction not just let it go when i was it still i'm still stuck with my dear original question put accounting aside and everything else how do their claims in this case which is that we bought natural gas directly from your clients you fix the price how did those a rise out of their purchase or sale of natural gas contract they arise because they tied the price to what was and i mix and you know as judge the philips made represents the part of the definition no i don't think any and it says i know a b and c a b and c all occur under the any claim arising from or relating in any way to trading in nymex national gas natural gas contracts and there's a bunch of a  z after that so i'm focusing on the very first phrase why does the claim in this case arise out of relate to in any way the trading in the i mix national get natural gas contracts well it does because it was done in conjunction with each number one number two there was a class representative identical to the situation of sinclair oil the court found that it was an adequate representation and that that the release also gives up your honor first said in the first thing that you said today was the parties have to be free to make pay one hundred million dollars and get perspective well there's there are different rules that apply in the class context because you precluding people who are not individually present who don't negotiate for themselves i have a slightly different question about the wording of the release in addition to saying arising from or relating in any way to trading in nymex natural gas contracts there is apparent federal which includes taking or making delivery of physical natural gas pursuant to any nymex natural gas contract and so it seems to me that that you know this limiting light which that is if you take delivery of physical natural gas that is not pursuant to a nine x natural gas contract it's not covered do you disagree with that yes your honor because going back to the concept of a release for person perspective release if we focus on the release itself that's what i'm doing it is for the claims that were or  seems to specify that there are only certain kinds of delivery of physical natural gas that are within the scope of the release and other kinds of taking delivery are not within the scope of the release and i would submit that it is clear that there was at least one class representative who could have made those very claims outside the scope of the release and did not in that lawsuit and therefore they were released that's adepts a different claim that's a that's a race you caught a claim now which we're just focusing now and on the  the absence of that phrase all such crimes would be released far be it for me to say that a lawyer writing a settlement agreement would put in surplus ok but that is your position right that the phrase phrase is essentially not necessary it's not necessary because it was meant to be a perspective release and under sinclair oils theory everything plaintiff every potential and actual class member in the ny mags lawsuit that got one hundred million dollars to go away come back the next counsel referred to something so out of the settlement release that middle of may be on the record did the judge here in the summary judgment context cite these other outside issues interpreting the effect of the settlement agreement might be counting things that you mention i know it was in the record your honor i don't know that i can recall the parts of the order whether it was specifically referred to but it was certainly before the thank you i'd like to return briefly to see versus sprint corp and i think it tells us a couple of things that are pertinent to the discussion we've had this morning first the membership of the class a party seeking to bring a claim under these circumstances doesn't necessarily isn't necessarily determinative in his c party the plaintiff in that case was a member in the prior class action case and yet the outcome in hessy was that by virtue of the absence of an identical factual predicate the claim had not previously been released the second thing i'd like to point out about hessy is that you look at the language there and its discussion of claim preclusion and you see that it applies not only to release but also to rescue to cut and i and yes the accounting treatment that was elected reflects that it's being netted out but the important thing to keep in mind is that it will not be a part of the claims asserted a part of the evidence a part of the injury that will be asserted in the claims that sinclair has made against one zero and a price seems to me you raise two separate arguments and i want to make and that's why i asked you to begin and they're not necessarily the same and i take colleagues your colleagues musician it may be for a shoot a card a purpose is the same transaction analysis is different and it is for for class action settlements but one level what you're saying is this agreement doesn't cover us at all we are claims don't arise out of the purchase or sale of natural gas cracks on the second level you're saying it couldn't have released it even if it meant to because they don't arise out of the same transaction i think that's correct ok now i'm the second one now they arise out of exactly the same the transaction we're thinking about is not the transaction that you engaged in but the i think that back to hessy it recognizes there's no transaction you're talking about the price fixing it's not your purchase it's the price fixing they're going to be superficial similarities in various one of these except not superficial it's exactly the same price you said they got together to manipulate the the publication indices and they did it through conspiracy and winks and chads and so that's exactly the conduct that was claimed to have led to the damage and then i mix cases i disagree for this reason your honor consider the can the commercial context the ny max is a place where financial by the public by the indices in the publications now that that is the source of the damage ok so if and therefore the source of the damage were was conduct engaged in by by these two companies which is exactly the same conduct that you're alleging is the source of the damage in the second case correct no what what different what different conduct by you or by the defendants do you allege conduct did you allege in the first case that gave rise to liability not different consequences but different conduct the conduct is the manner in which the misreporting manifests itself on the one hand in mex so your answer to my question is you didn't allege different conduct in the first case in the second case you've led to for an outcomes even left different damages but you did not allege different conduct am i correct i disagree your honor the fact that they have mis reporting in common doesn't mean it's the same cause what other what other conduct by the defendant gave rise to potential liability in the first case dooms your claim but i'm having a hard time seeing what different conduct liability is based on in each case all i have to go on your