proceed as a class action i would like to reserve five minutes for rebuttal if i might since i'm not sure what issues the defendants are going to raise in their presentation that decision was wrong as a matter of law although the defendants try to make it sound very complicated the fraud claim that it's a it's a mail fraud claim it's the it's the predicate act under rico is really very simple the claim that the presentation on the face of electronic slot machines and video poker machines the presentation that every player of those machines every time he or she goes and puts money in one of those machines in the hopes of winning  that presentation in bodies on its face fundamental omissions or misrepresentations that go to the very heart of the gambling transaction let me ask you question that taking place yesterday when you say presentation you're not talking about written words you're talking about what it looks like well i i'm really talking about both but let's let's focus on in the case of the electronic slot machines among other things is the period of the symbols on the reals on the face of the machine and the complaint alleges and i include the frequency of the appearance of the symbols in the case of the video poker machines it is very much of the use of words such as uses fifty two card deck shuffle draw other words affirmative misrepresentation you have the defendant saying in effect this is like you are sitting here playing with a one on one with a dealer and if you get a certain hand you'll win a few if you don't you'll lose in the case of the  slot machines i think what you have under any reasonable understanding of what's going on is very clearly a omissions you are seeing one thing that is the frequency with which the symbols appear and what you are not being told is that that frequency and indeed that appearance has nothing to do with whether you're going to win or lose on a play of the game it seems to me on the electronics class although you characterize it is primarily omissions that as you first started your argument that it's also an alleged misrepresentation by virtue of the machine itself is that another was the trade dress or the actual physical you know we're saying what you see is nevertheless i think this this case can be decided without deciding that precise question and let me let me let me see if i can get you there  ly it can be decided that way your honor as a matter of common sense application of the rules of circumstantial evidence that apply in every case internet record if there is as the complaint alleges here and you have to take that is as true a material misrepresentation of or a material omission either one and this i don't think matters playing occurs then we have proven as a matter of circumstantial evidence whatever as you say whatever you want to call it but for causation and proximate cause ation reliance the misrepresentation was important was significant was material in the decision of a reasonable person to engage in that transaction the district judge comes to the opposite view on the basis the reliance issue and it seems to me that's the one that we have to deal with that it seems to me show the district was wrong in the wrong or didn't need or the alliance or she was not involved deference to the district court now he made a legal heir and that by definition of the abuse of discretion if he didn't make a legal way or a body made a decision that we might disagree with that might not be an abuse you'd be in a different situation i believe it is a legal error to fail to recognize that circumstantial evidence is presented in the way that i just described and that can be done on a class wide basis is not sufficient to meet the predominance requirement i don't think that i don't think the judge has discretion to find that there that there is no predominance based for example as the judge did here on on on two that maybe people play these machines because the packaging is attractive or maybe they play them because table games are too expensive because a quarter to play slot machine and ten dollars to play to play poker at the at the table those kinds of considerations apply in every single case that involves of a fraudulent transaction if you think about a securities purchase somebody buys enron because they can't afford the price of exxon somebody b result of their pensions have to be involved in that where people don't have to gamble you know people don't have to i don't but people don't have to engage in most consumer transactions and indeed i would say in most securities transactions but the point is if if the defendants if the defendants hold themselves out in that market and they are they do have duties which are imposed by frau not to make material represent misrepresentations and not to make material admissions a question about the perception since it is very possible wouldn't the plaintiffs also my have to individualize reliance to carry the burden of proof let me let me answer the second question first your honor because i think that this court answered it thirty years court quite recently in the in the chase it decision involving trading cards if if the transaction is a is a phantom chance if you don't get it if you don't get the chance that the transaction promises you in that case they did in the court threw out the case in this case we'll edge we didn't get the chance we didn't get what was represented we didn't get what was what was promised or we didn't you know w a difficult time having as you described tension class it would seem that every single consumer fraud would be a class under your test which is you allege a material misrepresentation an act of play occurs therefore damage therefore by circumstantial evidence you have this common predominant so i want to take you back to the that they relied on the misrepresentations so it seems to me that in