we're here today requesting that the court grant the twenty three f petition to allow an interlocutory appeal on a very important issue these types of twenty three dollars f petitions are covered by a particular standard that your district court which we contend was in error would terminate the litigation war and show and there's been a substantial showing of a questionable decision by the district court or this is an important we go question a novel legal question that needs resolution and as a footnote sumitomo that indicates under special circumstances these petitions can also be granted so with that backdrop i'd like to tell the court why the position should be granted in our opinion when one reads the mclaughlin decision the heavy sea decision that i've already mentioned the dungan v i v ridge school decision mckown decision we see that cases like this which are effectively educational malpractise cases or educational misrepresentation cases which are not recognized under new york law have been repackaged if you will and there are claims or statutory claims that have been put forth to try to stay in the court and have an active litigation so here we have since three of the claims have been dismissed the implied covenant good faith and fair dealing and the general business law claims have been dismissed we have t claims negligent misrepresentation fraud unjust enrichment and the breach of contract which is not in question because that is out of the class context here with those three tort claims we necessarily have a reliance proof issue in other words one of the issues that needs to be determined is whether or not there was the necessary roe alliance for each claim and the plaintiffs would have to prove that should decide now and you're not claiming this is like a what they call the death now situation where your client be forced to settle because of the potential damages in the case is not one of those cases well it could be it could be your honor because  while the the number here the number of potential plaintiffs is not what we see in some other class action under about me three thousand three hundred dollars plus yes yes your honor but it but it could be because what happens with the district court's decision here which is particularly unclear it really requires a try for cation of the case but what happens here is we're going to have three mini trials on liability on the individual claims the class claims and then maybe wanted to damage phases so it's either a try or for different proceedings so it might result in exactly what your honour's a multi billion dollar and i mean you know it's not a multibillion dollar case i could never could never say  educational malpractise is not recognized at all why there's another question is that this is really a repackaging of that type of coin what's it what's an issue here is very simple the argument is there were misrepresentations made by the school respecting titian asia and respecting its relationship to new york in the graduate film context and that type of claim is typically dismissed on motion here the court decided not to dismiss it on a motion to dismiss we've gone through a tremendous discovery and when one looks at the record you see the district court's error in that the reliance that was testified to by the three named point is completely different so when you look at that there's been substantial error by the district court which is one of the ways that we believe the twenty three dollars of petition can be properly granted i was so also submit to your honor that the novel legal question that we've just talked about is presented by this case and when you look at the mclaughlin and in particular the the dungan v i v ridge case which is a school case you will see that with that reliance requirement a class action is not appropriate and certification was not appropriate here by the district court that my time is up if there are no other questions thank you members of the class don't want to have to individual prove the common issues defendant doesn't want its senior officials to have to testify at one hundred dollars or more trials and it certainly doesn't want to pay counsel to try a hundred or more cases but most importantly the district court does not want to have its docket overburdened by a one hundred or more trials in this case on the same common issues now you would like to turn this appeal into a case about educational malpractise and why this court should take this appeal the shortest answer here is they didn't raise that on class certification below it's waived the longer answer is this is not an educational malpractise claim if you look at the common issues that the court identified  tissue asia intended to induce reliance into asia students and whether n y u failed to impart to tissue ages students that those are not educational malpractise issues and the longest answer is if they thought they had the winning hand on that issue they would stipulate to the class and go win on it below but they haven't done that  the term in that everybody relied on this in this type of setting students go to school for types of reasons so this just on its face set up in such a way that you can possibly have a class  each student goes for different reasons right you have to question each student why did you come to the school what did your all ion write is and i'm missing something i wouldn't suggest you're missing something but the question here is whether a student would have attended n y u tissue if the omitted material information was disclosed so in other words if students knew that this program was an experiment  if they knew that this program didn't have the support of the administration if they knew that this was not financially viable from day one on a class wide basis that's an individual determination that each student makes depending upon their circumstances what country they're in what made a difference to them well judge marino was presented with that very question in his in his discretion he determined that it would be preferable to resolve the common issues on a class wide basis now if if and why you want to argue to the jury that students would have attended if they knew the truth they are permitted to do that and if students are required to come in and say no i wouldn't have attended if i knew the truth like that the three class representatives here and their declarations and supportive of class certification then that is a fairly straightforward process and could marking material or an application that was false or ords is all different types of representations made in different ways students had different experiences at n y u tisch asia they made statements made to them particularly the statements about the education and the whole experience being the same and why you new york and n y u asia those are uniform material misrepresentations but  the where's their material it said this is the same as new york there's a written material that says this is the same as this new york i am paraphrasing but yes it is in our papers it was on the website it was in the brochures it was in letters to the students i believe but that that information is all in the record  the real question here is whether this is an abuse of discretion whether we allow district courts to decide how they're going to run their cases morrow stated the court notes that the relevant question is not whether the class action is the only way to adjudicate the proposed class members claims but whether it's the best available option the court finds it would be sub optimal litigate in potentially hundreds of cases the comment questions at issue in this case this hardly sounds like an abuse of discretion thank you thank you or will reserve decision and will turn to day calendar of the macarthur justice center for the appellant matthew jones your honour's our position this appeal is a narrow one that defendant true big failed to satisfy his burden under the procedure that this court has adopted to set a side a jury verdict based on qualified immunity in kerman in law the court recognized that a jury's verdict as to excessive force necessarily turns on the jury's view as to what a reasonable officer would have perceived in the circumstances respect for the jury verdict and for the plaintiff's th amendment right precludes the court from substituting its view of what a reasonable officer would have perceived for the jury therefore when a defendant seeks to set aside the verdict based on immunity he has the burden to submit the necessary questions to the jury and to establish that the jury viewed the facts as he says it did where the defendant fails to submit the relevant questions to the jury the court must view the fact in the best possible way for the plaintiff so i want to focus the court specifically on the nd teasing in this case because we see that is the narrowest ground for reversal that prevents the court from having to deal with any of the other two issues we raise dealing with the st hazing and with the inconsistency with punitive damages and so let me begin with three premises because i think these will really help focus the court and narrow the issue here st everybody appears to agree that it violates clearly established law to inflict gratuitous force against someone who's already been incapacitated nd defendant true big has never contested that the jury could have concluded based on the evidence before it that mr jones was incapacitated and that it's jury verdict could be based on the fact that a reasonable officer in the circumstances would have known he was incapacitated and a rd defendant does not even argue that his all on the law and nd that kind of perverse consequence of such an argument and then rd i can talk about the specific facts here but st on the law the court in soto considered the question of whether tracey decided before the this case clearly established a violation were officers tasered a man who had just been taste and in that instance not only was he not handcuffed but the court viewed subdued in a much more kind of logical way than is the person handcuffed in that case in fact the individual it was uncontested was starting to rise to his feet in this case it is there was no evidence that at the time of the nd taser mr jones was doing anything but length flat on the floor probably still writhing from the st taste of the language of the circuit the district court noted that in its opinion i think several times that was incorrect at the time of this right before the nd today's after the