honor the allegations made in the ny mex complaint and they describe a contractual context  radically different it's the difference between speculating on pork bellies and going to the store and buying a pound of bacon it's and it is that conduct i think that defines the difference let me try this one more time and give you an analogy ok you run into my car you break my car and you hurt me the same conduct gives rise to two different types of liability does it not one for property damage and one for personal injury i see your point yes it's not exactly what we have here the same conduct in each case gives rise to two different types of liability one for the purchase and trading of nymex futures and the other for a purchase of natural gas in two different claims that arising out of the same sort of factor scenario i think at its heart there is there are certainly that overlap which is mis reporting to the reporting services right there's no question about in the absence of that misreporting would you have whose name was just taken in vain in a hypothetical i  if you begin whenever you are people thank you i'm just checking with everyone here are make sure it please the court my name is jennifer jill bacon i'm a lawyer from kansas city i'm here representing the kansas missouri and colorado class cases in this matter and i thin representing those classes for the last almost thirteen years i've made two trips to the ninth circuit one to the u s supreme court and i'm back here for a third maybe we can take you back to washington again thank you thank you very much sir as you know this is a nationwide horizontal price fixing conspiracy where that's our allegation accomplished by price manipulation of nationwide retail gas markets the judge below has denied our class we are here on and we are here to talk about that denial and here we are there any i'm sorry sir here's the tough question in this case and we posed a really you agree review that finding for abuse of discretion i believe you review all the findings for abuse of discretion the interesting thing here on the standard of review is that we also come up on a twenty three a f which the analysis for errors of law because by definition an error of law that is an abuse of discretion correct and just to reiterate dissipates my question which is that first you have an error of law here and if not you have an abuse of discretion  in the judge's discretionary fact finding both i believe we have both and let me give you two reasons two principal reasons first is that the judge's decision below  completely fails to meet the rigorous standard required of a class action certification decision and i have several reasons for that i will go through them and i will go through the class action standards the other thing that i think is important here is the judge's decision below completely fails to recognize the difference between the various state and i trust statutes at issue here none of them are like the other and yet every case was decided without separate analysis in some instances it's almost impossible for the case to have been decided the way it was if the state statute had been analyzed if the actual allegations and damages claims of the complaints had been analyzed so while you're discussing that it also i also have some concerns about the extent to which the district court's discussion of injury was joined with a discussion of damages because they are different they are different and i will discuss that and i will do that right now if you would like the it is not uncommon frankly particularly in class action type cases and i trust cases for impact and damages to be confused it happens i think more often than not more often than not but it does happen impact is simply the fact of injury did some injury a coup or occur and did it occur to most of the class there is no requirement that all class members be injured that can be handled at the at the damages phase there is no requirement that all class members be injured uniformly during an entire class period there is no requirement that all class members have purchased gas exactly in the same way here of course the judge found no impact and yet he appeared to relate that to the fact that not all injury was uniform across the entire class leader to find no impact what he found was that the questions of impact were did not factually not predominate true but his recent repression alfre that appeared to be that injury was not proven in in them uniformly across the class period it was up and down during the class period and the fact that purchasers had different types of contracts in our case we controlled for that our experts analyzed all the contract types that our class members used their five of them well that's it and that and read your expert reports so let's assume that your experts could present because that's the old way you intend to protest present your case your experts would present common questions of law and fact across the class but that the defensives to you the claims would necessarily break down in two separate trials with that does that mean a common questions of don't predominate now which one of the other side says ok thank you for your expert reports i'm going to bring on each of the people who made these communications with the trade publications and they're going to testify that they did it completely independently and on their own with no collusion with anybody else and the judge heard his phrase that it's a hypothetical but in this case do we know what defenses are going to be asserted are they going to just use contouring experts are something else the records show that i think the defendants here are challenging every aspect of the crisis for instance they're going to challenge was there was there a did they manipulate and did that cause harm but each one if you had an individual trial all of those issues each one of those cases tried by us would present precisely the same testimony but just in terms of let's say the injury aspect the damages aspect do you believe the defense asked see your expert going to simply be limited to countering experts or something more on an what's the realm of relevance of the nature of the defense to whether common questions are fact i don't believe that the nature of the defense matters i think what matters is that we the plaintiffs are show that we've presented common questions of law that there were no longer looking at your murder that's not our job our job is to look at what the district court decided i'm determined whether his decision is an abuse of discretion after reviewing everything and so i guess as you're answering these questions i guess what what i'm curious about as i listen to my colleagues and your responses is whether if you brought individual claims and not class was whether those exact same defenses and witnesses would have to be presented in every case because if the claim is collusion and the answer to that is no everybody reached an independent choice there was no collusion wouldn't they have to present the identical witnesses and differences in every can't use yes that's and i thought