address that i want to point out first that there's two published opinions of this court that accepted twenty three of petitions of motions to reconsideration months after the initial opinion and both of them country defendants argument affirmed the status quo they both involved in one would involve the defendant losing filing a motion for reconsideration than successfully appealing and then the other one involved a plaintiff in the same situation so time was not raised in remain and and here its granting or denying a motion for class certification and with that said is is the time to appeal is restarts when there is a timely motion for reconsideration and it not only says days yes that's true well we did ask within that time and we would have had the court not given us a date the filed a motion for reconsideration we certainly would have some one way to look at it is essentially and when you asked you also said something about what you essentially there was an oral motion and adequate our own motion at that point i think that's absolutely correct and again we we would have moved immediately to the appeal stage if we didn't have that opportunity before the fourteen days were up if the court had said no you can't file it when the district actually mean anything about when you had to file an appeal right no what we did is again wait ten days after the order within the fourteen days we wanted to clarify when and where if it was going to be allowed because we were after the motion cut off so the district court very explicitly needed to give us leave or we wouldn't have been able to and we would have had my one hundred million after the motion on the day we were passed the pretrial motion cutoff so the following the motion for reconsideration was an order granting or denying class certification we sought to certify a class in that order the district court said no we discussed rule twenty three on the courts and you can't call it that you can't just change but what it is he had a d d certified it yet he did certified it initially and then the science rush if that was your position then all you would get to litigate is the motion to reconsider well then it would incorporate the prior reasoning i mean ordinarily  amended in two thousand and nine i believe the only change that i'm aware of was changed from ted to fort teen which wasn't actually much of a change because it went from business states to calendar days but in the case of person vs writing that was twenty fourteen and that like other decisions were appeal twenty three of appeals of reconsideration or filed afterwards but both orders were discussed in the opinions so i think that the court could make that view but we're talking about whether to certify or decertify if it's a close question it's a really big deal and it can and it can result if we get it wrong and sometimes proc corr to do sometimes i did it's a really big waste of time and money for everybody so if a judge says this is a close call and you've made a good point i might i might want to rethink that let's let's pause the action here go brief it do a good job i'm going to give you the extra ten days what's wrong with that why wouldn't a judge have the discretion to do that why would court want to get more hay and require a real strict compliance with that deadline there's not a statutory mandate here for this order i it seems to me that quick trial court judge has time to do that here i i really agree with that and i think that what you just said is very much in accord with what the court said in briggs which is the the district court's order denying consideration specified why you know and even though we disagree with the conclusion reason it says that is because you know in the mean time it's a big it's a big pas that's been hit possible and that's been hit on the medication so why shouldn't we be concerned about the fact that the rule twenty three doesn't say you know or more time if the trial judge thinks i was has fourteen day it doesn't say fourteen days and but i think again the reasoning and briggs is stronger and it again involves a ten day rule that it says is strict but we nonetheless will allow that period to what was the true what happened brings in briggs the they moved i can't imagine they moved within ten days for reconsideration and they filed the full motion but it's just i've never seen that happen in district court in where did the district judge go wrong in decertifying the class there's a there's two places of in there's one very simple initial basic error that it made in the decertification order and that was a pla has the aggregate sales of a product that he'll ledges was unlawful lease sold fraudulent lease sold dangerous and subject to full refunds who only has the revenue from the defend it that doesn't include the retailers mark up does not have a valid damages model under california law i agree with the district court that there are the retail prices that consumers paid is another valid measure and in fact it's a preferable measure because it's bigger for the plaintiffs of it but often it will not be available in fact in retail case all you're outta my position gifts essentially that at least you should get the that means that if i mean i understand these people would never be able to proceed visually but if they did they would be able to get more damages they well i think that most class members even if they were able to sue individually they still are not going to know the exact retail price they paid if it's going back five or six years that they have a right here to be a bear rare day going to get a very  yeah and i mean are are quite clearly good guests and we have the m s r p which is another way to go and what our motion for reconsideration was was telling focusing on first of all that we could use the wholesale data and then also pointing out that if we must try to put these retail markets are we have methods of doing so in that is in the evidence that is in the record no we didn't cite in our opposition to the certification but that's wasn't our obligation our obligation was to show we had a damages model that could be proved classed and we certainly did cite in our opposition to certification our opposition to decertification the sales data