sides together so go ahead reasons st their appeal which is specifically and only at the district courts reconsideration decision is procedurally improper because it is not in order that is granting or denying class certification and nd regardless the district court acted well within its discretion in declining to certify a class that would be so broad as to include policyholders who only received a what we call a bachelor stray ssion concurrent with policy delivery given that there was no evidence that anyone was ever injured or reliant on a bachelor straight into purchase and that it is not coextensive with plaintiff's case for our appeal we believe the district court committed legal error because they refused to consider under rule twenty three dollars the threes predominance required and what was acknowledged and not disputed to be the need for individual eyes determinations on the key issue in this case which is whether individual class members even received sales illustrations from independent agents and brokers who sold l s d policies we believe that refusal contradicts the text of rule twenty three is not required by this court's decision and bersani zero and indeed contradicts the rationale of that decision which is that all of the text or requirements of rule twenty three dollars should be applied and would be reversible error in a court of appeals like the nd circuit where in petrobras they agreed with this court that there is not an administrative feasibility requirement they agree that manageability can be evaluated under the superiority prompt and nonetheless vacated class certification in that case because the district court had not looked at the same individual eyes issues through the rubric of the reliance so doesn't that eliminate the concern with regard to predominance here the district court said that once you define that class as every every if we're talking about our appeal right now we're the district court to find the classes everybody who received an illustration so by definition by by logical necessity once you have defined the class that way then every person has received an illustration i want to be very clear that whether it's in the definition or out of the definition the point that we are making here is that when the key issue in the case exposure to a sales illustration is individualized that has to be a analyzed under predominance and to your question you can't there is no evidence in this case that says every single policyholder received a sales illustration that plane of the record of the class was limited to those who received an illustration correct which was the narrower of the two definitions that's correct that a point of class representatives proposed so if the district court was correct in  eliminating the class on the assumption that if they got an illustration they presumably relied on it when they applied for the insurance policy why do we have to look at individual pl order to examine any further of the oldest racial well for two reasons actions let me make it three reasons although every time i say forget the rd by the time i get there the st reason is the premise of your question is exactly what we're here on you said if the district court defined the class correctly then why do we have to look at that that's exactly what our appeal is about really not i mean you're well we're saying you can't define it that way because you would have you have a predominance problem but i take your point to resign you're saying well if you've defined it that way now we have to look at predominance so my nd point would be you could always do away with any individual i's issue in a case by simply subsuming it into the class definition you can simply say ok we know because remember this is not this is not a case where the district court just looked at everything refused to certify he actually certified a class like this but this is the part that there just  if we didn't have a class action here what is more superior is certifying this rule twenty three b three class superior to other alternatives and sentiment is altered it is like that has to take into account what part of  into the superiority requirement really believes in the other the predominant superiority can simply be here's what it's going to look like if we try this class action here's the other alternatives and some of the things that the advisory committee notes  project but the notion that it's a predominant bit of the project seems a little extreme i think we're very careful in our brief we're not saying that every issue of class membership make has the possibility to read well i don't let's let's take a person as an example or mullens as an example in those cases the claim is that there was a disclosure made that was not correct if you if you certify the class not as everyone who received the disclosure which jumps over the issue but if instead you certify the class as all purchasers you know because it's on the bottle that every purchaser who got purchaser you still had a profile of the purchases but wait but you know that what you do know is you can decide that case on a class basis like this court pointed out and percent you know by the time you know that there is a total aggregate of liability the company knows how many you know volumes of whatever they sold you know that you can try that for everybody you can then have a determination of who is actually entitled to it here it's for a different reason and someone that just thomas been emphasizing are connected to something else that is that that this is a very  so therefore the question is the same is to me as as the purchase a question of whole or the people who because st you could have just signed that or you approves up to the in the class right and then you're going to get to the question of ok who's in the class and why isn't that the same question as hope the milk is a different question because again in this case that you have to actually show who received it not question that there are questions that pertain to the class as a whole legal questions right common questions which of the class as to find right now  and that can be just cited legally which it hasn't been yet but it can't be right so we still then we have to go and say well who is entitle to a remedy for that