sohn and denham versus jackson national life insurance company mr peterson please the court its appeal presents an important procedural question regarding preservation of objections for jurisdiction with respect to the claims of unnamed class members but it isn't necessary for this court to reach that could be certified that would include claims of class members whose claims have no connection to tax so there's one key reason that individual issues predominate here over common issues and that's the involvement of brokers charges customers were represented by the highly sophisticated individuals familiar with the insurance industry familiar with judson's contracts and perhaps most importantly familiar with the understanding that the industry of jackson's contracts surrender charges he believed that jackson's calculation of surrender charges was perfectly consistent with what jackson was doing with jackson's contract language of the contract say they're fully integrated and how could we have record allow the testimony about brokers advice there is a contract but we're not offering the brokers advice to vary the contract language we're not offering their brokers advice as subjective evidence of what the parties believe the texas supreme court has made clear points to is traders trade usage can eliminate the meaning of contract language so what we're not suggesting here is that there is some special subjective understanding that mr hightower what we are suggesting is that the insurance industry as a whole understood that with drawls included the amounts used to pay surrender charges and that mr high tower shared that understanding what if there was a quote by supreme court opinion from say the supreme court of montana that said if extensive evidence is also if you know but in a different way would that go to also the predominance question certainly that go to variations in state law i don't see anything in the district court certification order that says anything about well i've looked at the fifty states burden in showing the class a suitable surface for certification under twenty three b three when the attempt to go outside the law the single state is to show that these variations in state law don't overwhelm predominance and on the key issues of liability  affirmative defense of waiver which i'll get to hopefully soon and on the questions of contract interpretation using this individualized expanse of evidence you just don't see any sort of argument by the plaintiffs ruling class circulation much less any serious analysis by the district court now with respect to trade usage and just one last point there we can obviously prove on a class wide basis what the industry understanding of the terms is but that's not enough for traders and we also actually have to prove that each individual pla able to show for the vast majority perhaps even all of those plaintiffs that they should be held to the straight usage however we still need to present individualized proof wouldn't top line argument on the merits be that the contract is an ambiguous and unambiguous lee support your view of how to calculate the charges will make you money even if it's unambiguous we still do get to use extrinsic objective evidence to interpret texas law you know it's a fairly subtle point that is important but i let me put it this way i think on our top line argument is the pla text of the agreement alone just looking at the face of the agreement supports us we think we have the better reading of the word with raul but if there's any doubt about that if we don't win just looking at the plain text of the agreement then we have this well supported evidence of industry usage showing that the people who are actually representing and advising the individual plaintiffs shared a common industry understanding of the contract language with and to be clear there's no accident in that there's a reason you don't buy these policies from jackson the same way that you buy goods off amazon jackson is trying to protect itself from exactly the sort of claims being raised here jackson doesn't want to deal with unsophisticated individuals who don't have the benefit of being biased by brokers who might pick up the contract take a look at it and say i think it's plaintiffs and said here this is hard we don't understand it please read the construction we were going to go through broker to purchase these policies and when the broker purchases the policies look at the record page twenty three ninety one the broker actually has to provide the certification that they have to explain the policy to the customer and explain the calculation of charges as part of that certification we don't want to deal with unsophisticated individuals we want to deal with individuals who are held in the industries understanding of the sometimes complex complex policy let me turn also to waiver and again it's very similar arguments like our contract interpretation arguments are formed a defense of waiver also turns on what knowledge these individual class members had when they had that knowledge and how they reacted to the district court rejected our waiver because it applied the wrong standard  texas law arguments but the position i would assume jackson is that all fifty states law is going to affect at every step of this analysis whether it's your waiver difference how do you told the statue of limitations that would apply to a consumer in rhode island or man montana how that this is a correct statement of law but that this is a correct statement of law with respect to all fifty states and there's no serious analysis of what the standard for waiver is there but i would also suggest they haven't even shown that for a single state's leuven for texas class that waiver suspect my friend is going to stand up and make yes you might have sent us documents from which we could have calculated we were being underpaid but we didn't actually perform those good completions and we didn't subjective recognize that the underpayment constitute a breach of contract trial tax decision expressly rejects that as the standard for waiver waiver requires a knowledge of the material facts it doesn't require subjective appreciation that those material facts constitute a breach of contract and the case that the district court pulled its waiver standard from the island versus holiday universal case didn't involve allegations that a party waived its rights under contract in that case parties were challenging a gym contract as void for illegality under pennsylvania law charging excessive