cost and time lost as a result of a data breach or actual damages on this basis alone we ask that you reverse in a remained a district court opinion so that this case may proceed beyond the pleading stage shrimp on the issue of the certification under rule fifty four dollars b it is a parent's position that this court firmly possesses jurisdiction the building the babbitt case made clear that in assessing whether or a fifty four dollars b certification is proper it is it is says under an abuse of discretion standard the things that would be considered would looking to the related illness or not the claims that you're trying to bring before us and the claims that are left in the district court yes the this is exactly the situation where fifty four b is necessary because if this court were to determine it did not have jurisdiction and send it back down to the district court d the disher court would then presumably interim or clear order affirming that this court did after six and we will be right back where we are but more importantly for this but there are two possible problems here one is that the district court didn't explain why it wanted to certify but another one regardless of any explanation that the claims before the district co are entirely related to one bound up in the claims that are before us they all arise out of the same data breach and they the identical claims  contract claim under maryland law arising out of the spritzers here and has also below your honor if we were to proceed below it would go to final judgment at some point either way and we will be right back where we are with and our main jurisdictional statute says we only take final judgments and it was certified as a final judgment based on the inefficiency of proceeding with a very small percentage of the case  the claims of the trailers which were the only ones that were preserved all of their other claims have been dismissed as well with the exception of two so to send it to return the case and determine that this  guarantee that this case comes back up on appeal the other reason to accept the certification of the judge because the judge made it clear in his opinion and i'll just read the quote in reaching this outcome the court acknowledges the difficulty of applying traditional tort and contract principles in the contemporary context of data security so there you have the court requesting from this courts some instruction one business day before the appeal w miss case and after the district court made its ruling the decision it o p m came out and in the context of the privacy claim o p m recognized the exact damages that were rejected by the and others not and yet we said in the tolson case in one thousand nine hundred and four claims are so closely that when claims are so closely related that they would fall afoul of the rule against splitting claims i brought separately they do not qualify as separate claims within the meaning of who fifty four be so how can we have some of the drinkers claims in before us on appeal and others not when they all come out of the same operative set of facts they're the reason that this court has all the claims for it is because of you exception to the general rule under fifty four b or district court can determine and give jurisdiction to appellate courts to provide instruction and to provide reasoning so that judicial doesn't seem at that under tolson it doesn't that doesn't seem to be the power of the district what happens if it's not it's also notable that those claims are stated right now is more clarity in the fifty four dollars b order i think it's important to recognize the policy behind fifty four dollars b is to avoid piecemeal appeals and what it will be guaranteeing if this is dismissed for lack of there's basically the same stuff going on anyway we might as well get an early answer on it so that we don't have to go forward of the district court and let it be told later on that we went forward to do something that we should have been doing anyway that's kind of your argument is look why don't we just get an early assessment from the court of appeals on whether we should even go forward with claims that are really closely related to the ones that are up here and that's just buying into the notion that all the claims are closely related and your point is just well let's get an early answer is just and i'm not saying that that doesn't have some intuitive force in the abstract but it just seems to run up against exactly what our cases say for example even in the the building industry case what we said is a district or to properly consider such factors as whether the claims under view are separable from the others and whether the nature of the claims are determined such that no a whole court would have to decide the same issues more than once thinking the same consideration you're pointing to and having it dictate the opposite conclusion that precisely because there in a one million is a scene with one another all the more reason not to certify and to have the proceedings go forward in the district court all the way to the end and then everything comes up once i guess the response will the st response that is it is more than just a request for an early determination on some of these issues it is now becoming at least in appellants opinion that that early opinion has already been issued in o p m that would be st but secondly i think what has happened with the trailers and everyone else's claim is that the court has made in ruled for a special arena of damages in the context of data breach cases and the court has said i must perceive a later actual misuse and identity that to recognise any claims at all so in that respect that is a separable issue so what the court would be looking at would be is it correct to say and it's interesting because o p m also had victims of tax refund fraud but to say we recognise that that is and these