essentially who's in the class and therefore it can get around me and  i still don't understand why that's how you're telling me that that is conceptually as a matter of predominant saw different from the question of who bought the milk will let me let me back up once we're here on is what standard has to be decision is that courts had erected this gate before you even got to rule twenty three and said this is an up or down requirement if you haven't shown it to us you don't get to get in and the problem with that what this court said is because there are things in rule twenty three dollars that call for you to do those comparative assessments it may be in a low cost product case where people are paying seven dollars for a bottle of vitamins that don't do what they say and every purchaser got the label that the individual is question of saying all right did you buy or did you not buy or you and and by the way in a case in which aggregate liability is not going to change based on who's in the class or who's not because we know who sold it that may not be a cook a sworn individual ised issue would predominate but what we're saying is that the that's absolutely correct and we and i strongly believe that i mean i think that's very clear from the decision that when he does here's the easiest way to say it the judge never said i have an individual ised issue of figuring out who received the relevant sales illustration am going to weigh that against the issues that i found common and here's how i think it came out instead at the excerpt of record twelve what he says is the courts have to address these concerns under the manageability criterion of the superiority or appointment therefore the concerns motivating the court's prior decertification order are no longer valid justifications to find a lack of predominance but i thought i'm coming from the same viewpoint they're just burst on is coming from how is that any different from trying to determine who the class members are in her purchase hypothetical i mean the question is did you receive an illustration in my wrist for you apply for your policy  response is that what we're talking about in those questions is subsuming an answer to that question it is subsuming the answer that we have purchaser classes so it can't possibly be a predominant  inquiry which would involve an examination of each putative class member to st ask did you receive and rely on this illustration before you applied for the policy and what  find that it doesn't promise that that individualized issue does not produce an eight percent you know decision just not direct a rule that these get automatically certified and in fact what it does and the mullins decision it relies on says actually in low cost product cases that deal with purchasers there are lots of reasons why that may not be an individualized issue that would defeat what is common with the district court presuming that every member of the class who got one of these illustrations relied on it before they applied for the policy i don't think there's anything wrong with that i think what's wrong is saying i don't have to ask the question of who was exposed to one of these illustrations and element of the case because i put it in the class definition i still have to it is admittedly still an individual as akin to claims administrator in a class action simply ask each putative class member did you receive an illustration before you before you applied for the policy well for all the reasons if the answer is no then you're not a member of the class well for all or is yes you are well now because we have every time someone answers that liability goes up by tens of thousands of dollars we have an opportunity to contest that and this is what i just want to be very clear what the judge saw in the did here is in fact what decisions like mullens say you should do which this court followed him or send you which is to say don't refuse to certify it outright certify it as you've got a lot of procedural tools under rule twenty dollars c and d and he did and after several months dealing with it this is before we came up here the last time he said through a spontaneous order to show cause why this shouldn't be decertified he had tons of briefing on it and he said i have now examined all this these individual eyes issues really are going to be the main event they completely overwhelm the case what went to trial what went to trial work class claims on omission claims both fraud and u c l and individualize claims on illustration which is the equivalent of this one and those claims were that it was as plaintiff says it's a bait and switch claim he said that the it's the same illustrations the sales illustrations were deceiving people into purchasing the policies and they say and this is in their classification breece below that are in the record here the reason it was brought that way was because they needed to negate the other types of disclosures that came at the time you got your bachelor's straighten he had decertified that it went to trial individually jury came back ok but can i just one sentence to finish up that before i turn i think that my point is that i think it is you can write the predominance requirement out of the rule for things that are actual elements of the claim it may be that the district court may come out exactly as both of you have said that you think they should come out in cases like purchaser cases but that is in the case in which it has already been certified they've seen that it's an individual ised issue they understand  the in all of this they actually have to do that analysis and we this court would be in conflict with a court like putter across in the nd circuit if it just wrote it out now turning to there's we believe very strongly that this is procedurally improper there is an entire body of motion to reconsider the kind that you have been litigation in general which suspends the finality of the original order and i cather that you're not contesting the notion that i about the same thing i e that he didn't certify the class and the reason that they were concentrating on the motion to reconsider is because that's where he brought up this thing about the the purchase someone the purchaser current because he made a factual mistake the st