that was what i said if i failed to do that thank you your honor for saying it better that's exactly right any time we're going t this case and is as we've pointed out in our superior already arguments in our brief this is a very difficult case to try individual claims on because many of them are not large enough but there are a few very few folks who bought enough gas that it would probably be feasible to trial an individual case but every time we try one we're going to be trying it on exactly the same evidence and i take it as another not dealing here with a superiority finding or w say it's better i could you know what i could see a district judge saying let's take one of the big ones let's take three of the big ones and try them first as sort of bellwether cases but that's not what he said no but nobody does do as he repeat himself throughout the order he says the court finds that the predominance and superiority requirements are not met but as we pointed out in our brief there was no finding made in his discussion section which was pretty short but there was no just finding may not spirit already at all can i get back to the point you made at the beginning you said the order was inadequate yes if if we agree with you shouldn't we send it back to the district court and tell him to send us an adequate analysis rather than us make it in the first instance and i understand you've been at this for thirteen years and i understand you probably don't like the district judges findings but we're not very well equipped to make those kinds of finding instance why shouldn't we if we agree with you just simply send it back to the district judge and say we need more details obviously that's an option there's no question about that the judge didn't appear to have a very clear understanding of what's required to actually look at a class case that early and so we have some trepidation about that that does get me to my other point about the various state statutes one of the issues here is that he made a decision arguably in one case and then just said ok everything else is the same but it can't be so not of his rationale is as he says it is the case in colorado is a case involving a single defendant and the customers of that defendant and the only the only remedy in that case is full consideration which has no issues about individual contracts no issues about any of the things that he briefly mentions in the opinion he wrote those rationales can't possibly apply in the colorado case and yet he says for the exact same reasons as kansas it does demonstrate the real difficulty and i think any judge and i'm not trying to as spurs judges but the fact is if you have to make four class decisions on four different stance it's none of which are the same as we point out in our brief the kansas statute which predates the sherman act and looks nothing like it is essentially a pure manipulation statute up down sideways and it says in print anything that distorts the market doesn't reflect actual prices anything is a person a violation of the argument is it's a different standard the same the same thing the stand the kate kansas case says is that the standard for agreement or collusion in kansas is different now i guess i'm getting back to the defense the defense issue that we've been talking about i think what the district court was saying and it is is terse you're going to have to prove that you were actually injured by the various manipulations in different ways in different  and therefore each quest members have to prove that in different ways and therefore we don't have common questions in fact mike and i wrong about what i think he said now here's what i have to say and i would like to before i answer that question note that i'm about out of time and i wanted some time to reserve and i'm going to lose it when i answer your question so i'd like to make that point now before i lose my truck that's life in a big city i know i do know that i know that i understand here's the point about that  do not have to do that because our experts are going to put on an aggregate damaged area and that damage theory accounts for the different dates that damage occurred the different locations at which it may have occurred and the different types of contracts and that is shown in our record where our expert says variations in impact across date location or contract are readily and properly accounted for in determining aggregate over charge zero eight one so the experts who understand that differences in contract type may make some difference in your damages differences in the time across the class period may make some differences differences in location not so much but they may create some differences they have a common methodology of creating that the court informed us is that i'm representing the defense and i will respond to ms bacon and then i will have an opportunity to respond to mr billings after  billings may it please the court my name is trey fisher i represent the donny g defendants but i will be presenting this morning on behalf of all of the defendants i want to begin this morning in the first instance to address the last bacon was making about the aggregate damage argument and i want to cite pacifically to enter a new motor vehicles at page twenty eight of that opinion and i'm quoting the ability to calculate aggregate amount of damages as plaintiffs reposed to do here does not absolve plaintiffs from the duty to prove each class member was harmed by the defendant's practice the fact that you can cut cumulate something that is individual eyes into a big number doesn't absolve the responsibility in the one i mentioned earlier is the same paragraph seem to discuss injury and damages as if they were interchangeable and for purposes of class or for cation they're not normally interchangeable secondly there is not a separate explanation with respect to superiority which he seems to conflate with predominance and that's aside from the issue about whether each state  should be analyzed fully and separate manner and so i just have some concerns about the adequacy of the legal analysis only apart from whether it reached the right result so could e thing i think you know to stay focused on in this instance is that the task before the court today is whether the decision the decision itself denying class certification was that an abuse of discretion and it was if his legal analysis is wrong honor i fully understand i want to address that but i just you know the planets want to speak a lot about the order and complaints about the whether he spoke enough words used enough paragraphs rather than actually embracing that actual decision and address what if the decision had just sa i deny quest certification because i think common questions of law in fact don't predominate and you could come up here and say to us quite reasonably let me demonstrate you have they don't would we then wouldn't would think in that instance your honor the case law would say that the just the standard of review at that point may be different it you may lose the abuse of discretion standard and that's what you know last