honor to get right to the heart of this this is a straightforward consumer fraud case based on the defendant's failure to provide a third fourth party automobile liability insurance policy to individuals who were promised the policy who paid for the policy and were not given the policy those individuals were heather veneris and the putative class members who were foreign tourists who came to the state of florida and rented the defendant to the a cols in the state as a case which is a big a big interest and we do the damages are the same in this case the judge awarded the twelve forty four per day that's the benefit of the bargain for dup the but the fact that i think the fed up the statute  judgment material they the way this isn't this practice was they knew that they had to offer this insurance they've admitted that we could not get this business unless we offered this insurance to those foreign renters  unless if there is a read a proper rejection it would not cover uninsured motorist coverage but it should be offered and a lot of them do all those companies various companies sell this excess coverage and a lot of them do provide own assured motor face but we're right right now anna you have florida law issues about what florida law requires about all that yes but that's not where we are right here where they were hard to do under foreign law or that they didn't do what we're here on first right as a matter of law has been damaged if you promise something and you don't get it in a contract as a g m and do you challenge the twelve or fourteen dollars as what the damage was you haven't challenge that knowledge and that's a fair estimation of what the part of the premium on the part of the payment was by law about these rate they have to of charge it's on the actual insurance policy the ace policy and they have that's what makes this case so manipulative to the twelve dollars and forty four cents outside of forty four day for that year involving this veneris we would find out very simply what it was for all of the class members multiply that by the what they call the card and we believe that finding and we believe mr interest stands and not only shares common issues with these class members her case is identical and to borrow the term this is a quintessential case for class certification not only do we have a a business practice or scheme which say that needed to and which has been exposed in this case we have a uniform contract without any question that every single class member signed we've got these contracts that they make a is the same for everyone and achates the rental jacket says what the contract is it's the rental contract signed by the individual renter rental brochures which are given when you run a car they give you the brochure and the rental receipt when it's returned just make sure i understand i understand that your position basically is that the rental receipt and the rental jacket and accordance with the merger clause that is in it that's the contract yes their position is child seat for example are g p s those people are not they're not in this class this class is people who accepted this coverage paid for it and were not given it we know them by name we know everything about that what in the voucher di rely on in new clients individual kline that the insurance was paid for but the voucher terms your honor the voucher when for example mr nurse rented to be equal in scotland on  online and then printed out the voucher it's a receipt that says what you're getting they're testimony from the defendants and this has to be because otherwise they couldn't keep track of their business when the renters bring that voucher to the rental counter of that information is put right on the rental documents and we have it all on the face of the rental document the court did not have to look outside the four corners of this document that has a rate code which incorporates of the  the fact that this insurance was to be provided so the valid jurors number one should not have been considered violates the parole evidence rule number two even if they are considered we know as they have admitted that every single thing on that boucher is imported into their system and they discard the boucher's so the question is can they track who is in this class absolutely we know everything about these renters if they sign a uniform contract absolutely the court's ruling violated the parole evidence rules and the court made a clearly erroneous finding of fact because the vouchers cannot alter that rental agreement because their terms are incorporated into the rental found that your client could not bring a cause of action for an authorized insurance inside of the boy tell case and that's what's before it's whether your client can bring it or not and am i with was going to discuss and i will if i have time at the end but why don't i don't dive right into what you all are i think asking about the meat and potatoes of this argument of although let me first there was a mention about what we've been calling the cumulative for preemptive issue let me just touch on that very briefly the judge said arguably said page it was order that statutory claims cannot be used to circumvent a private right of action that may well be in certain circumstances but not to us hypothetically i suppose it would be possible to have a both  situations where he would be wrong he's not wrong on that in this situation because doesn't she have a klein asar are you saying that there's no article three standing in this case no your honor what i'm saying is that based on the judge's findings here that i'm just talking about bodies that are graff is talking about article three standing or spare graph on page eight right around it is talking about article three standing is it your position that that the plaintiff has no article three standing no we do not but what we do say is that in that room when he said that it is in the factual circumstances here that he is found it would be impossible for her to have an actual adopted award because of the nobody is acting as an insurer that would be based on the six twenty four one fifty five know your honor of what we think the judge did was there may he may have conflated standing with commonality now when you get to judge yes i think we do your honor because the judge several times talked about commonality in his opinion and part of the i'm sorry are parts of your honor i think it's implicit in the opinion right from the findings of fact that he made about the the the different contracts that would have to be looked at here to establish a class remember he found that the only way of looking at the three documents that you all have in front of you the rental receipt the rental jacket and the rental voucher the plaintiff appellants are trying really hard to tell you don't have to look at the voucher that his looking at the voucher was wrong they're saying it was u nnecessary extraneous whatever well the vouchers had to be considered big by the judge and he did consider when he awarded her her damages if you're there in a catch twenty two here they're saying don't look at the values the values aren't part of the transaction even though they're specifically referred to in the other documents and even though they supplied two key elements of her contract claim that in the rental jacket and in the rental or seat there is reference to either one or two million dollars for the coverage the only way you know that she had a million dollars with the coverage would be to look at the voucher the voucher is what supplies that additionally the judge lifted the voucher because he noted that in the rental receipt it said she paid nothing for s  pay well that's kind of interesting on her because i understand that's their position and actually to be even a little more precise what they're saying is that we responded to their discovery requests and produced a spreadsheet for them which gave them every member of their alleged class well that's not correct your honor and we argue in the brief we point out that they asked for that information certainly and as we're permitted to do under the discovery rules we gave them documents from which the class could be determined and we did that and there's  the the the discovery i produced the spreadsheet and we in our answer said we are as we're allowed to do we said we are producing the documents from which