time so i don't know that they weren't appealing from the whole but nana so to speak ok but i want to adjust both so i know you're going to you may because of your question may want to granted interlock atory grant interlocutory review of this and there's a whole body of case law that goes back to decades that says it is reconsideration order and you're not granting it and it doesn't change the class in any way that's not an appealable order now their argument now that we've gotten on appeal and asked us to brief the person propriety is well then just view it as if it were an appeal of the class certification order itself apart from that not being what it was then it would be on time they filed within fourteen days the judge and thirty three he says that a party re noticing a motion previously filed may rely on the previously filed supporting documents however this act is still in effect the filing of a new motion since the really notice of the motion acts as a new motion offense were authorized to file an opposition to the motion and that's exactly what happened here we were allowed to file opposition to the motion they were allowed to reply to it the courts of appeals have made clear that rule twenty three dollars f is purposely unforgiving there says that doesn't deprive industry order of the year but at the same time rule on a motion for rican so i think the premise behind your question is well that puts them in a pickle the pickle is the local rules are really clear what you have to do when you file a motion in that court and you have application which just i mean i know your stand why you want that which is something the insurance company is bound at that point because how else are you going to communicate but on the other hand what this for what we think it is but our arguments are actually much different i think that the judge never said hey look i'm issuing a rule that it is legally impossible to form a contract it is legally impossible to form a contract after you have reviewed the illustration or it is legally impossible to rely on illustrations during the free look period he doesn't say that anywhere that's putting a lot of language into what he said what he is saying is he's saying i've heard this case for many years this is not playing just theory plain as theory is about the purchasing decision the purchasing decision happened during that pre sales illustration time period he is saying that when it comes at the exact same time of the policy delivery in a battle a stray ssion that's not plaintiff theory and there is no evidence in this case four out of the five plaintiffs never reviewed their vachel astray sion the th one in a deposition said she couldn't remember wh that yes we have been using shorthand for many years in this case at this point sabbat is that the the st ones the sales illustrations are generated using our company's software but are provided by independent agents and brokers the batch are printed out with these batches of documents that go they get sent out to the agent i have at the time a policy delivery and so what he's saying is there this isn't there this isn't their theory there's no fear and there's nobody here who claims to have ever relied on a  a purchasing decision and in fact at that time there is a very different series of disclosures you also have a buyer's guide and a policy at that time that's why they brought a bait and switch claim before because they wanted to say we were b in by the sales illustrations by the time we got the last illustration the policy the buyer's guide the buyer's guide explains clearly what this guaranteed value guaranteed interest is plaintiff or the only plaintiff who even claimed to have reviewed her sales illustration you know was asked about that it's in the buyer's guide it's there so our our contention is that this it certainly was not an abuse of discretion to say that when we have sales illustrations that depict how you're going to use the policy for income t illustrations that don't when you have plaintiffs who claim to have relied on the sales illustrations in making their purchasing decisions as we know from the three week trial he sat through and heard all the plaintiffs talk about this but we don't have anybody who said who says we have for the five plaintiffs who got bachelor straightens but never saw them and the th can't say that she relied on it in making her purchasing decision and these are different sets of disclosures because not only are the illustrations different but you have a whole bunch of other  everyone who bought these policies received an illustration that violated the statute the court has already found that every illustration violated the statute both the sales illustrations and the bats illustrations because they some customers may listen to the sales pitch it may not present present an illustration to make a statue doesn't require actually does require that they get the illustration eventually and then it gives them at the time of delivery no later than delivery and then it gives them at least ten days to review the illustration before deciding whether they want to commit to the policy that's a trunk welcome into the policy or rescind the contract either way they're not legally obligated on the policy if they invoke the free looks that what the insurance company is the insurance company is it's essentially a one a if they die if they die if this is life insurance and they died you know five days in and hadn't rescinded tha have to have paper for that typically they would pay at the time of delivery or even some people pay at the time of now the free look statute is essentially a trump card against all of their arguments because nobody can be legally obligated on these policies until they've had an opportunity to review the illustration and the policy that's the entire purpose of the free look statute and all this is i mean it's the same as we see in consumer loan financing where you have three days to back out of your home mortgage loan once you sign all the papers but that doesn't mean that you haven't entered into a binding contract it just gives you a unilateral right to rescind it if for some reason you change your mind that may very well be but your interest in that the same situation that we have here with these