critical reasons st claim to waive the issue entirely by using one page of their twenty thousand dollars word brief and they're passing reference way the issue and that waiver simply applies to mr frank beverly martin you know i was involved in moran scheme was pretty i mean in our interest you were talking about you know maybe six digits in a credit card number here we're talking about correct that at the classification settlement approval and entry of final judgment staged more than pleading a required you need to have evidence to support a finding by a preponderance of the evidence that there is article three standing the supreme court and little hand versus defenders of wildlife and lewis versus casey made clear that the elements of article three standing are not mere pleading with fireman's you can you know pleading stage have general allegations that support article three standing but as you move on through the case or through the proceeding in the case you've got to start presenting evidence and rule twenty three is a wang about whether the pleadings are sufficient for there to be article three standing in this case i think that the pleadings adequately allege article three standing in pleading that certain name plaintiffs have separate identit but they also have to show that identity theft is fairly traceable to the equifax breach they can allege and i think you've adequately alleged it but they haven't done evidence also they haven't shown evidence that there is a material risk to members of the class in a quantified there may well be a material risk but there's no evidence required if occasion of it also want to emphasize that the article three jurisdictional defects in this case do not  court from reaching certain collateral issues i think one of the most of court collateral issues in this case is the read of public access to judicial records to materials that the judge considers submitted by the parties in considered by the judge reaching conclusions the ex parte communications of what may well have been opinions that the judge adopted verbatim are things that need to be on the record and publicly accessible there's a st amendment right to public access to court records and materials considered by the judge there's a common law read a public access and it's particularly important in a class action like this that the public at that litigants and the one hundred and forty seven million people who are going to be bound by the judgment in this case have access to those documents is also i think a collateral issue with respect to the violation of canon three a four by judge thrash with respect to the ex parte communications and circuits where material is been sealed in the district court as soon as it goes up on appeal is an order to show cause why it shouldn't be unsealed public access to court records is extraordinarily important and in this case materials need to be made a part of the record and made available to the public including one hundred and forty seven million people down by the judgment if the settlement is approved and your position on that just just so i'm understanding this on your position on that is n that the district court error abused its discretion and asking for proposed order is that the district court should have put the proposed order on the docket somewhere so that people could look at what the parties have proposed at the district court sign that is correct it should communication issue well what remedy should we it lets let's assume i agree with you that that order should be on the docket why would that necessarily mean that the class settlement needed to know and it's necessary i sent to evaluate where the judge actually exercised and judgment on the record that we've currently got with the assumption that it's verbatim we have to assume that the judge did not exercise and if it goes on mr frank thank you your honor may please the court said frank arguing for the watkins and west opponents the settlement creates a single national class with uniformally if based soley on georgia law even though many class members from other states have unique causes of action with material differences in state law two or more sets of class members with material different claims with differences among value fighting over the allocation of a single supplement pot create a fundamental conflict requiring separate representation defendants even admit that courts must create subclasses when a subgroup has unique claims whose merits quote differed significantly but here the georgia national class has a fatal flaw that states of classes would have had because  supreme court decision affirming a two thousand and sixteen decision held that there is no legal duty to avoid a data breach disclosing social security numbers so as in literary works all class members here shared an interest in maximizing the collective recovery but their interest i verged as to the fundamental excuse me as to the distribution of that recovery because each category of claim is a different strength and therefore special state remedy but that latest from other states still retained a special remedy a statutory remedy and that they should have as ever so that's our position that you had the state remedies separate and apart from what was available under georgia law and that there should have been at least one subclass reflecting the state remedies and there's an additional cause of action  bill where do i go to find an object or who is objecting from a state where that object or would have had a claim that could have been brought over state law that would have been a  of st of all the we we were objectors from utah and d c and skewed top state law does not permit state procedure does not permit class actions but under shady grove and under this court's decision  all procedure that governs and state law cannot control whether a case as it is a class action so the district were committed legally or there and the pelleas repeat that we believe there but we raise that