vegas sands for example speaks to that issue  but you know but in this instance also quoting the last vegas sands case if the trial judge has made findings as to the provisions of the rule which are present in our order and their application to the case his determination of class status should be considered in his discretion could you  back to me answer my question though doesn't he conflate things that are separate and not discuss them analytically separately with the missouri plus damages on the one hand superior t and predominance on the other and mushing all the states together are cumulatively that seems to me to be and in the adequate analysis with respect to injury and damages i do believe that the judge dealt with them distinctly while he may have discussed them in the same paragraph i think he was careful to address harm which was that he was describing in my view as injury and damages and speaking to for example that plaintiffs own experts have used different methods to calculate injury resulting in disparate estimations of what percentage of class members were even harm to me speaking of any trust injury the liability element he addresses damages as well because we have no class wide method of determining damages and once you in there are a few points i want to give you we gloss over this pretty out a high level in terms of what this market is because there's not one market issue we have multiple markets with multiple transactions and an utter failure to analyze any name pla contracts and there's some important consequences to that but to the point about superiority and predominance i want to get back to that those often merge because if you if you don't have a predominating you know common issue such that rule twenty three b three is satisfied then class action treatment is not superior it's unmanageable likewise if it's unmanageable it's usually unmanageable because individual issues are predominating so those two requirements are going to in many many analyses do you know i tend to agree with that here's here's the difficulty the only discussion substantive discussion in the predominant section which as you say tends to merge with the already i'm looking at the record in page twenty inquest members these actions are not small consumers whose damages constitute a straightforward calculation of units of products purchased that's a damages calculation right yes your honor it is a damages calculation and under  comcast you have to have a class wide methodology for determining damages that's not an individual calculate it right and so that's why the methodology but this is this is this is a notion that it's not common questions or laura facto predominate because we may have to at ways in our case where you have you know very simple to use the defendant's records like for example and labor where you already had the defendant making the calculation and you simply number of hours that you are paid four times your hourly liability issue need it is a damages issue and you have no class wide methodology for calculating damages individual issues will predominate well not necessarily not necessarily i mean what do i have two things i'd like  respond to your opposing counsels argument the first is the assertion that the liability evidence would be identical if these cases are tried separately that is the plaintiff's case showing collusion manipulation of prices and the defense showing no no i came to this independently i didn't collude with anybody wouldn't all that be the same no your honor would not because the  allegation here is is they talk about this common scheme if prices can but when you actually read their expert reports their expert mr dawkins he doesn't speak of a greenman he doesn't speak of a common purpose he speaks instead of uncoordinated self interested would seem to be exactly the same as to each defendant and your defenses would seem to be the same which i nothing about an allegation of conspiracy collusion to affect the price of natural gas correct that is wait let me follow up yes or with and talking about this this type of commodity we're talking about specific claims of what this collusion conspiracy involved i don't see a difference in of employment decisions being alleged and just in challenged across the country different stores different regions we have the same thing here with it there is not one price of natural gas we think allegations in that case were considerably different than they are here that is the were the allegation there was that the the problem was that there was a subjective permission for every manager to act differently that was the very essence of the wal mart case and so  that that's just seems like one hundred eighty degrees opposite here where there saying you know these eleven people got together and made a conspiratorial decision that isn't open ended at all but the the other piece of  argument i'd like you to respond to is the issue about state by state that the analysis for example for colorado is not the same as the analysis for other states and it is quite clear from the judge's order that he didn't analyze but once he had one paragraph about this and then he said for the same reason in each of the other motions so should should he have analyzed each state's class action acknowledges and and is very clear on where in the same way that in that instance in the wal mart you had all these individual decisions you have all these individual unilateral self interest to decisions whether to false report or not and again their allegation is that while each of the traders may have made an individual decision about what to report their decisions were made pursuant to an overarching conspiracy now they may not be able to prove it i'm not sure i find their expert report on it very convincing but that's not the issue in front of us using front of us is that as opposed to wal mart where nobody thought nobody alleged there was a national conspiracy to discriminate the argument was there was there was a there was a common policy  allowed discrimination also you know policy was individual decision making so that that's a very different now and i would just respectfully submit the allegation here is actually about individual decision making and the point i haven't been able to make very well and i apologize is that there are thirty nine different locations or thirty nine different indexes that are at issue in this case and they're experts when they are stablish into trying to show impact of those they change every single month every single month at each location is different and so back to the question of why he did why didn't analyze each state each one of those states follows the sherman act each one of those states requires proof of impact proof of injury as a liability predicate he determined correctly that individual issues of impact will predominate and you know and the other thing that i think is remarkable here we actually don't have any evidence any analysis of the name plaintiff's own contracts to show whether they have any trust injury and if you would bear with i can give you an example of why it matters