policies probably i'm not familiar with those particular statutes but i'll accept that it is the same thing but it doesn't matter because what's important is a cut and the insurance commissioner and the attorney general have pointed this out in their make this brief the consumer can rely in deciding not to rely on the about all that and that's not what your suit about no i don't think that's true on i mean we challenge these illustrations as containing misrepresentations in violation of the is these claims are not bait and switch claims anymore these are pure statutory claims and the trial court already found that all of the illustrations of the bat in the sales violate the statute and they they misrepresent for example that  found that yes he did on summary judgment i think and he found it we just back to all of the illustrations because the bats and the sales illustrations are identical with respect to the claims in this case one of which for example is that they misrepresent that there is an annual minimum guarantee of two percent interest in fact it's not an annual guarantee it's something else and he found that that violated how they presented it violated the statute so if i illustration before i apply i can be misled by that i can be equally misled by that when i get my illustration at the time of delivery then i read the illustration and then i  don't that's correct and some don't receive one upfront and something and the sooner they do receive a beverage one has to receive one or the other hand delivery of the policy so damages you when you're say that these are all violations whether they're they up front or the batch illustrations it's not going to affect damages because the damages are presumably the same either way but if we find that you did not properly appeal th of the total people would not be part but for the named plaintiffs they would be the they'd still have those claims that's correct and they did district court judge has already said that's still a violation yes ok and with respect to the procedural propriety issue there are two reasons why our cross appeal is proper st as judge burns on refer to the whole banana idea that what we're appealing is both the original certification and the reconsideration order when the reconsideration motion was filed within fourteen days of the original certification order  the language of nutraceutical the lambert supreme court decision it rendered the original decision no longer not final for purposes of appeal when the district judge denied without prejudice the motion f reconsideration and said you can notice the motion that didn't all of a sudden render that original order final i thought it did if they didn't make any changes to the original order at that they did make it final i'm referring to the denial of the reconsideration motion yeah deny without prejudice well there was no change right no material change in this preserve the status quo and because you hadn't complied with the local rule you re noticed your motion but you did it more than fourteen days after the court had ruled so well we had already five we had already filed the motion time to reconsider yes yeah and then by my calculations you had until september two thousand and four to file a notice of appeal and you didn't do that well notice of appeal came later the notice of appeal came within fourteen days after the order on reconsideration it but then how do i square that with the supreme court cases that say in our th circuit cases that say you know rule three rule twenty three of appeals are twenty three f when says that you can appeal the the certification or denial of certification of a class and they say if you know change anything about the certification you're not granting it or denying it so it depends on the bottom line not on the reasoning york you're trying to appeal the reasoning of the motion to reconsider as i understand why you've done it i mean because and but certainly it would have been better are had you appealed the original certification are limited certification in timely manner and then you could have relied are not reli that's that's all any you have to win be an appeal in a nd because it wasn't changing any bottom line well the i think if we look at the cases there's not a single case that the disk that defines sort of what the status  reconsideration order we did and i was next in court to for example the carpenter v boeing case which says that if they reconsideration order results in a new quarter then to the extent it its previous decision it's with respect to the bachelors christian group it said i was incorrect the my rationale for denying certification as of the bachelor straights and group was incorrect but then adopted a new reason to the go to the difficulty and reasons that we oppose their position but i want to make the point that the he or the court found seven coming all of the important issues in the case were common name plaintiffs need to prove reliance this is was held in in re tobacco two cases by the california supreme court it's been echoed by this court in cases like sterns vs ticketmaster only the name plaintiffs because of the california statute yes ok only the name plaintiffs need to rely and what we have here is that the teachings of birth say no have to apply under the predominance inquiry as well as under the superior ty rubric otherwise those teachings would be effectively useless at least where you have many common issues as we do in this case now i think the or say no as applied to predominance are there where you have many common issues in the case then the when you have individual class membership issues courts are not supposed to throw up their hands they're supposed to roll up their sleeves and and that's essentially what judge sound the realized when he read the percent no opinion that the amount of effort that this circuit expects district courts to undertake when you have a heavy dose of part of common issues as we have in this case and he then found that the individual the need to make individual class membership determinations did upset the predominance of common issues that he found throughout the rest of his opinion everywhere else in that opinion he's finding common issues on reliance on violation on injury and restitution and i think