many respects from a legal standpoint i think that the district court follow that  for the for the following reason the injury that was being alleged in the in the case that you referred to was was truly an indirect injury it was an injury that was the claim was that discounts were not being passed on to the plaintiffs and that that was fraudulent here and what's different i think from many from the consumer the tween the consumer and the defendant when you go up to play the machine you see it you see the fraud and you act on it and we know that you're acting on it because it's there and it's material  we can prove that allegation and you act on it you don't have that those circumstances in a in a case like forsyth and you don't have those circumstances in many of the cases that the defendants rely on for example the cases involving national advertising and where the claim is that national advertising car advertising for example  fraudulent there the district courts logic is correct we don't know if everybody saw the advertising we don't know if the advertising was material to the purchase decision or not  wasn't wax at all so that's that's the that's the circumstance we have here that's the pint of cases that we have here and all of the other facts having to do with individual knowledge or or skill as the we get to the rule twenty three initiated it you raised whether we have to find that the district court had jurisdiction jurisdiction has been raised by your adversary and there's only one case i know of that's dealt with this  seventh circuit where they held that in the twenty three after cases we do need to look at jurisdiction so my question to you is in this case before we get to this wonderful outline that you haven't us don't we have to deal with your distinction to make sure we have power to make a decision well i believe you do it in a theoretical sense your honor i'm not none of the of the arguments that they have made on appeal go to subject matter jurisdiction none of them  private school made may be they use the word subject matter jurisdiction but i don't i don't see where there's a lack of subject matter when they don't have a primary jurisdiction whether they raise it or not we have to deal with jurisdiction that's our role well and you haven't had a chance to respond subject matter jurisdiction should proceed as a class action the issue before this court is whether the district court of used its discretion in denying class certification in a case where the class members are substantially in excess of twenty two million people where we're dealing with sixty five in a variety of categories from manufacturers to casino operators both on the high seas and cruise ships in the latest version of the fraud that is now being suggested to this court and i'm referring specifically to the plaintiff's reply brief and to the comments made at oral argument in which the allegation now district court to determine whether or not a concrete financial lost resulted from one type of play or the other and finally we have to that you know sometimes you have a real chance and other times you don't depending on which current incarnation you're playing why would that require an individual determination of law reliance on a misrepresentation where there has been a payment of money but it also requires that the misrepresentation cause in the words of the court a concrete financial  now the crime that is now being suggested years that the machines are capable and i phrase that very carefully because you will not find in either the allegations of and that is the machine would be immediately off and it would never make it to market in the first light but the allegation is that the machines can be set up so that on some plays of the machine there is a real chance of it can't be uniform across the class because every class member must prove a concrete plan actual loss to them and that's the problem we get into so if there's a real chance then you wouldn't have any different well there's a real chance then we get into the chance to chase and chase the council referred to in which he has there is a real chance what you have gotten for they have created this phantom chance for an area but on the other a discussion of not what is in fact pre determined which is the probability of results not the outcome of any where you have a rico claim that is based upon the payment of money and the fraud is based upon misrepresentations you have to prove reliance on the misrepresentations and there was some discussion this morning about whether this is an all missions case or a misrepresentations case as to the slot machines  allegations the misrepresentation supposedly are on the machines the images of the machines which you refer to the presentation of the machines which you refer to judge will and then the advertise the problem here is the point is only want you to look at one circumstance and that is the fact that the players play the machines the question however there has to be asked for each individual player why did they play the machines and furthermore as i think is universally agreed would like dump money in there instead of by using their money to buy a book or buy a dinner and you're saying you have to go to each individual's motive to the machine they may not be playing at profit as distinct from the stock market which you always play for profit is actually argument that situation of their claim is that these misrepresentations have missed led the public into believing obviously do the bill pulled but to a twenty two year old tourist as you say who may be simply putting money in a slot machine for entertainment and nothing more ads men make no difference whatsoever but as i heard the argument a little bit differently and that is you know people might have all kinds of reasons for putting himself in front of this what machine but once