that there are thirty nine different locations that vary every month and that there are no analysis of the actual name plaintiffs and that that specific example is the brain of to use colorado again breckenridge is the name plaintiff there's also a name planet b b the acquisition that bought gas in the same way saw this refer to them as breckenridge and for the record at three ninety six and four hundred they bought a had a contract where they were buying monthly index gas plus fifty cents at a specific location in colorado rocky mountain sea i g and then when you get you know and so from september two thousand and one to the end of the class period then i would direct you to dr harris's results about impact w summarises it we will copy this page thirty nine of our brief it's exhibit seven to his report it's in the record it supplemental record at twenty one from september two thousand and one to the end of the class period he only finds impact for two months and november of two thousand and one and february two thousand and two and when he does it's one percent one percent of customers and so you ask yourself the question of what does that include breckenridge what it probably does it to stickley but we don't need to answer it that way we can then go to one of his other exhibits where he is summ zing his results by location by month that's in the record a f r e four to five and if you look between sip and november two thousand and one to five and in february two thousand and two where he says there was one percent of customers impacted rocky mountain c i g is not listed and you can get in go to another of his exhibits at f r e one twenty nine to one thirty two where he's listing the class members that he claims are impacted and we don't find breckenridge on that list we would find ford motor company we finance house or bush other very what  though right now and not a predominance are you mad at me because you're saying that the class plaintiff isn't typical of those who are injured but that isn't what the district court held when i'm going i'm trying to illustrate your honor is a predominate issue because going through that analysis which i just did at the end of result of that breckenridge the name plaintiff in colorado is not impacted they do not have article three standard based on their own experts taken at face value but the important dominate is what the district cour said the important predominance point if i may finish your honor is that going to that analysis which they haven't done but going through that analysis for this a simple case i breckenridge would do absolutely nothing to prove the claim of any other class member who bought natural gas it any other location or any other way for any other time even if they had shown impact and it doesn't back to the wal mart case it doesn't show injury in one stroke because proof and that's why individualized issues predominate because it matters where you bought gas it matters when you bought gas because they couldn't find consistent impact consistently through the class period and you know if you look again at dr harris's exhibit seven some of page thirty nine of our brief it's self evident he's got zero they all conflict and it's not we're saying that tony so let me try to rephrase your argument a little bit and see if you see if i've misstated it what you're saying is that because different indices in different contracts determine whether or not an individual defendant was injured in addition to presenting their expert testimony about class about impact on the class as a whole they would have to show that each individual defendant suffered some damage if you will plan it if you play if i'm sorry yes absolutely and that's what i that's the quote is why doesn't that lap i mean i understand the point i'm trying to figure out where the dividing line between damage and and impact is in these cases no words you couldn't couldn't there be a requirement at the damage stage that you demonstrate that you were one of the people who fell into the proof submitted by these folks i'm not sure i fully understand your question but the antenna trust impact is fact of injury you have to establish that you were injured in this case that doing that for every class member will involved an individual eyes inquiry by the nature of the market by the number of the markets that are issue and the way they have chosen to analyze it with six different means hashing differently could you have a class action which focused on whether or not there was an antitrust conspiracy that affected prices of natural gas purchasers and you try that issue and you find out whether or not there was or wasn't if there was one could you then have follow on individual actions by individuals trying to demonstrate their their particular damage i think the answer your question is in your reference to affected everyone did show that in this case the effect everyone is individualized and therefore you couldn't have that class like you would never have  together they actually make an agreement they have a common goal and common purpose which doesn't exist here we know that this involves the entire market but when you have a small and it's everybody is buying off the same price list which is completely not the case here there are have just a few things to say first on the breckenridge issue we were not provided any evidence in discovery about the class purchases we had nothing we got that about three or four months after discovery closed it was too late for the experts to use it and in fact the experts here are we actually told them because we only had a full consideration overcharge theory that they would did not need to include breckenridge in their calculations for purposes of damages they are included in our class declarations and our and our experts say they found impact for breckenridge  remember only as several cases say you don't have to have a dam or impact throughout the class period one single overcharge is enough for me my primary difficulty with your side of the case and it is certainly possible for a district court in this exact situation to have certified a class but that isn't the question in front of us if it could go either way we have to uphold what the district court did if we can go either way it's not an abuse of discretion and so a lot of your argument has demonstrated to me at least that it would have been permissible for the district court to go the other way and i agree with that but i don't know how far that gets us i think where you have a horizontal price fixing conspiracy proven with with common evidence about is that could the district judge have rationally found that in these cases because for all the reasons mr fisher says that common questions while in fact do not predominate because with respect to establishing liability to two class members the questions are quite different no i don't think that's true i think commonalities and superiority are so i don't want to say easy but i do think they not terribly difficult questions to decide that a class is a superior common typical those things with respect to impact and