improper to deny class certification based on speculation concerning an affirmative defense that the defendant in this case although the plaintiff did not have the burden to prove that there were that the that there was a lack of  consent the plaintiff came forward st of all with affirmative evidence that the that the defendant had not obtained prior express consent to the facts advertisements to the to the plaintiff or to anyone else in the class and or invitation of the foxes at issue to the th to the plaintiff or any other members of the class and in fact he was not they were not even aware that they had to obtain such permission besides affirmative court made clear in two thousand and ten that when there's a conflict between rule twenty three and any state law rule twenty three controls if the state law is not about a substantive state right here at the supreme court has made clear in shady grove that that a person can serve as a plaintiff for a class if it if it satisfies the requirements of rule twenty three dollars the fact that the individual local or state  under under after getting a notice notice to the various governmental entities would be of the class actually giving them an opportunity to opt out is a sufficient way to protect to protect that right so  be we would be sunny notice out of the class members and they would have an opportunity to opt out and so any governmental entity that felt that it did not want to be part of this case could easily opt out and in that circumstance again we believe shady gro brief you did not cast doubt assertion on their part so i and then of course they've got these various factual defenses  but if you didn't contest the district court's basic characterization of this as being out of disfavor way pleading class actions why would we get into these other issues well your honor in terms of in terms of class a being a failsafe class we specifically requested in our papers and we cited in our  district court should have reframed it but that's a different argument about whether in essence you've conceded it was a failsafe class i don't think we can i don't think we've conceded that iran or but but but we're assuming even if that before we get to the substance i just want to understand in what certain sense is you think we have to reach that question so let me just work it through this way that we can't avoid deciding that issue if we have to get to the question of whether the assay sees interpretation of the no solicited facts rule not and yet if you know what circumstance would we have to reach that question if we rule for you if you think you are right on all that rule twenty three is usually just as we can't avoid addressing the merits of the f c c rule correct i jurisdiction to address the merits of the bill if we rule for you in all the rule twenty three issues correct that's correct your honor ok now are there are suppose we rule for you on some of the rule twenty three issues but not other will twenty three issues does does a ruling against you on any of the rule twenty three issues potentially render irrelevant the fight over the merits  the f c c rule i think the answer's no your honor if you were to rule against us on the issue of class regarding unsolicited faxes then the issue is class b which contains solicited and unsolicited faxes where we were if the rule if the regulation is that then the issue of individual issues should you say there were any in class a are no longer relevant because for class b the violation is it's not having the proper opt out notice and that if the but if the question there was also the issue about the advertisement yes your honor i mean if we rule against you on the advertisement issue we don't have to get into the merits of the f c c ruling jurisdictional questions about whether we can reach the merits of the d c circuit if you do your honor because a district court only ruled that there was an issue of fact on the advertisement issue or argument it's a matter of time we have of the district the district court only ruled that there were issues of fact regarding the advertisement so at most it would be upholding the district court's determination that there were issues of fact and therefore you still have to reach the that someone was sent an unsolicited fax well we've we have in the record your honor our position is they never got our positions they never got any they didn't they never got permission but it's a profession york your class a complaint and you think there is probably no one in the class then who is subject to an affirmative defense but if there were those people can be called out well i think the answer is that they have the answer is that your something that's an advertisement they have to come forward the form of evidence they haven't at all as we pointed out the briefs there's a the one thing i'm a little puzzled by that is and i understand the point about with respect to the affirmative defen point but the thing that just puzzles me is certain of the class members don't need the benefit of the f c c rule but others of those numbers do need the benefit of the f c c will and that's an unavoidable fact in that sense the consent part in a way is an element and not just an affirmative defense well that is the reason in the sense that if without the two and six rule there's a big chunk of that class any class simply couldn't get relief at all well you want to that's why we decided the way we did we had class a for that very reason class a is and i'm for unsolicited  c rule is there a potential predominance problem in the sense that