they are at least there's a latch there's a material misrepresentation you now so assuming it is material then they're almost is presumed reliance and therefore if you play and you lose you know part of your life is because four sides to make general statements about benefits somebody might gain and i would submit that it's not good enough to have images of spinning wheels where the only way you train those in the fraud and for the plant that's actually sort of the case you might be right in the end but yes so we don't go there on the merits yet the problem is with your assumption of materiality you have to deal with this court the plaintiff well we're not going to confront you with the requirements of proving individual eyes with reliance we're not going to allow the defendant no opportunity to rebut it it's a substantive wal required and then we see it used inconsistently in various circuit court decisions around the country in your view what is the relationship between the term alliance and the term problem i think comes to some extent from the fact that rico has arisen or we go has generated use of the term reliance where at least in the securities context and the second circuit has moved this change in terminology into rico in the gulf funding case what we're really talking about here is two aspects of causation in this case the misrepresentation or the omission and the but for cause of putting the money in the machine that's the tr in the context of this case you put the money in the machine you have to show reliance on the misrepresentations so we have the language moving from reliance but for causation transaction causation misrepresentations directly produce a direct concrete financial loss ok that's what in the securities case context is called loss causation again  circumstance we're going to consider because you still have twenty two million people out there who maybe it was demonstrated by circumstantial and or direct evidence that they played the machine for some other reason the latest circumstances but let me go to the statement that he referred to in his manageability discussion where he said that requires of the requirements of proving both rel and damages this case would result in millions of many trials now the problem with the plaintiffs is they say well if we can that the predominance we now have no problem with manageability not true once you recognize that all of this whether it's infringed presumption or circumstantial evidence is rebuttable even if you characterize the predominance requirement of being satisfied those individual issues don't go away you still have to litigate and you still have your millions and many trials and that's why that's get as in the portion of opinion that fundamental misrepresentation here we have not changed our position the complaint in this case is the complaint in this case it's says among other things that the misrepresentation is that there is a real chance of winning and there is the same chance of winning gambling people gamble because they want to make money i mean that's common sense that's the basic transaction at the very least your honor at the very least that is a triable issue of materiality that a jury is entitle to hear and to go back to my point on an individual basis what are they going to do are they going to cross examine people and say well didn't you know this didn't you know this this you know this didn't you get this ahead and at the end of the day for every single one of these individual millions of trials that they're talking about which of course we understand could never occur it is going to be exactly the same determination that the jury is going to make if you do it under a common sense application of materiality you look at the facts you look at what the trials you have to just have these evidence is going to the jury so that's why we put them into a class action that having a class action the same people coming in and doing up what i'm not saying your honor is that that in reality the if you think about what the evidence is that would be presented in each of those many trials and it's the same evidence is that in practical effect for for every person unless you know obviously if you have a wm who also says he's a professional gambler you may he may have a few more questions but what lackey tells us and i don't think this is changed notwithstanding counsel's comments what blacky tells us is you don't you don't do that discovery in a class action is not a fishing expedition you don't get out and get to go out and know if those kinds of issues are presented in you know in a serious class wide basis perhaps with experts perhaps with marketing people with psychologists whatever i mean that all that all about and merits and we shouldn't be talking about it but the of the real secure in your class action don't anticipate twenty two million people coming up to the stand oh no no course we don't have the circumstantial evidence or presumption issue in order to get across exactly on and on saying judge  i hope i didn't confuse the court all that i am saying is if you if you try to imagine what the trial on those issues is going to be like the trial and the class action is not going to be any different in reality obviously that the scope will be larger but the trial is not going to be any different than one person coming into court coming to court and saying i was the fraud by these machines which he's got absolute court there are there are there are narrower classes and subclasses that could be defined here there is a card class where the defendants have on their computers the names and addresses of all these people the amounts that were wager wrong if you look for example at a paragraph sixty in the complaint and numerous other paragraphs in the complaint allege omissions here so if that is the relevant consideration this has always been