other claims which would be lost mitigation credit repair credit monitoring is a separable damage that would impact not have the claims in the vast large majority of the putative class that this court could resolve so it is conceptually because it was a false determination in distinction unique just to the data breach context that we're going to that the court would require immediate misuse of data in order to proceed past the do well b six stage and that is what that is what the reversible error is throughout the entire opinion is this false distinction in damages in requiring an immediate misuse of the data so we believe that the court does firmly put possessed jurisdiction of what we would ask is that but do you if we put formally possessors the action for the reason that all the district court had to do was make the certification that's called for by the letter of fifty four b regardless of the reason why there's no just reason for delay because i read building industry to stand for the proposition that it's not enough just to end can't what the rule says there also has to be a basis for understanding what the reason is for thinking there's no just reason for  and the disregard didn't do that in that order at least they didn't expand upon the reason so then the question becomes for us do we look past the fact that there is no explanation on the face of the order and try to find an explanation for the record which may or may not be there or do we not care about the fact that there is no explanation of the reasons for jurisdictional purposes so your honor i think you do care and you and you answered it yourself your honor saying that you would look at the record so at a reading building the because i'm not even sure about that actually of all bracket that but and then be you think this is a case in which the reasons are apparent from the record that's exactly right your honor that we believe that it is evident to use the building the bad language from the record that this court possesses jurisdiction and we believe to make of the pragmatic point that in viewing the fifty four certification in determining that the language was not explanatory enough it would really go against traditional review the record and find that it does is that it and what does the record tell you if you are if your argument is we look at the record and it's obvious what is obvious with the record this is what the record would tell is that the case is at its inception and never again will court have to determine if the pleading properly supports or properly alleges damages that decision will never have to be made again back to be made dispositively here today does the pleading allege actual damages any reason to think that the tringle or sprit chip contract claim is strands actually unrelated to their negligence and fraud and statutory claims that you're just trying to put something you have a vehicle for making the argument you want to make it's just not true fifty four b certification deep interesting lee enough you're on the record were will show that the appellant's asked for that type of certification and the district court then occasion i would just say that point is made to show that the the record has more than just the law it's appears that the court is highly concerned with the limited language in the fifty four dollars b order and i would just say that that is part of the record showing that dispositive questions on this appeal which is whether or not these types of damages will be recognized in this circuit can be answered through o p m so a simple reverse or of reversal in remaining with instruction of all of the authority  understanding that point i guess what the hopefully both parties but particularly the plaintiffs because the breach happened in two thousand and fourteen want to avoid is sending it back down only dissent immediately back up over twelve ninety two dollars when this court does ages it just doesn't seem separable because it seems like everything you're saying bolsters the proposition that you made in the district court which is look you definitely should stay everything that's pending right now because it's completely bound up and what's up on appeal there's no sense in going forward and all of that just seems like a great argument for why this isn't a five thousand and fifty four b case even if the parties hadn't thought of it that way before it all seems to support the proposition that this isn't typically what we look at and if you for the context if if if move forward it is still at the inception of the case ask you one question and i know you we are taking your hamburgers and question but obviously it's important because we have to determine whether we have the authority to have this case so one way one possible way to look at the fifty four b question and just ask for your reaction on this is that under building and to the under building industries case the jurisdictional requirement is that the fifty four dollars b certification be made by the district court the district court in can't them appropriate words and make the determination and one way to look at it possibly i'm not saying i don't necessarily think that's right but it's possible is that the district or did do that here and then there is the nd question of whether there is an adequate explanation of the reasons why there's no just reason for delay to that one possible way to look at it is well look at that that part of it isn't jurisdictional that part of it has to be flagged by somebody who's objecting on appeal and in this case there was no objection made by anybody that there was no adequate explanation of the reasons because i understand building industries i think that the apple either actually raise an objection then and then the argument be well as to that it's an abuse of discretion review where somebody actually flags it but it's not jurisdictional in the sense that the