in order to establish their basis for proving liability they have to be pointing to the rule and the only way they can point to that rule is by outing themselves along with the mention of being solicitor unsolicited so we're sort of back to the same problem now you know i don't believe that was an issue that was raised there have been  by the court or by the defendant there have been clauses when the actual is in the solicitor factual was still considered a fact there were classes that were certified and because the idea was it didn't matter given that the rule existed it didn't matter whether the facts have been but once just once this found if the nd circuit says that the rule is valid that it and they don't get denied it cert that's the end of it they can't raise it again they didn't participate in the nd circuit proceeding even though they were told about it and they're bound by that proceeding and any further appeals from not so there would be no more cert if the nd circuit says the rules invalid than the rules invalid we could probably take it up for certain the supreme court would probably be denied but that issue will be resolved how does your class a w just describe to me how that would work is all persons who were sent faxes by the were sent thoughts advertisements by the by the defendant and the issue of that that's what class a would it's not and i want to be even if it were we've provided affirmative evidence from the thirty six witnesses their own corporate witness said that they did not obtain an invitation to support not simply relying on their lack of bringing forth evidence we have affirmative a wer they said we didn't know we had to get consent and we and we didn't and we were not aware of anyone getting consent they actually that's affirmative evidence on the side they have not shown anything to contradict  that unless my brother and i have any further questions you've got four minutes or a bottle i would like just a just a minute or two on the nd circuit this jurisdiction order involves my client and a c t the only way to appeal the decision by the f c c is to go to a hobbs act appeal that's only when this court held that in the brotherhood case like one hundred and eighty six we can't appeal directly to this court about that issue case already proceeding that's where we have to go i think i mean i thought he was saying explicit jurisdiction provision only related to pre enforcement if that's right then once you're not in a pre enforcement review case and none of these  waiting on seconds or but there's one difference here your honor and that is it the proceeding before the nd circuit is one that will race judicata effect on these issues between these two parties when justice kavanagh was talking about this he was talking about decision by by one court not involving the parties in front of the nd court in this case we have the exact the exact twenty two parties are controlled by the very order that's on appeal to the nd circuit so that's why our position is that even though justice kavanagh is right about pre enforcement review in this particular case because both parties are before the nd circuit you have to wait for the facts or just one that's just a discretionary decision we could make as to whether to wait for something that would have raised jurisdiction conduct of the parties at the time we're talking about the nd circuit case you say is a much more recent rule that actually  applied to conduct after the defendant stopped issuing faxes so why does this nd circuit case why is that relevant to the issues  in this particular circumstance if your honor ruled that the district court had jurisdiction to make your substantive ruling on that question then the case should be remanded to the district court to make that substantively if this court ruled that well because the waiver is at issue supplemental briefing if you have break the issue on appeal i don't think this is a lack of notice issue suppose we do agree with the justice cabinet and we thought that the exclusive jurisdiction provision was not limited to print fortunate review challenges wouldn't it be the case that it doesn't matter whether the d c circuit we would be forced to rely on the d c circuit and we really wouldn't be in a position to assess whether it was right or wrong i know we could supposed to do if we've got two decisions within the sixty day period that are conflicting and we're outside the sixty day period what are we supposed to do that well what would you put well in this particular case it will be  that so you don't have to worry about that iraq all right i think we can move on and you still have your rebuttal of time thank you  happily a c t a a c t position here is fairly straightforward after eight years of litigation judge tillman correctly decided that the litigation should and he didn't discretion in denying class part of the certification based on a lack of predominance he correctly denied bias yakov motion for summary judgment on its remaining individual t c p a claims discussion and your discussion of the significance of the d c circuit we believe that other courts of appeals which upheld they were bound by that decision got it right and that i correctly interpreted the hobbs act to reach that conclusion i also think however your honor that you get to the same place as as was suggested if this court simply agrees with the analysis in the d c circuit and completes independently as suddenly the rd circuit in the suffer long case that the d c circuit was practice analysis and you get the same place ultimately on the significance