membership fees so it's not about winning contractual rights which is the situation that we're in here it's about a very different argument and that's where this lawfulness idea comes in when you're talking about a waiver of contractual rights there's no need even subject we can appreciate the facts constitute the breach much less to know anything about lawfulness and of course at this stage again under engine we're not engaging in a free ranging inquiry into the merits the question is not whether jackson is ultimately going to succeed on its way of arguments ultimately succeed on its contract interpret the question simply how the case is going to end as we understand that his record tro plan jackson's argument simply won't be heard at all that jackson would not be permitted to introduce individualized evidence relating to each one of what each one of these individual plaintiffs knew we wouldn't be able to make waiver arguments based on the subject of knowledge of trade but it's still recognised that these individual issues predominated even the most common of contractual questions those rising for example from the lead to breach of form contract do not guarantee predominance if individualized extrinsic evidence bears heavily on the interpretation of class members agreements second they also recognized again very similar except in payments for an extended period of time without complaint created individual issues of waiver that predominated over common issues and finally even in that case only i'd like to hear your argument about the damages model and i'm going to give you an extra ten minutes to talk about personal jurisdiction of course the other side will have an additional ten minutes as well t thank you briefly on damages i think what we see from the plaintiff's expert isn't actually a damage model presented showing that damages can be calculated on a class by basis it's simply an indication of how damages could potentially be calculated in the future and there's a few complications there the first i think what my friend is suggesting these is that the damage model is very simple it's just the difference between a single overcharge and what they contend that jackson should have charges so simple even i understood  damages on a ministerial basis or just when you plug in the right numbers for each class member if there were only a single for charge at issue but what their damage model doesn't account for is subsequent over charges and this is hard  because withdrawals reduce remaining premium the amount of remaining premium that you have ends up affecting a lot of things going on in future in the contract so when we knew reduce the remaining premium by a withdraw that means that subsequent with rolls would incur less surrender charges because you have lesser and lesser meaning premium there are a lot of follow on complications that come if you adopt their contract interpretation you haven't seen damage model an appeal to argue that living and death benefits are calculable on a class one basis even if their calculable my understanding is that there is no i'm looking at a record of on appeal twenty one thirty nine and it's it appears that regardless of whether you could actually figure out what they are there is no model proffered in the record that i can see that actually supports to do the modeling that's right you don't see any model presented by the plaintiff's expert and i believe we compared it to the weekly case  believe was the one that we cited in our opening brief for a plaintiff presented expert testimony regarding damages essentially saying i in the future will be able to perform a regression analysis that would show the damages are calcula class wide basis and you've got very similar testimony here in the future we'll be able to develop some type of damage model that calculates damages on a class wide basis without telling us right now exactly what that damage will looks like or permitting that image will be subject to scrutin his own personal jurisdiction thank you so with the personal jurisdiction issue we objected to class certification on the basis that district court like to personally jurisdiction to certify a nationwide on that is it not show these claims were not part of the class i'm sorry these claims are not part of the case until certification and you see that from the ninth circuit class action when filed includes only the claims of the name pla s the claims of the name plaintiffs are added later when the class is certified you see it from the second circuit until certification there is no class action but merely the prospect of one of the only action is the suit by the name plaintiff this court has said that it's a certification that brings the unnamed members of the class before the court and obviously can spend time talking about the eleven circuits decision checking overdraft account with a gauge and good ears versus wells fargo i think that's exceptionally difficult to distinguish because i think the eleventh circuit provides exactly the ri right correct me if i'm wrong there are no circuit cases that address the waiver of personal jurisdiction in the class action context there are only district court cases that's right do the district court cases just on the law as they do on the merits issue the bristol myers issue do they also diverging on the way we're issue no the roads do we have them on both sides yes i ask because we have a twenty a j filed i think from a district court and remember where but that it supports their wavering that's right let me give you one county out there which is i think the district court cases that have actually considered the procedural correctness of the motion or you know so every time you have a district court actually stopping to think and asking is this a procedurally proper motion is this the right time filing of the motion the court doesn't understand how it can lack personal jurisdiction of persons who are not yet and may never be parties to this action that is the putative class members so whenever you have this record actually engaging with the question of is this a procedurally proper motion is report recognizes the jacksons correctly are you having them are cases in which mr courts have without weighing in on procedural correctness of it permitted these motions to be filed and ruled on them but none of those cases are actually really grappling problem with the presidents minnesota case i believe which was cited in the twenty a j letter you don't see any sort of analysis of how is it even possible to