we had the sales data when we filed our initial motion we cited back to that documentary and and gave them that number so at all times both the original certification order and at the decertification order we had the whole sole data and that is all that we really needed to have in m wanted to clarify the record it was timely and in fact well it depends what timely means i mean this is a funny situation because it was a timely motion to reconsider according to their homes finally consideration right well and the seven circuits decision and blair both of which said that by timely filed it meant when a motion for reconsideration was filed within ten days of the certification order and it also cited the supreme court's decision in healy it which it explicitly said it was not dealing  situation where the time to petition for a hearing within the notice of appeal had lapsed and so it wasn't dealing with an attempt to quote rejuvenate and extinguish the right to appeal and so i think the court's decision in briggs if it wants to apply that to the twenty three of context here actually address the timing decisions what i would say is i went back and looked at the dock and the dates that the appellant provided were correct august thirty first and september fifteenth but in fact it wasn't just the switch from ten to fourteen days that happened in two thousand and nine it was a switch under six a to not including weekends and holidays and actually if you go and calculate it and i did the petition there actually if you count labor day which was monday september fifth was timely filed on the tenth day there's not a single decision that has been cited and which anyone would find his emotion timely and what he learned we do with the idea that it's just resign noted that the status conference here there was discussion about their desire to file a motion for reconsideration yesterday by there was some discussion about what he was going to do yes urged by a so i think it's important to clarify what happened a status conference and we have a transcript is in the record we do have a transcript yes so the transcript and the record of what happened there was parent came in there and asked to file a motion for a resort a vacation and the judge said he wasn't going to be able to do that and we said well if you want to file a motion for reconsideration that's what he wants and the judge said well it's your right under the local rules to file a motion f reconsideration if you want to do that go ahead there was and local rule seven eighteen which was not contrite which was not adjusted in any way by any scheduling order allows in the central district of california for a motion for reconsideration to be filed at any time and so the judge reasoning behind not allowing a district judge to just a just twenty three f would mean the district judge would have to know what they were doing and i think right here when i when i say i mean the litigants need to explain to the judge what's happening here i use for you because we give the district court judges a lot of discretion we have a lot of respect for them doing their jobs and managing their dockets and why would we want to take this tool away from them if they think they might have bottled this kind of a serious decision tree issue why maybe got it wrong and wants a chance to take another look at it to make sure to come back on appeal and have the whole case come back because that something was wrong fully decertified you know that's my that's my point ok so if you just go to that hypothetical i think you think it might help the district court judge i e the district court judge wouldn't have to concede would have to entertain a motion to reconsider i'll give you that but if you have a conscientious district court judge and i think we certainly do here who wants to take another look at this to make sure i got it right why would we want to take away that discretion this is not just a well i think the problem comes from the sort of in each specific instance it might make sense to do that but the overall consequence i think is what the court what judge easterbrook concerned was in in the case in the seventh circuit the gary case which is essentially renders that fourteen day window no every district judge and every court could maintain their own time period by which a twenty three f period twenty three f interlocutory appeal could be filed and all the sudden the mandatory and strict fourteen day window becomes whatever a district judge wants to do i completely agree that a district judge may have good reasons for why they want to expand the time for a reconsideration motion to be filed but i think it's incumbent upon the party who is asking for that expanded period of slip into in this case a different argument which is that in this case you think he didn't do that well i think both that the district judge did not do that here judge brought it just like i said why should he not be able to when i think that's that's what i was trying to explain i think the consequences of that decision are more you end up with just different for all the sudden fourteen days becomes whatever any district judge wants to do and i think that inconsistency is a pro it up for you and i am i mean i have a sense of what happened there but i haven't actually read it writing it was if he wanted to file a motion for reconsideration he could do it on or before a date certain which he eventually did file and that was out of time within twenty twenty three if again there's not a single case that would yes so again i think that if this court wanted to apply what it did in briggs which is to say in twenty three if we're going to allow a timely motion for reconsideration to tell the time period i think that's a logical decision it well i think it was supposed to come to the circuit and said you know please extend the time to file a petition for leave to appeal by thirty days because i'm going to file a motion for reconsideration stric would we have the authority to extend i don't think so i think but i well i think the court well twenty three of which is probably good about a supreme court then goes through a process and ultimately becomes a rule i think this court has the power to exercise its equitable powers and