these are our statutory dam bright bright is our best case because that the ex exactly these facts and any other ruling would essentially knowledge johnson versus m p s johnson says the court just can't issue a conclusory ruling it has to give exercise independent judgment so that's not this case here there's been no independent review and aside from that colony square was decided before two sama which holds that this is grounds for reassignments and  decided before canon three hundred and eighty four was amended to make it explicitly clear that you can never do this there is no evidence in the record that one hundred and twenty two page opinion reflects the independent judgment this and other was going to get your view on this m m i was right in looking at the standing issue more as a predominance commonality issue than a true standing issue in the in the in the sense that it may be  that some of the members of the class have sort of different standing arguments than others and and that would if i if i were to think there was a problem there would be a predominance commonality problem not interesting problem that's not it was raised in trans union true doesn't that suggest that there should be have been an assessment of subclasses in the in the case if there were plaintiffs in the class with varying degrees of standing in different standing arguments that would be another grounds for subclassing we're relying on the state law issue nobody raised the standard as an argument for some plastic or were commonality or or puerto rico and of the trick of columbia on appeal the objectors raise issues that with one exception challenge discretionary decisions by the trial judge or make legal d arguments that have been repeatedly rejected in other cases none of those objections provide any basis for reverse the one exception is the service awarded to which is currently before this court for potential on bank review in johnson versus n p s solutions there is no need to await a final ruling in johnson before affirming the search service awards are several all under the settlement agreement this court can remove and with modest there are a lot less than courts of awarded in other cases in johnson this court didn't reverse the service awards because of a public policy reason that people are getting swayed it was because they were not permitted under some old supreme court decision so also contrary to the record in this case the court agreed the class agreed to the merits of the supplement before the service awards or even the goshi did and perhaps most importantly the district court found that the settlement benefits were fair reasonable and adequate and the fairness of the supplement supported by regular of the later years so there's no basis for this th tooth reverse this whole deal based on there is no question but that this court has jurisdiction article three only that and equifax didn't even contest it article three only requires that one name plaintiffs have standing to create jurisdiction  dozens of named plaintiffs allege that their personal data d has already been misused and they've suffered financial injury as a result of courts uniformly holding quoting this court  create jurisdiction the standing issue that mr wong raises is as judge brasher said really best analyzed as a predominance problem and there isn't a predominan problem here the plaintiffs allege eight people were injured in different ways but plaintiffs allege a common minimal injury the same for every class member that's an intimate imminent and substantial risk of identity theft every class member also has a claim for nominal damages under duress all without any proof of actual loss and the amount is not limited to a dollar it's up to the jury and georgia song people who allegedly weren't exposed are injured and some of the other exposure only plaintiffs are injured his argument is that everybody wasn't injured even if you look at that issue from a standing analysis rather than rule twenty three dollars the results the same all the room standing requirements are met plaintiffs alleging serial risk of harm proximately caused by the wong real complaint is that he says the risk of harm from a data breach is speculative that's not an open question in this book this court held in moran ski quote this opinion makes clear that anyone who properly plea of material risk of identity theft would have stand the question is whether in this case under its facts which mr huang ignores plaintiffs have alleged facts that are sufficient to create a the hacker specifically targeted that information they took it from equifax is data breach the complaint cites one expert and consumer finance who said d after right after the breach that quote on a scale of one to ten in terms of risk of consume to consumers this is a chance because of the extent of the risk the f t c took the unusual step of opening an investigation into the breach lots of other regulators did the same government officials and the media emphasized the magnitude of the risk equifax itself agreed and told consumers to protect themselves by placing fraud alerts on their credit files and for praising their credit and doing other things and court in saudi what do you what do you say about what do you say about mr hong's argument that there was no evidence presented that these are allegations and that there should be some obligation to present evidence that the rule twenty three names or class can serve on the only thing that is required is that the merits be looked at if necessary to show that the requirements of rule twenty three dollars have been met and they have been because you can do that all based on the allegations the fact that there is a final judgment in this case doesn't change the result at all or general final judgments all the time without  the asked us to prepare a proposed order and went after the proposed order was and are moved to put the proposed order on the record its motion was an even controversy we consented to it but