move to dismiss the claims of unnamed class members parser cation you don't see any questioning of what is the status of these waiver let's let's assume for the purposes of argument that we found that he didn't wave injection of personal jurisdiction in your view should we go ahead and reach the question i know i know you've made the argument skipping over that going class just keep it a person years to in your view is that question posed for us by the court certification order or should we remain and i believe it is opposed by the certification i think it's coming to use a purely legal question and also say i don't see my friend as disputing the nonexistence of personal jurisdiction aside from forfeit they have never actually made the assertion that aside from forfeiture the district court can properly exercise person over with jackson response to these claims you district court you don't see any basis other than forfeiture that they've argued in order for the district court to exercise personal jurisdiction of them so we're happy for the court to address the issue we do believe are correct on that and i'm glad to develop the argument o and that's fairly straightforward so under bristol myers when explaining a proposition supreme court has recognized that the territorial limitations on state courts are what give rise to the limits on personal just it's not a question of procedural fairness it's not a question of income means the defendant it's not a question of what the defendant expects from iris with roots restrictions on personal jurisdiction in the territorial powers of the state courts in our federal system ok so what about the difference between a mass toward action class action that salient something tells me the other side it's going to bring that it up is a relevant distinction i suspect they might but i don't think you can find it salient under the reasoning of us from liars because if the power to do kate is limited in our federal system limited in our federal structure in the territory limits on state sovereignty then no procedural device matter how fair you twenty three might be could permit a state court to reach outside its borders and adjudicate claims that have no connection and that's derived largely from what in this in that way just posited that limitation comes from the fourteenth amendment that's right so presumably we could have a different rule under the fifth amendment for the federal court i think there's no question there would be a different rule under the fifth amendment in federal stiction tell us that federal courts can exercise personal jurisdiction over a defendant where the defendant would be subject to personal jurisdiction in a state court so but there is no other rule or statute by congress they would where do it that's where the hard question comes in if you ask me to assume world in which rules for k one a federal district courts can exercise personal jurisdiction nationwide even in diversity cases i think it's a hard question of whether the constitution  that there is some authority it's not well established but some authority suggests that in diversity cases federal courts aren't exercising their innate power but are instead almost under yuri principles borrowing authority to adjudicate from state courts so there is some analysis out there that suggests that the fourteenth amendment might apply of its own force to state to federal courts exercising diversity jurisdiction thankfully though you don't need to reach that question because we do have four k one any which applies t if the board has no preference i will i was expecting to start parsing yours diction but they went the other way so i'll start the other way to just to follow they would do whatever seems best to you with respect to the class  individual issues our position is this is a quintessential classic case there are many cases that say that form contracts are in fact the perfect vehicle for a class case but what they are arguing is a number of very collateral issues that they are speculating are going to create individual issues but i want to go through each of those and explain why we say they don't it is not proper for jackson to come to this court and then say oh wait a minute maybe it's a big it was after all and we ought to get a bunch of experience in evidence that would be invited there in this court should not tolerate and let me just go ahead and deal with it in our position is that the state laws that matter are what's legally relevant and here the evidence they're trying to tender is not legally relevant because of the parole evidence rule which applies in every single state now we did not specifically put a chart in our brain relating to the pro lev you're not required yes under colbert's do the motors you're supposed to talk about differences in state law but what you aren't required to do and what would be unfair is to is that you have to imagine every conceivable thing that someone might dream up and then put that in there in fact what jackson did there's a jackson has evolved their position in this case constantly we'll get to that impersonal jurisdiction let's take reformation their biggest point about individual issues is this d reformation they they did not even raise that issue didn't even plead until after class sort of case but the they have argued throughout as i understand it that the limitation i'm sorry their defenses including statute patients and waiver and all these other things are going to not be every little thing as he put it just a moment ago it's going to infect every stage of this analysis including as i understand it the certification o because the cot the certification order from the district judge says the classes complies to anyone who is bringing a claim within the relevant limitations period certain so what if the limitations period in texas for breach of contract is due you know for years with limitations period starts or stops based on conversations with your broker extrinsic evidence that would apply to you know discovery of the underlying violation how they would understand when that would drop a charge was a minister you can imagine any number of scenarios where this is in every little thing it literally goes to the definition in the composition of the class where the state law questions in a nationwide class action are going to affect the analysis whether who's in the classrooms and a class how you try those claims under the class  i do here your honor in but i think what your honor is really saying is we never can have a nationwide