that they still do not object to this court possessing jurisdiction that is a distinction in the case and no one subject to them i mean frankly the only problem with that is that policing the limits of the fifty four b certification is designed not to protect the rights of litigants but the integrity of the final judgment rule which is our yes and that's that's well taken your honor the the lack of explanatory language in the fifty four dollars b order could still be reviewed based on ability to abbott in the in the narrow lanes of abuse of discretion to confer jurisdiction of this court so this court could still be determined although it's not to the explanation to give us the full explanation that we would appreciate because no one has objected because of the progress  record of this case that we still would accept jurisdiction in make rulings on the issue if you're if it's ok with your honor's can i dress just a few of the letters that will give you time and let me know if you have time for the merits let me just ask one more question along these lines which assume for the sake of argument that i think fifty four b is all about interrelatedness of the claims and the argument you want to make just goes under the twelve dollars money to be bucket fifty four b s about in a related news is there any explanation that the district court could have given or could give  what's before us is not in a related with what's happening i think the the argument for that it's not in a related is that this is a this is a field of damages for all of the claims not just the trailers this is a field of damages for all of the claims that the district court refuses to recognize so that would be the the unrelated separable issue is that this is a field damages that the court refused to recognize and so what should be addressed by this court and it's our position that it already has been addressed by this circuit in o p m because of the exact damages that o p m recognize including credit repair but don't i don't you need to show that what's in front of us is not related to what still the district court that that's that's the interrelatedness question and so so how would you answer that how would you say would still down at the district court on the train was going is fundamentally different from  so the fundamental difference would be that the really the only things that the trailers could get were the immediate out of pocket loss after the breach which is not the question on this appeal that you have immediate misuse of data because the real question on this appeal is are reasonable meet at mitigation efforts even without later misuse actual damages that's the real question on this appeal so that is a separa question that can be distinctly answered for this court but then why stated in the district court i just it's hard for me to see how two things can be true that that was essentially for the that was to say preservation of the parties resources your honor to not proceed through discovery and then wait for the appellate opinion and then go back through discovery so that's that's effectively what i was stating what why not go through discovery that's on a different light why would you think that's going to happen up here the defendant that it seems to me that a judgment was made that in fact they are there were there were there were concerns because it's a putative class of moving forward with some of the claims for the pellets and not the vast majority of the other ones so that was the primary reason for the pellets but care st did not consent to the stay or agree with the stay so i wouldn't take that is indicative of whether or not they're related it really was just a matter let's let's go to mary let's go ok thank you your honor in going to the merits of st want to address the district of columbia consumer protection of procedures act claim which is one of the strongest claims in the case and that claim eliminated for everyone that claim is does not exist anymore this claim is predicated on two things the misrepresentations that care st would safeguard debt data but also the specific misrepresentation that the data would be encrypted failing to encrypt the data made it both were excessive will and more valuable to the data thieves who still possess it to this day so that is a material misrepresentation this is a claim that should not have been dismissed by the district courts your honour's can look at the bell coffee medstar opinion where the district of columbia court of appeals ruled in the context of a data breach where it was dismissed at the trial level the court of appeals of the disc columbia ruled that the district of consumer district of columbia consumer protection procedures act claim should persist in reverse the dismissal under twelve b six which is exactly what happened in this cape case to the district court that is a two thousand and eighteen opinion in the district courts that have applied it in the consumer claim is a strong claim it should have persisted it's also the appellate position that the case of co horace was too broadly applied st because state farm itself went to the summary judgment stage this case is still it in its inception at the twelve b stage so to take the summary judgment opinion or call her which had the benefit of discovery in a rule that there's no way any of the plaintiffs in this case could maintaining towards was reversible error in effect we are asking for this court to follow the circus logic kept coming about year your argument about randolph why doesn't randolph so eliminate you mitigation the reasons when as we have to follow randall you do not have to follow randolph you do not have to fall read up because a bell cough was in two thousand and eighteen envelop cough it's clear that in the context of data breach st you have stand in which is a different rule in the brain golf where they rule randolph to not have standing