before appeal and delayed distribution of some of the benefits to the class so that's why we objected they claim that the lay and disruption was not their intent but the plaintiffs offered last june to stipulate putting they refused to agree if they had agreed to the proposed order would have been placed on the record long ago and we don't have any problem with putting the proposed order of the court once it along on the record that the problem was it was going to be that the default rule is that unless the judge rules otherwise the prevailing party is supposed to prepare the order after the judges who were lead from the bench  and the practice is the stand that water by the words of the judge so that the judge can make whatever changes in mass or is it typical for that order not to draft or not to a district court judge and i got those proposed orders but the other side was i was copied on the proposed order i guess that's was kind of confusing here is that not only do we not know what the proposal was but it seems like the objectors are saying they didn't know what the proposal was and and so they have they didn't have the option for example of filing it with a motion to reconsider filing the proposed order and saying the judge messed up because he didn't reflect any independent judgment or something like that merits of the settlement they only complain about is fine to use regarding them and it was totally appropriate for the court to make those findings manual for complex litigation emphasizes the importance of it we submitted evidence of our allegations by sworn declaration only one of the objectors objected to any of that evidence at or before the hearing mr frank did not know when asked for an opportunity to brief the issues so the evidence regarding them with one exception was undisputed and it's also important point out this issue doesn't affect the class is personal the mr frank the only issue that mr frank has raise relating to the intro class conflict there's some question about what the judges position was on that and in his will when he said it was totally without merit under this court's jurisprudence even if the order was adopted verbatim and for that reason they don't objectors don't need the order to make the arguments that are make you may assume it was adopted verbatim but it doesn't matter because even if it was process was both unfair and the order is unsupported by the record and neither factors met here the process was fundamentally fair they had full opportunity to make all their busy arguments and the court ruled after a four hour oral hearing and no one objected their complaints or of of on fairness or untethered to the record and largely involved matters that were never raised that the time were run of the mill procedural ruling to lose the opportunity for you to address mr franks arguing about subclassing war and i just so i think the only objections before us on that are about utah d c because those are the only objectors we have raising that argument mr frank says that utah has no class our benefit statute is just you know it's ineffective doesn't matter all share the same claim for money damages and they all want to maximize the recovery because the recovery all d benefited by the settlement number on mr frank's claim that the statutory benefits are incredibly valuable more valuable than anything else in the case is not based on anything other than his own say so does thrash rejected his argument eternally generals from the really had the opportunity to review and recommend changes to the settlement after we negotiated it to the contrary d the attorney general's decided the incorporate the settlement terms in their own consent orders his argument has been rejected by the only two data breach cases that have considered it target and in from biased counsel who have collectively handled over fifty data breach cases and all the men the major ones disagree with mr franken and the class representatives from each state that has a statutory damage claim are don't believe that there's that they're entitled to anything more the only person that there aren't two people on the record that agree one is the brother of the lawyer who represented mr frank below and the others one of mr frank's friends who filed a namak us brief without disclosing that he represented a party in this case that had its own statutory damage claims and he later settled those claims for a pittance relative pims i also asked if the statutory damage claims are so different and so valuable as he asserts surely he ought to have some real world evidence that his theory is correct but he doesn't yes who cited a single data breach case in which anyone has ever recovered a dime in statutory damages under any of the statute and he has cited a single case involving the beta reach for any other set of facts that is found the conflict requiring some classes because some but not all class members of sir claims for statutory damages and the fallacy of his cause of his claim is evident by comparing plaintiffs common law and statutory clients is bruce point to two ways in which he says that those claims  nominal damages up to the jury as much as twenty thousand dollars so those claims have no additional dollar value and contrary to mr frank's claim our common law claims aren't fa flawed because georgia doesn't recognize that equifax had a common all duty that's not what mcconnell said but even setting aside the negligence claim ignores that we filed a negligence per se claim which involved a statutory duty under section five of the f t c act and that's the same statutory duty that is that most of these state statutes are founded on so they are not any canon also has a specific exception or ex party communications that are authorized by law and here there was a local will that authorized this statute in any event judge involved in every step of this litigation hearings constantly massive amount of briefing read all kinds of things he got hundreds of pages of briefing before