during the course of discovery in this case the plaintiffs asked the defendants how they got prior express consent for all the calls they made at issue in this case they responded in two ways through membership in a chalmers program and through a guest of one of the many hilton affiliated hotels providing their cell phone number at the time of making it checking in or reserving a room at one of their hotels as a result we tailored to subclasses to respond to those two issues of prior express consent h on or subclass which is going to ask the common question of whether the common language in the h honors terms and conditions constitutes prior to press consent for the calls at issue here the second one was the reservation check in subclass which asks whether voluntarily providing your phone number to a hilton affiliated hotel constitutes prior express consent for the hilton grand club to call you promoting their timeshares it's our contention that these that because what they have said is yes there are these individual interactions especially in the reservation check and you know you check into a hotel the last of your cell phone number they provided to you but nowhere in the evidence and i'll ask the court to ask the defendant to point to it because it's  not there is there any evidence any declaration from the hotel employee any declaration from someone in management that says this is what we do but there's actually no record in the evidence and this is why if also directly under this court's decision and meyer in that case the defendant came forward and said well there might be individual issues of prior express consent because some of these people may have consented but we got their numbers through skip tracing and this court said well there's not a single example in the haven't in the in the record where that is actually the case and as a result we're not going to come up with these hypothetical and individual eyes individual issues to defeat classification and that certainly makes sense when you're weighing the common questions and the individual questions an individual issue can't predominate over the common question when there's no evidence that it actually occurred and so that goes with reservation and check and subclass there there are individual interactions but there's no evidence in the record that someone calls for you services opportunities you know something generic like well again there's there's just no evidence and that's the real thorn in this case is that they claim these individual issues exist but there's not a single example remember this class is six point five million people which is therefore a six point five potential individual issues of consent yet we don't have a single example of consent other than what they said how they get the classes can be divided into two sub classes i stand there and i believe and i could be wrong on the numbers on this the h r nurse consists of about three point five i think and the other one is about three million and that's through their own records of how they gathered this we it's not hard for hilton to determine i'm not asking you for how you came up with calculations i ask you how you define the class these people gave the cell phone number so that people actually gotten calls on these are call and who it is and and who who they contend they get consent from via the uniform terms and conditions and the remainder which of the people who provide on terror provided their cell phones at the time of check and i've got the followin question for you the district judge in the exercise discretion declined to certify we review for abuse of discretion so i go and you propose to some classes and the reason given by the district judge for declining to certify is the t wo classes or some classes is that when in each of the proposed subclasses there are a variety of ways in which they might have provided their phone their phone numbers  didn't you ask for further sub classes so for example a subclass of people who provide their phone number by filling out a paper application with respect to those people it will be uniform that's correct your honor and i do  not hang on a second but you didn't ask for that you asked for some class including this as is as part of the subclass so without your saying well listen judge i'm going to cut it down even further and asked everyone who filled out a paper paper application we know that uniform but you didn't do that why not well during the oral argument on this matter the district court judge did ask would subclasses fix this and we said it would but again we don't think that's that's an issue because if you look especially for the age on earth the terms and conditions yes we contend people did sign up for the h on earth terms and conditions online on phone and by person but what's common to all that is that in order to sign up you have to agree to common terms and conditions  the same for the reservation and check in class we can tend to people did sign up artists did reserve rooms online in person what's common to this is they all volunteer provide their cell phone but also comment this is there's no evidence individual interactions to be so we have because it's all the record isn't totally based on paper will either win or lose on the question of whether the disclosure terms are enough that's correct and i think that th come up with all these different ways and claim that these were different ways they got consent despite the fact that early in their case they said they got consent for everyone in one or two ways you know you don't have to wait for a primary if you can lose on the motion and then you say ok we've learned something so now we make a second motion for classification we ask for a subclass listing of just the people as to whom that can't possibly be an individual interaction because it's all done on the on the paper that is something  we possibly could have done we have they said my experience and moving for classification once you move you know when you try to redefine there are sometimes issues with judges ability to even hear that or the wanting to even hear that i will note before my time is side members of court as angelo groups and i represent help me today thank you for allowing us to be here i'll start with if you