and then seconds that the claims could persist past the damages phase so this court is looking for a district of columbia court of appeals case to find instructive to take a more recent analysis enveloped off the fact the fact that randolph also randolph was this the stealing of a laptop your honor i'm sorry i'm not recognizing the bill cough case and maybe that's my fault but this is it in your brief it's the amount in there that i don't i don't believe it was there on a whim why not it's it seems to be absolutely critical to the argument you're making  now you argued randolph that's what i'm prepared to talk about and understand what why are we getting a new case here when i came across it it seemed like a very strong very good case and i don't know if it perhaps it came out later  is because it was the stealing of a laptop which is harder and which is the same as s a i c so there's a field of data breach opinions that recognize if it's just a laptop it's taken or a tablet that could just be a regular thief who was stealing have standing in a data breach and you do have consumer claims from i don't know anything about but but but to answer your question because epic also epic also in its amicus brief i think asked the court to certify the appellant's would certification to the district columbia court of appeals certification would be the nd digits could you ask us to certify we did not request that we requested reversal i know that the brief requested that certified question from reviewing then why isn't that the what a court sitting in diversity is supposed to do that that could be the reason that the appellant's believe that reversal would be necessary is because the date the exact damages in this case that the district court refused to recognise have been recognised by the circuit so that's why the appellant's are requesting but not in d c law right but damages presumably would be damages so damages in the context of the privacy act which in fact has a heightened requirement for damages it required a bit too near a loss here the bar is don't know what the answer is under d c law and that's the law that we have to apply that's correct  argument one is the killer stiction all prerequisite what actually gives the court your stiction and that's mandated by the rule itself the district court has to expressed determine that there is no just reason for delay and has to be a final judgment there's no question in this case that the jurisdictional bar has been met the question is and it's the nd point the nd point is is it dollars the rd circuit is also expressly looked at that issue and for a long time the rd circuit they viewed it as a jurisdictional bar and then it was determined in a later case that it's not a jurisdictional bar well it's one thing to say that giving a statement of reasons is not required much less a jurisdictional prerequisite there's a different thing to say that when we review substantively even if we think there's no requirement to state reasons still very clear under the sears roebuck and those cases that we actually have to review the in a related miss that's right th certification or so and really that nd bucket is the key for this court right did this report abuse discretion we would say did not this is bring towards being clear and curtis right and sears that the district court has significant clear what to look for you know what is the meaning what is the colorable argument giving some degree of discretion of the district court what's the colorable argument that the claims before us are unrelated to the claims pending below that they are absolutely unrelated in the district court made this clear if you look at the record there are two buckets of claims and forty one dollars is all the work claims from every one of the name plaintiffs including the trailers the district court dismissed all of them in a final judgment on all of them that's one bucket i think that's an easier bucket and explaining the difference between what is it left at the district court versus what is here sorry say it one more time all the tort claims by all of the name us right at the district court set as a matter of wall as a matter of d c law what's being stated in these alleged claims do not constitute viable cause of action that the case can move forward into discovery so an allegation of actual damages ok so district court carved out but to name plaintiffs and he was very explicit in this the district court carved out the two name point of that alleged exposure to their data plus actual i mean you know the way i was thinking about it is you have eleven claims and five sets of plaintiffs right there are seven named plaintiffs the fifty five different boxes in them in the matrix of five plaintiffs and eleven claims and fifty three of them are before us and two are not it's actually more engine which is the really it's the over seventy  claims number one they arise out of the same set of operative facts and number two a lot of the legal issues on the merits turn on arguments about the extent to which tort claims are or are not flyable because they may or may not be the centrally coming misplayed of contract claims with the issues so this court has to decide in deciding this appeal are not intertwined with the same issues of the wall with the claims that are remaining at the district court and this is what was key in the babbitt case so if you look at the two issues in batting the one that was decided by the district court and the one that came to the circuit want to appeal the two issues related to the fish and wildlife service decision to list the th certain species of barry shrimp as critically  dangered that's one of the issues should the should the species have been listed as critically endangered the nd issue that was not decided by the district court that was remanded to the department of interior was should the habitat where the shrimp live