the final approval  you read all of that you had a four hour hearing and at the end of the hearing you nd and set the entire judgment out orally in court on the record and none of these required only when there is a real know when they ask you have d well i mean that's the other point right i mean we we are we do follow the instructions of our federal district and we're struck to do this and and there's nothing improper in the rules for doing that i understand the point that they would like to see are not able to argue that the district court would have reached a different result nor of explain why remanding on this basis makes any sense at all and just want to say very briefly if the court decides to remain for any reason this case should not be reassigned the i mean the objectors want you to sama that case is materially different than this case that was a case where the court completely delegated all of discovery rulings to the plaintiff's lawyers with predictable results that is not what happened in this case so all these reasons we to look through a jaundiced eye at the at what's really going on in the merits of these of these objections had been raised thank you while at the same injury and same interest as former students work and campers at windsor have this described the class of that arens improper class out of the asians and i'm reading awful well here are from yet again which says keepers have a chocolate here case that was rejected by the district judge and that case was that meaningful objections were filed and that he was going to consider them on their merits there's no evidence that was there corrective steps because of our objection to mary sure a suggestion in that case with respect to incentive awards as well as shown by johnson versus n pass and you know when it went up to the bank panel i went out and i got as win win in the process of the class action plan to do that would that be in in like at the time of a motion for certification of the class is that what you're suggesting that the that point the pla examined but definitely there must be evidence in order to certify a class it's critical to adequacy of representation the name plaintiffs have article three standing and supreme court's opinions with your age group twenty three sa made mistakes about how to apply twenty three for the dot value drug wrong misrepresenting misstating it's holding right obviated any concerns about twenty three a for conflicts that's fair as a matter of law we document many many many other legal errors that the district court committed  regrettably my and my friends here get the lot wrong on the facts wrong in many areas the a g s have never said anything about my argument in contrast we have the world's leading privacy achieve statutory damages against us so these do have value because especially because the georgia the fatal flaws in the georgia cases that bind the whole class here that the that the district court was relying upon in error and that plaintiffs rely upon in error throughout their brief i derive the georgia negligence claim not because it's nominal damages but because the georgia supreme court mcconnell says there's no cause of action and where the underlying theories of recovery are difference because of different affirmative defenses as in or t s or differing rights to statue tory damages as a literary works or different types of relief as in this court's decision three materially different strengths in state law or federal claims as in sprints as in central states as in dewey and as in this court's decision lyons you cannot certify the class without separate representation because of the conflicting interests in allocation of a single supplement the cases that the appellee cites of the contrary are cases where there was separate representation they where there were the structural protections that we say should have happened here and were not here they misrepresent the law the circuit because no court has authorized ghostwriting an opinion without opposing power parties having an opportunity to respond to the proposed order and in johnson versus n p s this court said just because everybody's doing it more is needed in class process we know that that was also that without putting any blame on the district court and if the district court is just doing something it always does even though it's against the rules it's still a problem and we shouldn't be bound by th fact that everybody's been doing it wrong when when it's due process simply demands that we have a right to respond when you submit something to the judge and we know it's materially different because basis i think that's correct and that's what we argued for and that does require reversal underpriced versus westmoreland's and i think it also requires reversal on your johnson versus m p s because otherwise it makes the not see of johnson's a rule it can't be the rule in in a class action affecting millions of of absent class members but i think right makes the critical distinction between findings of fact that  opposing parties have an opportunity to respond to and an opinion which reflects the judge's reasoning were supposed to reflect the judge's reasoning we would have been happy to have some sort of stipulation for plaintiffs to just put it in but a pro se of helen's who isn't here was the one who blew that up i should be punished by that but i guess my point is it seems like it's in her not because we're just going to assume that it was  adoption of the proposed order for all we know but we're going to just assume that it is because you were provided a copy of the agree you should assume that and that that's reversible error on your brights and and johnson but there's still the due process violation that we were given the opportunity to respond to new arguments new facts new legal findings that were never raised until the reply in the fairness hearing and then at the transcript to page one hundred and thirteen mr for a look at cell phones as i want to reply response