of the consent issue by virtue of the fact that a city obtained a book a waiver from the federal communications commission as to any liability for these suspects as are facts the senate prior to two thousand and fifteen and then of and also dismissed as moot by a few act of appeal from the waiver that a c t received from the bureau said oh it is my understanding is that it was within sixty days of that order but that order also indicated that made clear that the appeal and they got off versus the f c c case was binding across the country and ultimately it was a question of the rule being invalid not an f c c order i guess i don't understand your answer is what i really would want to know was the other your opponent just opinion what's your view on that contention yes i don't believe that the nd circuit will be able to to rule the solicited facts rule is valid or don't believe that it can make that determination regardless of in the context of reviewing the march twenty tw was adverse to your own finding here and therefore favorable to you and and any need for us to figure out whether the d c circuit had it right that's on the one an alternative lee the nd circuit comes out the other way is there way it could come out that would be favorable to your opponent but also in a way that would make the question whether finding regarding the waiver rulings was appropriate presumably that issue would need to get remanded to the agency in order for the agency to decide that the full commission to decide whether or not in fact the waivers world were warranted the nd issue in that case of course is the merits of the solicited factual and i don't if that is big i don't think there will be raised judicata consequences here i mean in truth the question is why is bias yakov in a permission in a position to  lose and is that worth waiting for whether the issue of the underlying validity of the rule is reached i can see that the nd circuit might say we don't actually need to reach the underlying violet it is because the issue before us is not that it is the withdrawal of the rule the affirm and the agency withdraw of the rule so i can see that there's a very good reason not to wait assuming there will be some conflict valid and renders moot their claims are you totally protected we would be totally protected in that case by virtue of the wa attack or a concludes independently that agrees with the d c circuit the rule is invalid it may never reach it would not in that event need to reach the waiver question movement in question but on both of those  disagree with that and of course there's the separate issue about whether it's it the truth is if if biased yakov doesn't have any claims against a city you don't even need to get into the class or if you are at that i admire can't predict but you know i said i roughly sketched out march to july perhaps for a decision potential for supremacy supreme court review after that six plus months the nd circuit their decisions will be binding on is it symmetrically true that what we do will bind them no reason to join that although you know again the point i was making earlier i do think that as a matter of non mutual platell a stock will buy a stock tof should not be litigating the issue anywhere else  but as to whether or not a decision by this court would preclude a contrary ruling by the nd circuit i frankly i haven't given that question enough thought to provide an informed answer i have a question as to individual relief putting aside the class issues they say look we rejected the tender of  the amount of damages under the statute and under normal for circuit rules that means the case isn't moot so what's your justices would have held the actual payment of the full amount was sufficient to to leave to move us on the issue of the monetary claim on and then we also pointed to district court decisions in massachusetts where courts have held that you can't simply refuse to take an actual payment and also noted in the prior appeal in this case we might well have a different issue on the subject of monetary relief had a c t tendered up a bank check as opposed to simply making an offer of judgment that was in the prior decision in this capacity to hire attorneys for these public entities which we heard response to but they particular one that seems to caught the attention of the district court was that there would need to be factual determination as to whether or not someone actually gave express prior consent and our law in the law that the circuits makes clear that if you  we are to pay attention to something like that but the mere theoretical possibility of it isn't enough in re asacol what we were confronted was was a concession that there was some under ten percent of the class and you couldn't tell who so far i haven't seen in this record engine example any proof that there isn't fact anyone in this class who gave express prior consent if we construe that as something that is truly express and consent that came before the advertisement was sent and mind this reading the record i think i see the statement saying we would have done this or circuit analysis is correct and if someone gives you a fax number and all choruses you to communicate with regarding the subject matter for which they gave you the fact number that is both express and it is prior and that so long as the communication and subsequent communication relates to that subject matter you've met the requirements of the t that has to be permission to send an advertisement not just in a tape with well the only their basis for the argument on