should it be listed as a critical habitat under the endangered species act this court and it's been also a paragraph in bob when i was looking at the fifty four dollars b certification it's pacifically said that the issues of fact in the law with respect to these two issues before it were so intertwined that by us deciding the issue that was before them at the time there is no guarantee that we would have to decide this again down the road  in those two issues they're both required by the secretary of interior to make those two decisions within the same section of the endangered species act and the secretary of interior is actually supposed to make both of those determinations concurrently according to the et so they are inherently intertwined the two issues are intertwined that was one of the reasons that bobbit couldn't look at the record where you have just the one page certification order from the district court and say that it was clear from the rest of the record that we should hear the issue that is on appeal because there was no guarantee that you wouldn't have to decide the issue again down the road here there's no risk of that because the two issues before this court are there's no chance that you have to decide these two issues again the one is can anybody bring a tort claim into is this an individual that has data exposure but no misuse  actual damages those those issues are not going to come back to the school i understand timing it just feels to me a lot more like a twelve minute to be argument than a fifty four b argument i mean suppose maybe try this one suppose there's a two count complaint for strict liability and negligence arising from in a products liability context and on a motion to dismiss a district court says district court sitting in diversity says the law of this state does not recognize strict liability i'm dismissing that claim let's go to discovery on the negligence cl certified under fifty four dollars b on the theory that well the existence of strict liability under state law isn't discrete separable issue that's not going to come up again at the district court believes it could be certified he can be certified given the significant discretion that the supreme court has said that the desert judge has in the key is whether the district judge is making that decision in the interest of sound judicial administration that's the language that's in the curtis right case and i think it may be in response to that request that they made to the court the court and i think it was either a day later maybe the same day or a day later i can't remember the dates the court issued the ruling saying the rest of the case without fuzzy so i think it's a little more nuance than just waiting for these issues to be resolved because the standard for a certified question is is the local law of gen genuinely unclear and under randolph it's not genuinely unclear the district court didn't think so randolph is clear that caught in a mitigation damages costs of credit monitoring do not qualify on his damages let's back up a little bit what was a producer court wrong to state that actual damages are an element of breach of contract claim under c law given that nominal damages are always available for breach of contract if think the key is that damages are a requirement of breach of contract that's what we have and when we have ever we've got we've got c law francis approaches raven right versus howard university who says that you get an award nominal damages for breach of contract so why would some damages still have to be alleged why we still think that they have to be alleged here we go reading from francis versus raymond under district of columbia law plaintiffs are not required to allege the damages caused by a breach of contract to survive a rule twelve  six motion to dismiss rightly howard the absence of specific monetary injury does not prevent the accrual the cause of action for breach of contract even word monetary damages cannot be proved the plaintiff who can establish a breach of contract is entitled to award nominee damages no you don't reverse on that point on the contract claim do you still i mean i guess there's still a separate issue that was looked to us about whether things like mitigation expenses or benefit of the bargain are not nominal damages adequately pleaded in this case you want us to separately address those questions even if the breach of contract claim has to go back at least for nominal i think we have to yes and we want to think we have to but i mean if we're buying into your argument about loose piecemeal appeals to resolve issues sooner rather than later presumably we might well hear there are other causes of action that require actual damages more sufficiently than the cases that judge griffith just read for example the tort claims were originally dismissed for lack of damages tort claim seem to me are different when there are other claims that were dismissed  damages as well that are not just a breach of contract we don't need to go to the damages of the tort claims i mean that's i thought your argument there just twittering that there is there duplicate of the district court you actually dismissed them for lack of damage same misconduct that comes from a contract can i ask you about the d c consumer protection claims that seems to me the other one that's strong for your opponents so why does that claim require any allegation of damages doesn't and we didn't argue that the k your honor the reason that claim fails is because it also but the zeroing argument is because it's bound up in the case specifically addresses allegations made under a breach of contract vs under the d c consumer protection act and when it's bound up in the exact same alleged misconduct there's not a cause of action under the d c consumer protection act why would that just seems hard to square with how consumer protection statutes work right