we're really really talking about impact there is a class wide common methodology for determining impact and our experts found impact to every class member they looked at and understand they looked at about fourteen hundred they found impact all of the you know deny that there may be somebody out there who isn't impacted but they found it with respect to fourteen hundred that's the that's a pretty good sized sample in anybody's statistical world they have an overarching damages theory and one that aggregates damages and takes into account those things that we understand vary somewhat throughout the class period was every contract type impacted at the same time you know is that unusual no were did did damages occur at the exact same time for everybody no is that unusual no what maybe unusual is the ability of these experts to control for that and you can take that into account you  other than you you certify a class if you don't want to do that send this case back to the district court with instructions to issue suggestions of re manned the question of class certification is not a common question to be resolved by a single court here because of the state statutes it is all the discovery is complete everything is done in these cases send them back to the individual case states that they came from send them back to the states that are familiar with the state statutes had these cases not been j p l meld they would have been decided in their individual case thank you finally please the court my name is ryan billings from court a man in care of us we represent the wisconsin opponents and i'm going to try to reserve about two minutes rebuttal i agree with miss bacon that class treatment here is appropriate and superior to any possible alternative but i'd like to start with an issue that the district court totally overlooked and is not substantively mentioned in defendant's brief and that's the full consideration remedy in wisconsin this remedy is very different from the treble damages sherman act type claim which is a separate cause of action the folk incineration cause of action is  discordant remedy designed on the principle that one who participates in an a competitive conduct concerning a product should not be able to receive retain any of the funds it receives from sale of that product not even one penny it's been wisconsin statutory law for one hundred years and on the common law before that the elements are very simple number one did the defendants combine or collude to restrain trade with respect to natural gas to in connection with that combination or conspiracy did they sell gas to class members three to class members pay money for that gas or provide any other benefit these would be proven commonly the conspiracy is going to be proven by looking at what defendants did the sales to plaintiffs can be proven through their sales records the only individual proof that might possibly be needed are some invoices from the  class members but that's the kind of proof that's necessary in every class action this this cause of action was not considered by the district court and the defendants don't mention it in their brief well we should we ask the district court to consider it well i think if the court is remanded with instructions that would be one of the instructions well i mean your complaint is that the district court didn't analyze your claim separately so my question is do you want us to do it in the first instance or do you want to district court to do it well we believe it's appropriate for this court to do it in the first instance really the record sort of by a class you did it in the levy case and there are the same errors in that case the court conflated so there was no predominance because of damages and it said there is no superiority but didn't analyze all of that you're making a different argument so your argument is even if all my friends lose i win right well there are there's more than one full consideration at stake that's your argument your argument is pretty we're different we're from wisconsin we're where we are different believe that we're better than those folks and so i'm focusing on that argument ok and so now i'm not worried about how bad what a bad job to judge did on the other cases i'm worried about the fact that he didn't discuss your case separately is there any precedent for us just certifying a class under those circumstances should we send it back to the district judge if we are right well i think there is precedent in the levy case in the rodriguez case this court review what we found the judges discussion wrong and we could find it and say well that's a good great class action because of the findings the judge made but here you say he isn't even treating our case so well of course it's i think you'd be pretty happy with the remit and i'm not asking that i'm just asking right why it is in the first instance we should make those determinations well because i think the record is developed i think there's no argument against it wade raised by the defendant so it's way down appeal and it's very simple and it's a very simple claim to defend its conspire did they sell gas to class members to class members pay money all that's common it's very very simple there's none of this complexity of court in this instance where you yourself claimed that he did not even consider your position here that's correct be the first instance better instance to review those claims with this record doesn't show that review was done you're asking us to basically make some factual determination and legal determination here that you know the district court you say do not even that full consideration is a good candidate for for a classification there's nothing on the other side we think it's a no brainer of course if you want the district court to look at that issue you can remember instructions we just believe it's appropriate on this record to remain with  exit justin's thank you with respect to the treble damages claim i just want to make a couple of points the first is on the abuse of discretion standard about which the court asked some questions the germanics case that we cite and page thirty eight of our brief says that if the district courts determinations don't have support in the record that's an abuse of discretion the district court cites absolutely nothing in the record on any of its findings and contention it misstates what the plaintiffs experts found and it states the  defense counsel what the record actually found on fourteen thirty one is that all or nearly all class members were impacted that in general we're talking about a a market in which gases homogenous fungible fungible cheap to transport and sold at highly liquid markets all over the country it's a completely standardized product it was purchased by class members who were largely small purchasers purchasing about ten thousand dollars a year of gas who didn't have the exposure to hire even a single employee to look at it full time these are relatively unsophisticated class members that's at thirteen eighty seven and ninety eight and seven twelve to seven fifteen we know i don't