like the portion of the questions that you raised with counsel in particular the question of subclasses and i think it's important to understand why subclasses would not be manageable here and an example of that is when you look at the various ways in which hilton guess loyal customers of hilton provide consent to be called under cellular phone there are a number of different ways yes the two main methods would occur during the hilton home now as during the greatest ration whether it be prior to or at the time of appearing at a hotel and there are numerous interactions that are along the way so let's look at the evidence that was presented below about that we know that mr connelly one of the putative class members stayed a number of times at hilton resorts properties made reservations under a number of different ways during the registration process whether occurred online through a travel agent that he used or through his business partner who we authorized to make reservations for him he received information and confirmation about that stay which included reference to hilton's privacy policy mr connelly excuse me mr merrett testify that was mr america was unclear mr merrett testified in deposition in this case and his deposition testimony is in the extras were excerpts of record that when he showed up in sarasota florida to check in for a reservation he had a conversation with the reception desk during which he was handed a piece of paper that provided information about his stay that he chose not to read he was distracted by family members he also was asked for his cellular telephone number he asked the clerk he says under oath i asked the registration clerk why do you need my number fo a common issue every guest who shows up and has a question with an agent on them or on or through travel agent or through a business partner when asked for their ready and then he gets promotional stuff afterwards it's not a violation i'm not asking classification no i'm just asking the violation of the statute we believe it is not because because the issue of consent to be called crime i know but the facts you just gave me he says why do you need it because all we can call you is ok you can have it that's franks me is i give you the phone number for this purpose there is no question the line of cases that fall of the f c c is nine hundred ninety two order that providing a cellular telephone knowingly is consent to be called on that number unless it's a new less consensus withdrawn is in fact within the g c yet as well this court has ruled in robert's versus people pay pal that providing the mere act of providing a telephone number to an entity is consent to be called we would also direct  robert the roberts the pay pal case in that case the the providing of the cellular telephone number was use was considered to be consent to be used beyond just as mere transaction that it was set up to provide and in the bear vs saved i'm sure it said the concern extended beyond exactly the reason yes long as it was within the normal business communications of the relationship between the parties then that was permissible ongoing communication i'm sorry sir so you think that when you check into i tell you say i'm giving you my phone argument does exist but i think the point of what i'm trying to say today is that that is a very individualized inquiry that experience is not going to be the remembering you have on your answering just watches question as to whether the individual who says i'm giving my phone number so you can call me to get my own mother that when my room is ready whether that constitute concerns for that individual not for class not for anybody else to be called on sales calls that's the only time and the only manner in which an individual gave his cellular telephone you know you're very new york you're then i agree it may not it may very well be a violation however i'm sorry no there's no how about it you say only time and only manner you've been given a hypothetical you have been given something done no other facts ok so what is your answer the is that this marketing program targeted and was directed at people who had ongoing and longstanding business relationships with hilton these were people who didn't just one have one encounter let me let me let me ask  on the first page so you can use either number system i just want to show on the same page beginning in his declaration mr gast page number are seven five zero ok line i'm going to speak generally about the beginning paragraphs he sets up for the court the ways in which the hilton ran the occasion marketing program you remember the question and i'm just you remember the question i just make sure you were or were on the same page the question is what  evidence is there of anybody at hilton providing information to people who give their cell phone numbers saying you are going to get sales calls what paragraph fourteen of that same page applicants voluntarily provide hylton with their telephone numbers in different manners depending on the way in which they join the program and in that during one of the three ways in which applicants join hilton honors they are asked to provide a phone number not required to they are also told into three different ways somebody is told not in writing not clicking not checking is actually told by health an employee or somebody you're giving me your cell phone number and you make it sales calls where's your evidence that this has happened even once in the history of the world going going going back to genesis so your question i'm sorry i really want to be very clear on what you're asking not in writing orally you're asking solely orally or in writing i said to various ways in which people have these interactions i want an instance one single instance in the six million you've got here where there's evidence that hilton employee said i got the phone number and i told them you'll get sales calls we don't have a specific reference to a document that reflects that you have do you have a general that we know doesn't help me at all if you think it's in the record i need you to point me in the record where this if you're not telling me we know doesn't help and that doesn't advance your case of also where since you don't have any evidence of any such individual