the classic i mean the consumer protection statutes expand on common law fraud claims classic common law fraud claim is a huckster salesman makes misleading representations to prospective consumers to try to induce them to enter into a commercial contract and buy something that wasn't in your example your example though there is not the claim would not be of the breach of contract written it picks up picks up conduct that would constitute fraud as well as simply making a representation that a good has a characteristic that it doesn't happen but but the case law the premise that in this case the tour part of it is bound up with the contract part of it but you could also view it as there's two different things being alleged one is that if the internet policy is bound up with the contract then it's effectively richard contract claim but then there's another quote another claim in the alternative that look even if it's not even if it's separate from the contract then we still have tort liability predicated on a breach of the internet privacy policy and then you don't have the problem that it's ground up that are going to translate was made in the commons reply brief that argument though is not sustainable when you look at this complaint and you see what actually is alleged so ok the money that the complaint specifically brings the privacy policy within the four corners of the contract it doesn't get in there but but it the question is whether it does that exclusively i think it's fair to say that it's part of the contract claim but the question is then is that also a separate claim that says look even if we don't look at the internet policy as bound up in the contract claim it's still creates a predicate for tort liability if you do the latter there is no contract that is the breach of contract like r in the old is not going to be alternate if they give up that they're just saying yeah maybe it's true they can we don't believe that this complaint actually does does but if they did it would be ok to say there's a misleading or misleading statements in the internet privacy policy if they're part of the contract we claim the breach of contract if they're not we claim fraud and consumer protection i haven't seen a d c court of appeal decision addressing that specific type of complaint based on your hypothetical i think so which just seems like an alternative pleading i think so you just don't have it here and the cases that you're on relying on don't address that situation they address a situation in which there is only a contract like it's all bound up in the contract you don't have the pleading in the alternative well in those cases they're trying to bring tort claims and also d c consumer protection that claims but also a contract claim right that's right point on the consumer protection claim and the statutory schematic in it how this complaint was played because we're the ones who drafted it this is how it was played in breach of contract express or implied unjust enrichment and a consumer protection claim so already your honour's can see that there was clearly alternatives so that was exactly right and even more to judge katz points if there are the entire point of consumer protection statutes or to provide additional relief the interpretation of the district court that a contract could abrogate those claims would mean there's no such thing as lemon will protections there's no such thing as  misrepresenting the type of product that consumers are buying where there would be contract so that's that's that is exactly on point in the misrepresentation that this data was encrypted is critical because of that it made the information stolen more valuable and more accessible to the data thieves who still possess it so those were those were the points that you know we wanted to address to the courts so what do you make of cohasset us i mean i agree with everything you just said about both consumer protection and fraud and moreover i mean i i find it implausible even as to negligence right i mean doctor get super malpractise he's only doing the operation because he has a contractual relationship with the patient but all of that said co harris says says what it says and says if something is bound up in the contract then no tort claims i think i think the real distinction in co harris is st that it was at the summary judgment stage and as your honour's have keyed in on this is the set this is a pleading dismissal so to make the determination based on co harris which that case itself was a broken radiator in a claim made to state farm insurance was able to proceed to discovery to see if it could support the tort claim so that issue that there could be separate torches conduct to support the claim which could be a factor here to support a negligence claim has never been developed so it was premature for the district court to apply co harris and dismiss every single claim which mr gray would inform the court it was important for the fifty four b issue that all of those tort claims are before the court so suppose the internet policy were a contract term would claims not the not the consumer protection act claims and not the other claims that are in the complaint but i think it's a difficult position that the case in because a lot of what has happened in recognizing like your honor did with contract damages and your honor did with consumer protection one thousand five hundred dollars damages which was conceded that's a damage all of these damages are real damages that this circuit has repeatedly recognize and because when we asked for the we didn't ask for the fifty four b ruling but now because of the the difficult appellate jurisdictional issues really what we're requesting jointly from the defendant is that this court take a look at that record and see if there is a way to make it evident from the record that this court can possess firmly jurisdiction and let this