for example there's the doctrine of unique circumstances which has been discussed otherwise which was essentially one questions why should i come this come with then that ok well struck josh specifically i mean certainly came the impression that that would be a timely motion to reconsider even though you are saying it wasn't taught me very strange well i think there's the good here is where the third circuit addressed this exact question judge resign which is to say it can be timely within the district court's judge own docket for filing a motion reconsideration that does not make it timely under twenty three f within that fourteen day notice of appeal in every single circuit that gets into this issue has denied appeals in this exact situation the carpenter decision the new  when comcast the decision the supreme court said that a model purporting to serve as evidence of damages in a class action is to measure only those damages attributable to that theory and i think this court in leyva talked about how the petitioners there had put forward a nuff evidence including payroll evidence and the like from which a party could the court could feasibly an official calculate what those damages are here discovery is closed and we simply don't have that the substantial number price there's no evidence their record that for example nutraceutical wasn't for example selling the product at a wholesale price of thirty dollars and that customers weren't paying twenty dollars because they were marking it down which is something retailers routinely do and so i think there's no debate i mean there's an attempt to say this is about judge bharat requiring precise calculations of individualized damages that's not the case judge brought isn't requiring precise calculations we're not arguing for that to judge pies this point we're talking about how to we get to a way to feasibly  efficiently calculate as comcast said only damages attributable to a full refund theory and the only way to do that that we know of here is the average retail price in discussion at the certification stage that's what was talked about in his opposition to the motion for decertify stage here were it and the court made clear it was dealing with this that that early stage here we're talking about after discovery is close we're about to go into trial and there's no evidence at all from which a judge or jury could do anything but speculate about whether or not the numbers in the record actually bore any relation directly to the plaintiffs out of pocket costs and korea supplied california supreme court said that's the cap plate this ownership interest and so we're talking about the actual reach out price paid for by at least a few people you know we have that as well we have one person who we have the one person who doesn't even remember his deposition  discovery this is not a high burden plaintiffs in many other cases i've seen do this routinely it's not that hard you can you can get an expert be don't even need to you can get spins data you can get all so you have all sorts of ways to do this and they the judge collins told them out to do it they said they were going to do it and they just never did i mean i go back to comcast it says you have to have a model purporting the evidence of damages has to measure only those damages attributable to the firy and they just don't have a way of measuring what the damages remedy that says that every anybody who comes forward with their action what they actually paid well get damages i mean that would be sort of the model i think that just film was talking about what's wrong with that well i don't think that's permissible under comcast i think comcast because comcast says your actual model you need to have evidence of the damages are only good i know that the model is that people are going to get your inch back and what they pay and just film and its predecessor saying you can have individualized damages and that's how you would do it you just say all right the remedy is anybody who comes in with their received can get paid well i think it's the plaintiff burden this is the implication at least if not directly from this court's decision and leyva is that the plaintiffs do have to have a w even at the certification stage which is their burden to feasibly and efficiently calculate damages it's not a high bar it doesn't need to be precise we're not holding their feet to the fire requiring great detail but they have to have some way to do it and leyva this court took the time carefully to explain the payroll prices would allow them to do it and in just film again the court actually took the time to explain that they had put forward evidence from which you could calculate those damages so i think there's a distinct difference there ok thank you thank you  the civil minutes is an e r one thirty one i think what the judge just said about placeholders makes a lot of sense we were told we had leave ten days into the fourteen days we could have at that point rushed out one probably offended the judge at least a little bit you know he tells us i'm going to reconsider this order gives us a date to file the motion we rush out one we waste the time of this court by filing a placeholder placeholder a moat petition under twenty three ok and then the second point is this is a case over one hundred seventy four thousand dollars that was their revenue in california over multiple will years and the class period if we were required to try to hire experts and engage in extensive expert discovery over retail margins at stores distributed all over california the case would have not been economical one hundred seventy four thousand is not a lot so  hundred seventy four is it minimum what they profited from any legal act if we prove our case a trial we know that they at least gained a hundred seventy four thousand dollars in illegal sales and that one hundred seventy four thousand should be distributed to the class even class members who might have bought it on sale they get a tiny windfall of a dollar or two above what they paid that doesn't mean that's permitted under california law which allows approximations ok thank you thank you counsel before we hear the next case which is gaulin and we're going to take a break for ten minutes