class of state law which is which i understand that position that's simply not been the law anywhere that i know it is certainly what is under consideration now with respect to bristol myers but the fact is that you cannot have a nationwide class on the most simple narrow contract because here's a contract buy or don't buy our product if you do buy it and we have a dispute over the contract there will be binding arbitration or there will be michigan law apply or whatever you can imagine where a suit in michigan court right where they're at home and they would be subject to general jurisdiction you could also imagine the choice of law problems going away because the contract would have a choice of all provision in it and so that it's not to say that none of these things could ever apply it would simply be to say that in a scenario where you don't where you have choice of law provisions that require all fifty states laws to apply and they're being sued in a foreign state or at the start a federal court in a foreign state then we have all of these questions that don't seem to be addressed in the district courts search cation order but if i could  only difference in what jurisdiction you're reading all these issues will if we were to have brought the case and the exact same issue that your are raises would equally apply and the court would have to deal with the only difference is this case a perfect example jackson specifically set forth that the law of the state where the person signs so that means all fifty states you will have to deal with that in the state of michigan so you're not getting any different if you say well this is not a good class because you have those issues that doesn't seem logical if the exact same class in michigan you would say ok that's fine in michigan so that's why i say this is not a problem other than this personal jurisdiction issue which i'm going to get to that let me talk about i want to miss a couple of things i said reformation they didn't complete ok so that's certainly a problem with respect to that other issues they talk about industry the sort of industry knowledge and so forth jackson preferred proffered nothing with respect by way of some kind of expert testimony about industry standard in fact the only testimony is by these fact witnesses they they reference somebody as an expert without telling the court that in fact when we tried to designate his next project an object and we withdrew them is that so to refer to them as an expert is a bit misleading in our view but it but ultimately it doesn't matter there's no nothing in the record to suggest that the industry uses a standard form contract there could be a thousand different contract this case is about jackson's contract i'm never in my wildest dreams ever imagine that i'd be arguing in a case against insurance company and i would be saying let's follow the contract language and the insurance company would be say you know don't we want to bring in evidence about what people said and what the broker seven how i'm flabbergasted by that this it's remarkable what a position to take for the insurance cup to be saying we don't want to live with very clear contract language which they presented to the district court and lost on summary judgment with respect to instead they want to go out and tender all this evidence it's not legally realm of the contract has a provision that specifically says you can't have waiver or modification unless it's signed by two senior executives of jackson and it specifically says that financial representative surrender charge and your contract says you can why would you not want to resolve the issue in one efficient proceeding there is no difference jackson stipulate this is so unusual we got a stipulation to every thing that's relevant in my judgment for a nationwide class they treat everybody the same everything everything is the same is presented the same saying something  big i didn't see a stipulation represented the same is there one that says that it unless i misunderstood what you just said and it's presented the same to the consumer in other words well i should we should probably look at the exact language of the stipulation but it in any it is certainly this the stipulation does say that jackson's contracts are administered the sign everything is the purpose of marking marketing materials are the same if there is no difference and in fact this is not a contract but let's just distinguish this from a from a classic reformation case not a contract for two parties get together and they talk about it and then they suddenly say ok we got a deal then somebody goes negotiated at all so there is nothing about this that winds itself to individual i've issues that's our position on the first things mr peterson said was that the presence of brokers in his view is crucial in this case would you respond about yes i respond to that with a contract provision that says that whatever the financial representative side can't modify this contract and this is a f contract and it has a and unambiguous provision that we say says you can't charge surrender charge on surrender charge and that all our cases about so that's the reason why we think it perfectly fits the model in what if a texas court would look at that provision and read it differently i'm sorry i didn't quote i'm sorry what if a texas court would look at that provision and read it differently and imbibe differently i just mean that they would think that extr it's fully integrated no parole what if the pro evans rule in texas would allow the presentation of extrinsic evidence with respect to for example what a broker senator how customer understood the contract if that was the state law in texas i don't believe there's any any state that has a pro evidence rule that says you can vary or contradict the contractor which is what we say jackson is trying to do it's this is not that's the whole problem of their position they're saying it met the surrounding circumstances of course i knowledge that there is this whole surrounding circumstances but the law is crystal clear even in the case they cite you can't use it to create ambiguity you cannot use it to vary or contradict address damages again this comes back to this is a very unusual case the damages are surrender charge and surrender charge this is not like we're talking about a deal i've been a trust cases and damage analysis or monumental and difficult and complex the reason that our expert has not done the actual calculation does jackson hand yet produce the