the advertisement was pointing to up to two thousand and three i believe f c c discussion of that issue thought if you look at that the f c c in that particular order was actually discussing a rule which it was adopting at the time which has subsequently been removed and other courts have not found that language has lead to the conclusion that you have to use the magic word advertisement or that you can't get it by for information is there any evidence that there is any substantial number of class members who couldn't be manageable he identified who would fall into that category well we course we point initially the bias yakov as record evidence of someone who gave prior express permission to be sent a fax and in our view if they're right that these are advertisements that it gave us consent to send a fax advertisement ultimately your honor there's going to be a problem identifying ringback who would be an appropriate plas member because all we have is a series of random facts logs as to which there's no and your client was the client that sent the facts have you offered any evidence that a single one of those putative class members in fact gave the type of express prior consent that the more rigorous type that we're assuming might be applicable i don't know of any evidence in the record which which indicates that a high school said to a c t you have my permission to send me  advertisement i don't think that i mean ultimately it's circular biased yakov as anything that discusses the a c t a exam is is an advertisement but everything we send out discusses related publications he has so so that would be an issue then with regard to exhibit a to the complaint which is incorporated in the class definition and of examining a is not an advertisement that isn't a predominance problem that's what you win as to the whole class issue correct if the court were to conclude either of those faxes is not an advertisement faxes is internet and the other one is how does any given school prove which facts it received and so we're going to have an additional trials on those issues and they also define the fact the class in terms of all they're just a list of schools with fax numbers and then if you look at the fax numbers or the actual fact logs they don't tell you which what facts were sent which given entry relates to a fax or even if it was a fax st opponent ever they don't tell you which fax went through and only if a fax went through could there actually be injury do we have any effect findings on this bloke and i don't recall this being litigated be i get the situation there the court did not read the ascertain ability or identification issues but it would certainly be an independent grounds for the court to have discussion you've now flipped positions in order using the opposite position with respect whether it's an advertisement when you argue about the dominance then you are about whether it's an advertising when you're not talking about saddam it's my right on square the i was saying that if buy a coffee is correct and we disagree that it is that either these documents were facts were advertisements then it's the head of the school testified in a row in another case that biased yakov is pursuing against the educational testing service that yes he agreed that when they gave their fax number to e t s e c to a ts had permission  send them faxes relating to the s a t exam i thought you were getting all faxes the inference that you want us to infer consent is sufficient become stronger because everything they're talking about would be advertisements well everything as they characterize it would probably have a positive but as we believe these are the advertisements we think these were informational communications sent to institutions through a long long standing relationship except that you and i guess that's just you still have the question that you raised earlier about what if a strict interpretation of prior express permission applause yeah but you don't point yeah that's reintroduce himself on the record good morning your honor sir first i want to address the issue of an advertisement the district court found that there was an issue of fact as to whether they were advertisements our position was that they clearly were s he's citing to another case involving another defendant to say that we gave consent here that case also that was not consent and even the district judge in that case cited in our brief in a published opinion said that it was  receiving ads and not complaining about it and looking forward is not expressed by ear that's correct your honor i don't think it's a very difficult conclusion become to the word express means express if it meant implied consent us to reject the rd circuit approach that's correct your honor the rd circuit was clearly wrong because it's inconsistent with the structure of the statute they said that just giving a fax number is enough to be to infer consent to fax advertisements but giving the fax number is only one of three required elements of a defense to get to the defense to getting an unsolicited fact that alone were enough then that makes the other two elements irrelevant and to judge porter pointed out all the flaws in the majority's majority decision and suffer one the other thing your honor is this question of whether it's awkward to somehow barred by some sort of non the usual collateral estoppel is completely wrong st of all there much your honour's and thank you both that concludes argument in this case attorney ballin an attorney for going you should disconnect from the hearing at this time