you can the class can be determined but because of the files the way the the way information is kept avis budget just gave him a list of all of the people who traveled on preble vouchers once again vouchers which they is a my question was their position is a record shows the amount each ranter paid and if you could just tell me in one sentence you say the records didn't show that produced for them was a spreadsheet of a list of names of people that traveled within the time period under an s eight rate code now they said ok that's it well they didn't drill down into those names because and we've produced and it's in the record an affidavit of a gentleman named craig repel he contacted affordable car rental which is one of the hundreds of brokers that  avis budget deals with and all of those brokers have their own form of vouchers that's why the judge was so concerned with commonality so concerned with what did each of the renters think they were getting and the only way veneris could determine the only way she could prove that she had one million dollars in coverage was to look at her voucher and the only way that he could determine my country determine that by did know she had a least a million on the run and check out her from long jacket but i suspect your honor if it had been a dispute on that rental jacket in a lawsuit the question would have been is it one or two million it would have been a million to fight for what was the term that was a do ok the world i want to go back it's page eleven of your breed you explained to me that the plain the first part of it the first theory is adopt the based on contract the second theory is that the insurance based claim is superseded controls preamps whatever and you can't have a claim because of it would be it would make the insurance remedy superfluous or whatever you still got a claim or she does based on contract that's what you owe me age eleven of your brief promise because it failed to do so so mike so i'm saying whatever the judge may have said whether it's right or wrong about preemption in the insurance  brain i think we are going to i'm getting low on time here but i believe there was a discussion about the merger issue and it's you know they've apparently it's undisputed they don't really argue that the vega case which is this court's decision that says class actions are inappropriate for where you have contracts with differing terms and they realize that because of all these hundreds of other vouchers form of entres that they're going to have a real problem with that if the voucher is part of the contract term well so they are telling you that ok the vouchers not important question your honor and the answer is no they say absolutely yes and that when we produced that spreadsheet that that that that answered the question but the affidavit of craig repel which is in the record he went back and he drilled he contacted affordable car hire which is the broker that ms veneris dealt with and affordable car hire gave him five vouchers for members of the purported class that are listed on the spreadsheet and those vouchers are attached to mr repels affidavit which is part of the record here and if they do not specifically mention they don't resolve the one million two dollar one million two million issues what the coverage amounts are and they certainly don't they are not what the plaintiffs represent them to be they destroy commonality when they when they are considered if if these people are in fact parts members of the class there is no commonality because there is no commonality are not yes and tell me well the the voucher includes what the rental receipt says which is the rate code both of those things say with this rental you get additional liability insurance and the avis records document that paste on that code so you don't need the voucher to prove that because of vouchers just a receipt showing you that this rentals for him as a coach and when they when they bring the voucher  matters they just contract with these people to sell rentals at certain rate codes and those rate codes apply certain inclusions such as insurance or do the other vouchers in the record from the other brokers the other vouchers that they have with e s a recode say the terms and conditions of this can be found at this link you pop up that link which is in the record and it says avis budget applies a million dollars of insurance with this right ok but they don't have this million dollars for the farmer enters always so so all the avis has to do is look at the rate code they know exactly if it includes the insurance or not and as for the claim opposing counsel made that the essay reiko doesn't show additional liability insurance so here's the rate could she chilling all the records then you drill down there's a whole information sheet for each rate cut and this would be d e ninety two five exhibit as twice additional he put insurance so it is absolutely in all their records that's how they know it otherwise would be absurd because they're saying we throw away the vouchers that's why we there's no ascertainable how large to us to make this potential class i have no idea i can tell you that you're gonna be actually have in the record two hundred thousand two hundred metres yes and we've actually given them notice but if i could just show one other thing to you it's in this discovery that they produced we sent them into robert's provide us a list of everybody who got a million dollars in this at that time they were saying the fake coverage of the self insured covers is contractual coverage and they gave us a list of two hundred thousand people and on that list and i can show you this this is in the record it's at exhibit two thirty three on page two and there's an excerpt of it in the reply brief on page twenty four this shows everything about every renter the rental agreement number the reservation number the rate code their credit card number their date of birth how much they paid in the voucher how much they owed after they return the car say the were a day late and they owed more money shows actually the voucher amount so when they say you need to look at the voucher or you need to get something like that to find out what they paid in emphasis records in this spreadsheet and i cannot bank give you a copy that to look at it i have  even says million dollars and that's what they give us the names we have two hundred thousand these people we gave notice the twenty thousand these people and it shows everything we need for the contract it's all in there so not only is this class ascertainable the classes ascertain it's already done there's nothing more to find out and for instance we also took deposition of their people and we got something called the blue monetary screen which is one forty three eighteen  one forty three eighteen exhibit eleven this screen which again is an atheist but just records that they get when they input all the voucher data into the rental at the time the rental game it shows what she paid i can tell you how much gas she had when she returned the car that's how much we know pay every one of these we added the district court air the district court erred in assuming that or forgetting that when the vouchers come in with the rate code in the rate terms it's also absoute into the rental agreement for some reason he thinks that a fortune five hundred company but audited by deloitte throws away the rental record of the vulture and has no idea what they've sold with a rental when in fact they know every piece of paper from it in part of the reason why your honour's because these affidavits the defense counsel refer to those were affidavits filed after the disclosed discovery and in the record we show those are she i'm affidavits because they contradict rental was what the real terms were or what was paid and all of that is in the records and more and all of that has been provided in discovery to us end up elsewhere and if i add one other thing they said we didn't have the names but when we sent out the notice before i think you're over your time yeah yeah why don't any more questions i have to be fair you go over your time ok thank you thank you mr norman thank you honor i don't know about five seconds but then he's got to opt out of what you say and he's got the burden ok i mean we're going to go through the record i mean it's  case is submitted the next case of the more