data they have it gives the individual data but that it doesn't matter because for purposes of certification all we're saying is you multiply the surrender charge on the shore under judge so whoever got charged to surrender charge they could charge a surrender charge on that so it's a very simple mathematical calculation and their argument that oh wait a minute if you do serial won't it still doesn't matter the contract that you may change that's not going to change so whatever surrender charge was actually charge is a mathematical computation and simple so when we get the data from jackson which we've been trying to get which we need for the merits i did not b needed for this purpose in this kind of case because this is not one where the expert needs and i didn't need to address one thing important they didn't properly rose a problem with living and death benefits that did turn out to be complicated we're dropping we're not going to proceed on that it's not an issue that i think is probably going to be able to be done on  not going to do that we're not going to proceed on that and therefore we're down to the very simple damage analysis mathematical surrender charges or a new charge period before we move on past that to you  drop in the district court or you're dropping in here today for that this court i can't remember what i said zachary so i don't want to represent that i said it when i have to be wrong we are clearly dropping it today for purposes of your honor considering whether have properly got a certified class with a damage model that's appropriate so i don't want to say i did the district court because well i probably intended to i don't remember exactly what i said so i will say certainly we're doing it today but if if you are making an admission today doesn't that almost decide the case for us in the sense that it would just on the basis of that wouldn't have to go back to the district court to reconsider the sort of case no no no because the the court granted sort of occasion on bo if if if we take away one that's more complicated does that in any way undercut the certification of this simple issue i don't think so but the other side noticed an appeal of a certification order which is the thing that we have before think of believing that this is not an issue i thought i would have to address so i apologize i'm not prepared to address it but i believe if i stipulate that we're only going to proceed as i'm intending to do we're only going to proceed on the narrow damage issue i don't think that does anything to undercut the district court's order all it does is eliminated and moved an issue that this court might otherwise have to address that's my view we could certainly breach that on the on the annuity surrenders why would that not to feed all the differences the different calculations in the different time frames why would that not defeat a commonality because it's formulated and other words it is it is merely a formula that i think this is what if you look at the issue on class certification with respect to games first of all there's lots of cases that say that the fact that there's a lot of differences on damages don't matter isn't the real issue is can you do it formulaically and that's what we're saying here is is it's a very it's not even a difficult formula it's just a simple formula of how much surrender charge were you charge and therefore you were charged we know because jackson so stipulated they charge surrender charge on that amount you get that back so that's the that simple formula applies across the board  surrender efforts there were there definitely going to be multiple surrenders but as i said it doesn't make any difference because it's still our simple formula is how much surrender charge were you charge and then how much is that and then you have this ring to charge in this regard if in fact the later model would somehow change the amount of surrender charge in that's going to change the formula but that until we have the actual data we will not know the exact parameters of that but we know it's going to be formulaic there is not there's the individual issue on this this is just how do you deal with multiples you deal with it by taking the second surrender charge the thirds or in the charge whatever it is and you're still going to apply the same simple formula to it i think that's the way it works ok let me let me turn to per difficult choice we have to make jackson raised a ton of fish and we had to brief them and and i did not want this issue of the merits of person jurisdiction is a critically important issue and worthy of a very extensive and careful thought and our position is it's not even ripe or appropriate and we think it's not ripe under our view it's not right under direction ok is that that's interesting is that different from paper exactly and that explained that if you look at jackson here's jackson's position they say that personal jurisdiction performance was not quote legally but jackson's view and the position they've taken in the court we don't have any right or power to raise this issue it's not a bailable to us until ok what that means is that it's not part of the certification or it's not even before the court because it's not an issue that jackson can write what doesn't make sense is to say that this is not plaintiffs and then the class plaintiffs come into the case which doesn't happen until the judge issues the certification order right now we can ask you can suppose because i'm understanding your position it is that jackson should have upon the filing of a class complaint plaintiffs but of course we would you know how how would you have done that because your clients were to named plaintiffs not be unnamed putative ones yet and you were never appointed or there was never any other person appointed as the interim class counsel ye that's a matter there is not i mean let me just deal with practical issues in the in the area of class actions you don't you don't have motions for interim class counsel unless you have competing cas ok if you have one case you don't file a motion gee judge i want to be appointed interim class council where no one else is buying for that position you are by virtue of filing the case and by maiming it is a nationwide class and counsel is because that's the only thing i see in rule twenty three that talks about prior to certification a class counsel representing an unnamed plaintive so if i'm if that's true if there is no other place in rule twenty three or any other statute i can find would