understand your trouble damages claim you get treble damages under wisconsin law when there are two separate claims we can we outside your disgorgement theory are you not that's a totally separate class of cause of action yes totally outside so with respect to that treble damages claim on two really the same as your other compatriots well it's the same model  week right so so i mean it's the same you have your proof would be precisely the same you have a slightly different version of the argument about abuse of discretion for failure to properly analyze or to  the record right and i also think one of the things we pointed out in our brief is that wisconsin is a little bit different in that there are a few market players we talk about kazakhs and how they serve these two companies for more than fifty percent of the market and so i think it's a little bit simpler in wisconsin there are factual differences and again there's nothing in the record to say when where the other but my point is that there is there's nothing there's no basis in the record that this court can point to in the district court's opinion to defer to and they depend on the opinion as my colleague pointed out is contradictory with respect to the collusion i think judge grabarz point is exactly right that every trial will have the same conspiracy case they have the same witnesses that make the same arguments and judge her wh asked well couldn't she went on summary judgment they put these issues been front of the district court on summary judgment and they lost the district court ruled that our conspiracy theory is viable and supported by sufficient evidence to that reasonable jury could return a verdict in our favor to defense be different in each case it would not in terms of conspiracy absolutely not now mr fisher will argue that this was just isolated actors acting without coordination and he misses it's our expert doc and what mr duncan actually said is that to eighty four to eighty nine but if that's true if it's just isolated people making isolated decisions then there's no conspiracy and everybody loses that's what the court pointed out in the engine case that there is a fatal dissimilarity that's still appropriate for class treatment because it ends the case in one stroke if we can't prove t false reporting wash reading and turning these defendants nipping late at the retail natural gas market none of these questions about impact or damages are even relevant but if we can prove that the model that dr harrison dr choir put together it it measures exactly this what was the impact on the natural gas market of false reporting wash trading in training and one of the things dr dwyer points out is that all of these different measures of price types are interrelated it's because you've got a completely imaginary as my just product that is sold all over the country in liquid markets so you would expect that any mark or any price market for natural gas is going to run on the other ones otherwise there's arbitrage possibilities can i ask you one question about the final suggestion that your colleague made do we have the power settled no case has been remanded for trial from our end to go ok well there might have been some very early in california but i think i thought there were so yeah i think one thing i may be mistaken about that the ones that have been part of the case since two thousand six the california cases all settled but the ones that are had been around since then are the four class cases and the three individual cases the two sinclair actually is the foreign one action and those have not yet been reminded so i'm one more question for you do you do you have proof that segregates the impact of the wisconsin market absolutely dr harrison put together the work of dr dwyer and his own and said what the damages were only in wisconsin and he did that by measuring class member purchases in coming up i'm interested also in your response to the suggestion about remained and whether that's appropriate to suggest in these cases i do not believe it is your honor and proof of that and mr referenced it but very very very obliquely and it's the same model the idea that wisconsin or kansas or the any of these states should have been analyzed separately is belied by the fact that what they presented were identical motions with a difficult expert reports that each are based on a larger model that doesn't speciate between the different states all of the proof that was presented to the district court was exactly the same in the model as mr billings referenced there are state claims that differ from state to  state their folk incineration claim it's nothing i do want to address because folk it's a rave did you wave that argument by not addressing you know you're on about now i do not believe we did because what i was about to say is full consideration is a remedy in both colorado and wisconsin it is a remedy for a violation for example in wisconsin for violating section one three three zero three and to establish the liability under that statute for which you may have a choice of a full consideration remedy you have to establish an trusts impact the wisconsin supreme court has been very clear about that and so when the due court here discusses that individual ised issues predominate he's also addressing the full consideration claim and when we address that individualized issue predominate is no need to go further and pile on to that point but there is an issue in wisconsin with respect to this court's holding in previously that in order to have that remitted you have to be a direct purchaser from the defendant in order to avoid that contracting and get in get you but in this case it's undisputed that all of the wisconsin plaintiffs except one bought them in a meteor's and those and they argued that those intermediaries were their agents but the what we dispute that we're entitled dispute that and the proof of that will be individualized because by definition and i can cite some wisconsin cases the issue of whether they're actually their agent depends on the understanding between the principal and the agent in order to establish but what you're saying now i do not recall from your brief and your description about wisconsin law and the difference between agency and not agency did you brief that yes your honor i did i find it's a it's a it's a believe footnote earlier in our brief i don't can't recall right now that's fair enough i may not have read assuming you preserved it in your briefing i've got a separate question this is all something the district judge might have found but he didn't he just said look back at my previous order in the first case it applies to everything is that sufficient discussion i believe it's sufficient because we all understood what the issue was it was a rule twenty three and this court at this point was addressing thirtysomething motions and it a certain point it becomes piling on when you're going to issue the issue and i don't think the district court had either there's no requirement i believe the berger case addresses this that says that he has to make any findings at