transactions as a district court seem to find acceptable why isn't the bases used by this a court for the one classification simply not supported that's why i asked you for the most favorable thing to your case i believe you are the most favorable point is that when whether it's a hilton honors applicant or a guest at hilton hotels the and that's not that's an argument you can make and you may win on that argument but that's a different argument from saying there were individual transactions where people are actually told you are going to get sales calls and we can decide as a matter of class demonstrate something that actually says people are really in fact what some people are told there will be sales calls i just don't see anything in the record that that supports what we have is mr gus declaration based on the business practices of h in which she says that yes during the interactive exists gushes whether it be by phone or in person opportunities arise like we know from mr perry marriage where there is a question how are you going to use our information just to be clear he never says we have a policy of always telling people what he says as if they ask a lot of pesky questions we will come up with this information is a basically what he says well he sa that there is a privacy policy that specifically states that when you give us your personal information including your phone number we are going to call you the pope's ok where they say that in the privacy policy itself it states that that you know  whole line of cases in which individuals have very specific relationships with the businesses that they transact with that is the direct relationship in which information is exchanged and there are circumstances to the issue of consent to be called and each one of those cases the courts look to the opportunity for interactive expressions for expressions of consent based on consent in writing yes or no you're supposed to tell people you're not a volunteer that they're going to get sales calls you know we have presented no evidence of that and said we presented evidence of a of a could interject yes question on that policy my recollection is that it does express they say that people in their numbers will get promotional but my question is do all the people all the guests all in that program do they read that policy before they've given their number normally i would think they haven't then maybe they get the policy later than they click out or sometimes your honor you raise the exact question here and that is it that is very much an individual lies inquiry that would have to be made there would be guests who would read the policy understand it and accept it you had to guess like mr connelly for example who said he didn't read it but they all have been given the policy they've all been asked to accept policy in one means or another and whether they read it or didn't read it are individual inquiries that form the question of whether that in fact was consent or not but that is a question that can't be handled on a class wide basis it in essence begs the question of what did they do what did they and but we know that the policy was there we know that they were formed or that on multiple occasions mr connelly mr merrett were given repeated information linking them to this policy and he states very clearly that we will call you on your cell phone or we will send you tax telling you about timeshare and vacation opportunities those exact words are used in policy the privacy policy as well as the hilton terms and between the caller and the consent there are opportunities and discussions that can absolutely frame what constitutes consent in fact these varied there's no binding authority no this would be a case of first impression for this court although i would argue that this court has already made a determination simply providing a cell phone may be enough but no we do not have a directive on the line service a phone service and then claimed he didn't consent and which isn't possible that term and people who didn't didn't get that then it's not like let me tell you the problem i have with your case i think with respect to uniformity and sort of ability the class if you want a class of people who signed up either on paper or online and clicked saying they agreed with the privacy policy you lose because the privacy law policy very explicitly says we're going to contact you a promotional stuff by phone so i can see why you don't really want to certify that narrow class because it's a loser the cases that you're go on are going to be the individual cases where you have individual interactions and those are disparate that's my problem with your case the the the plausible part of your case on the merits is the disparate part of your case i look at the privacy policy and it's just plain as day the privacy call policy consents to these calls i see exactly what you're seeing and i see a heavy hill to go with the h r subclass now with the individuals who did the occasions as hilton has actually as you probably are aware a conglomerate embassy suites hampton and i have a long list of all these hotels and work and that's going to the question and that's what we're going to go up against on the merits but because their defense is going to be look at this uniform terms and conditions that h honor subclassed agreed to and look at the fact that everyone voluntarily provided their cell phone number regardless of what may or may not have been said regardless of evidence to the contrary we can decide both of these issues very probably ever ask the district judge to certify anything other than the two subclasses the you proposed because i look at the two subclasses of the your proposed as you proposed them they are two disparate do you ever say the judge what i really want to do then given your response is i want to subclass that is all written applications i want to subclass that's all online applications to answer your question question directly after that order came out no but during the hearing we said if you know the court asked and i encouraged the court to look back at the the hearing transcript the court said we'll subclasses fix the problems i'm saying and we said yes yes it will and that's the closest i can to respond to see answer on that