suggest that th e class counsel in this case can represent the unnamed putative class members prior to class certification then under the theory that you're adopting are advancing i'm sorry that this but the motion to dismiss should be filed soon or they would be no one on the other side to defend the interests of say ok but i think that is still it doesn't change the obligation what what that would mean is the practically speaking it would mean that that would assume jackson's ri you never have an obligation which means this whole issue is mooted because you don't take it up that means if it can't come up before certification it can't come up in certification it only comes up after certification which means you start over all of a sudden you have certification of a nationwide class a certified then you go back and you start over in the district court gets a motion to dismiss from the respect of the unnamed class members and you start  that seems nonsensical impractical to me it and no court has of thought did that as the as the procedures supposed a souse be in diversity and brings a claim per one hundred thousand dollars so he moves to dismiss obviously b we get to move to dismiss again it be vinge i'm sorry if it's even joins the lawsuit revenue point of joyce lawsuit obviously you get a new motion to dismiss right so why isn't it exactly the same in class actions because actions are what would be the best case i guess what i'm looking for some of the already i mean i understand the different i'm trying to think of there's no case that i can find in this in your read brief that suggests that this is the way we do it right or every one of these cases that  a motion to dismiss on the class members of which we cited half a dozen all are talking about cases where you've got putative classes that aren't yet certified but none of them including the twenty eight jr preceded the twenty j we got yesterday but none of those cases that are talking about whether this is an available defense to the defendant is grappling with the questions that they were discussing at this moment in the argument right there their talk they might say well bristol myers may have been a new new law or new rule that we give you and in additional defenses but they don't grapple with the question of whether the putative plaintiffs then come into the case you are exactly right but my position is that's because nobody thought this was a reasonable position to take until jackson asserted here and that's why we're dealing with it here because this is the first time anybody's ever really made this argument and i think it i don't think that any court ought to accept this this is not the right way and let me i want to be fair to the district court here because the district court had layers of analysis on this way and it's important to consider that and i want to run through this it won't take very long because if the facts are important and there are cases that go different ways on  the standard here is abuse of discretion so we need to understand what the district court was looking at jackson filed motions to dismiss on jurisdictional grounds that were her progress so that wasn't like they weren't focused on jurisdiction they filed motions on they have a motion to dismiss pinning when bristol myers was decided june of two thousand and seventeen they never they left it pending three months after bristol myers they never moved to a man never moved to supplement the briefing never did anything with respect to bristol myers they filed a twenty six f report with us jointly that said personal would they not have waived it i think that's a close question and i think they might well win that and i think that's part of the discretion here because they did not raise it they participate in nation wide discovery they entered into the stipulation the court decided three months later the motion to dismiss had been pending then jackson put in an answer this is also inconsistent in october they put in an answer that said no personal jurisdiction for the unnamed class ok they say it's not available but they played it ok but they didn't go to the court and ask for leave to file a motion to dismiss at that point they didn't raise it they didn't bring that we were scratching our head what are they doing seven months on this issue and that's a waiver and that's not an abuse of discretion that's our position but they it was worse than that because they didn't even brief the waiver when they fall the response to surf occasion th certified denied that this court has personal jurisdiction over jackson for the remaining two thirds of the putative class members residing outside so the rule twenty six f report was was just report on how discovery would be conducted was telling the court that with respect to the six thousand dollars that is paid to the real estate agent is part of the hundred thousand dollars a plate and there's nothing nefarious about this there's nothing complicated or charges on charges or infinite series it's literally just how those objective evidence that can aid in the interpretation even of an ambiguous so we clearly are going to making to you today is the contract isn't in big us even if the contract is an ambiguous you still get to consider objective expensive evidence most particularly trade usage into opening those example here's a baker's dozen a contract between bakers may well use the word doesn't without defining and if you just look at the face of that contract that might be unambiguous but you would go far astray if you went to  documents i didn't understand that to be a general withdrawal you'll see just money there record pages twenty eight thirteen to twenty eight sixteen that's mr macdonald's testimony the consistent understanding of other brokers is that jackson is correctly  offense because i've i will tell you i was shocked to hear that i think it's confessed there and i think that standing alone would require reversing the ring the district court i will tell you i don't know them off the top of my head but i do know there are serious due process constraint that restricts a class council's ability to compromise the claims of unnamed class members in order to manufacture predominance so if what mr mclaren saying is yes these unnamed class members have suffered living in de but in order to treat this as a class action we are going to on their behalf waive their right to recover those living death benefits because vidual issues my understanding is due process absolutely does not permit that to occur any othe