i've even  inadvertently omitted one rescission he found those are all common issues now this court should affirm on any basis that is supported by the record so even if  judge didn't correctly articulate the relationship between her saying in predominance it doesn't matter because on this record you have heavy predominance of common issues you've got only one significant issue that is not common that's the class membership issue and that is an issue that is individual in every case it's individual by definition is this person a member of the class and inverse say no sometimes it's were complete all you'd have to do is just look at and look at that document in some cases a list of these records are not complete and so for some some people they would have to submit a declaration or enough a day to establish their membership in the class and if they don't well then obviously you would prevail as to those as to those people because we bear the burden of proof but we submitted  a three proposals from either sky every vendor sister how the class membership issue could be resolved with respect to three quarters of the class and then as to the other quarter they would they would be required to submit declaration but his conclusions seem directly pertinent to the project twenty predominance determination as well which is yeah it might be a pain but it's not that big a pain essentially that's right that's right he said it's not i think because we now have the teachings of are saying oh the courts should roll up their sleeves instead of throwing up their hands that's what what he decided to do so let me ask if we if we were to affirm on the in say the discord did not abuse its discretion and certification and you said the discord has already found violations what's left to do he has to go back is there damages are different based on the  rejected the argument the council referred to that this case is about the purchasing decision that was an argument that they made it was rejected in the reconsideration order i believe p p notes that hey i've already rejected that you know the fact is that every single one of these class members receive an illustration that is identical with respect to all of the claims and every one of them should be included in the class  i don't i think i got an i have to know something about rule twenty three rule two thousand three hundred and twenty three f in the advisory committee notes i mean if it's not a rule that traps this court into denying a  motions for reconsideration and here the motion for reconsideration a resulted in an order that adopted a basis for excluding one quarter of the class that had  never been made before that we could not have raised before and there's nothing about rule twenty three dollars that requires this court to say oh we're not allowed to to look at that we're not allowed to look at that there's just nothing in the rule we  the there's a myth that was a material change in the order and none of the cases say that when a court materially changes its rationale then you you still cannot a clear from all the circuits about that there has to be a change in the certification the matts decision from the th are going to that and we don't have a case you don't have a case you only have the unpublished when a lampard case that's absolutely true but all of the courts are unanimous now and the cases are because or they could have been so they filed a motion to reconsider and let's assume that i knew your theory i understand there's a timing problem with that but suppose there was a trying problem with it suppose that they hadn't had this clip where they had to file it twice you would still say they couldn't appeal from the motion to reconsider so what should they have done so i think hypotheticals crossed each other in the sense that what i was going to say and then you can tell me whether this is an answer the question is you're asking the question the wrong point in time the answer the question is they should have filed a motion that complied with the local rules and we would have none of this problem i mean the notion to reconsider that there wouldn't be a problem because the original one would have been fine now and at the decided in either one of them you have to appeal the right order but i think they all come up on our appeal the two sort points i wanted to make is that it can't be that just putting something in the definition of dissolve the court of predominance then maza would have come out differently you could have said as long as we just put it in the definition that everyone risk it's only the people who received this from honda now it's not a predominance any issue anymore because we're going to litigate in calling on marriage  issue that you're talking about and he concluded really yeah it was a problem but not big enough problem so that's my that's my nd point is that when the judge looked at it through the predominance lens and he decertified  said these overwhelm when he looked at this time in the superiority lens i would say that if you read his opinion he did not say that oh i certainly concluded superior he said ellis w has raised many valid concerns but the th circuit says to me that on the superiority prong there are these other options i can use of course let's remember he thought about all these options he certified the case he went through it and he did exactly what cases like mullens and percent which relies on this say to do don't refuse to certify it certify it see if you can live with it see if it will work he previously think looted it didn't work and it's very clear from his decision here that the only reason he changed his mind was because he thought it could only be in superiority and he thought that this  said which by the way in a passage that only dealt with an argument about whether individual eyes damages issues can preclude classification which isn't the issue here he said i think this court has barred me from even thinking about that in terms of superiority but i would encourage you to look at the petrobras decision because it does show you how there are two different comparative assessments that get done under each one and that it is the district courts that are supposed to be exercising discretion in the st instance and we just think it would be