all and to tie the conspiracy to the what you're measuring you don't satisfy rule twenty three b three and if dr bateman did you do anything to isolate conspiratorial conduct in your model no that's an s c r two thirty two harrison d the same dr harris is it s e r five forty dr dwyer's at seven o nine to ten and s e r two ninety three ninety four they fail comcast out of the gate they they take some data and they manipulate it and they claim to have shown impact but they haven't isolated to the conspiracy as they're required to do and i would like to give a few more examples because i think it does matter so when i was speaking for example of breckenridge not proving the claim of any other class member take for example learjet learjet basic had bought his price t analyzed it all it's big he has they're buying gas from casco an intermediary that's being based on their current cash flow considerations this is at three seventeen to eighteen and s e r five eighty seven eighty eight but importantly who is actually selling them the that they weren't impact you know you can go the other examples if i'm still just make sure i understand your argument and i think it's the same one did i asked you about before your argument is that in defending the merits of these claims but what you're saying is the way we would defend these cases i mean you either move first for judgement on pleading judgment is a matter of law because they haven't proved it or we would put on if forced to defend we would put on lots of individual proof of absence of member impact no it was their rule twenty three byrd and i agree i'm not speaking to the merits of whether they were ultimately established i'm saying the evidence that each class member will have to put on an order to establish that they have fact of injury will be different for each one of them they have and if you look at even the ones you want to use dr harris they will do nothing to prove anything dr dwyer is analyzing those conflict you know and here's my problem with that i think is i understand your opponents they're saying we don't intend to do that we're going to put on our models we're going to live or die with them so they're proof is not going to break down into into different types of proof it may not be sufficient you might be able to win a j m a while after they put on your proof but they're not saying we intend to bring in each class member to prove impact they're saying for better or worse we're going to throw these experts on the stand and make our case and those are common questions of law of fact that we intend to present you may say at the end of that proof judge we win because nobody has shown individual impact and the judge may say yes or no but it doesn't mean that their cases are going to break down into that that they've already told you they're not they're not going to pretend that they do say that but if you look even if you get back if they're actually me summarize or two but they're not gon you're telling me they're required to but they're saying we're not going to well and what general words i mean you're right they're not going to they haven't even presented evidence to this court that any named plaintiff satisfies any requirement of rule twenty three i think that that's not a predominance of lawyer fact question they intend to present a single model in each of the cases to say this is why we would they may lose under that model but that but on the plaintiff's side of the case i have a hard time seeing why the questions of war facto predominate i can see why on the defense side they don't we're going to we're going to argue that each guy would some of these people weren't impacted and some of them were in different ways and understand that and it may be that we're saying the same thing thing but coming at it from the little bit different perspectives and whether it's we know what they put on but we're certainly entitled to challenge it and when they don't have one model they have six different models those models don't apply to the class as a whole and we use the examples of the named pla demonstrate that and i do think it's fatal and it is a predominate issue because as an example of why individualized issues will prevail and whether characterize as a burden of proof or a defense to whether the burden of proof has been met when you have sophisticated and i completely disagree this is a negative value case when you have a very large consumers who have intentionally opted out of any common method of buying gas ford motor company does not have a negative value case if they were impacted by this that is those cases these cases will get try you know as individual cases and if you know these large companies mean that they ironically tyson foods is a class member if they feel like they have been impacted this they are fully equipped to  you their claim individually so whether it's done as a period already analysis or form is providing but you have these industrial and commercial in users who went through great effort to establish natural gas purchasing strategies that were customized it individually negotiated from their perspective it intentionally opting out of any common way trying to be crammed into the round hole of cost of occasion and you know that's why at bottom individualize issues predominate and again th supported in the record and i believe the district court's findings on this regard and his analysis watt watt while perhaps concise was more than sufficient to us to understand the problems that he found thank you counsel thank you your hon first i need to challenge the claim that they briefed full consideration they absolutely did not you can look at footnote for their statement the case not their argument section where they make an oblique reference to full consideration having agency issues they don't say if they're common or not common they're absolutely common as we put in the evidence f r e one four five one four nine one eight nine one one zero fourteen zero one and one four one two there were two agents just two in wisconsin and they both operated on the same model they would approach customers and say let us buy your gas for you let us go in the marketplace and get gas and bring it to you and they did the exact same way for all the customers second of all the focus iteration claims a separate cause of action it's count one of our complaint the supreme court has never held in wisconsin that you must pro impact for full consideration we don't have a comcast issue because as i said our liability case is false reporting watch training in churning which is exactly what are experts measured measured and what their real complaint is is they don't like the way the models are put together they think it's not representative or it's not perfect but what tyson tells us is that's not a class or individual issue the individuals are going to be presenting that case a trial or asking is because they can present the class can present it that's what tyson tells us and we'd like to not leave anyone behind thank you thank you counsel the case is just are you know are submitted we appreciate very much the