liability under these circumstances traditional agency law should not be overridden would you agree that your client is potentially responsible for the smaller group of fa if they could do something right would leave a court they'd have to pay and leave the port at this late date you know many and that would raise another set it so vicious absolutely correct and our position is that the trial court statutory interpretation of  today was simply wrong she did not even mention our adequacy argument in her certification or in her view the vicarious liability whether or not  the agent was irrelevant prince of vicarious liability were irrelevant the only thing that matter apparently was the fact that had this a broadcaster at the hague but that's not sufficient defendant did not i'm a little confused by it the answer injustice to lords question is to whether or not you agree that the marketing to the to the group that was  essentially a large print company has no use for that that the advertisement would serve no benefit it wasn't part of our targeted audience it was outsider express instructions and that's part of that in addition we're all saying that we didn't control the method and disputed that we didn't have the right to access the broadcasters records as undisputed that we didn't control them there so therefore as a matter of law certification should be reversed and remanded and it and alternative level of deference in the courts and so far mixed on this i don't see first of all is a correct we don't have a court that has binding authority on us that has resolved the issue of whether the clear consensus i'll just say that in terms i think it's very very clear depending upon how the writers rule on the pending motion i think that it's pretty overwhelming in terms of where the courts are head my question and leading into congress made a decision public policy decision to stop unwanted faxes you know waking people up in the middle of the night with a fax machine would ring because the computer didn't know it was two am in whatever city the fact she was in ok and isn't it possible that congress could have made a decision and sort of follow through by the scene of regulations that if saul vehemently wanted to stop these things cite twenty six f c c r five zero or three the f c c sought comment in may of two thousand and eleven and it says quote we seek comment on the circumstances under which a person or entity is laughable for telemarketing violations committed by dealers or other parties that act on the persons for entities behalf in particular we ask for comments regarding the following also just pertains to prove recorded messages which is different than a fair and the facts the statute is pretty darn clear it only opposes liability on the sender it doesn't oppose liability i behalf or on the a agents of the advertising are you contesting in this case in any way so anything in the record that we could put our hand if we wanted to along the line of that this is not so because the five hundred dollars penalty did you raise it is his defense in this record i telling you know that he did this when say this can't be a class action because this is an individual right off the recipient and therefore they can't hand everybody anything specifically where that issue was raised yes now it's important to keep in mind that in evaluating the criteria the class action device is merely a procedural remedy and that it doesn't affect the substantive rights of any of the parties so if the court the nice certification each of the members of the putative class retained their individual rights to file their own individual claimant quite five hundred dollars even though they've been damaged by only believe that back to end the seventh circuit rule that if that painting had been had been meant to influence testimony certification should be denied that that would undermine the integrity do what it how you could improve the seven circuits opinion is at if that type of kind could be reasonably construed to be to reasonably perceived as undermining the integrity of the judicial process or the class certification process that should be grounds for denying certification this is just a procedural remedy the seven circuits they say if it was meant to influence testimony that's a very heart that that required us thomas in the mind of the person that was that would made that offer to the painting but i think that if that's the standard that the seven circuit articulated could be improved upon by by this court in addition i was if i may say one more thing about that it could also be improved in this respect that an ethical violation that directly produces a wide financial rewards for class counsel should be specially scrutinized if you look at the cases involving ethical violations most of them the council type are covered anything same shoes everybody else somebody else got the same facts the guy didn't have permission from anybody or all the legal and he says well i'm an early correspondence and mark since he said he hand wrote i would like to only target small engine repair shops or something like that please tell me how it is and then a week later they sent seventeen hundred faxes and then eight months later they sent ten thousand more and there was he didn't say anything there was no ok here's what we're doing i'm only hiring you to do this don't send  his his his goal is that he wants to send to the small businesses that repeats he's going to get the work he doesn't he doesn't say here's a list of small businesses the center through these are my customers or anything like that he just says i would like to target small engine it's all in writing of stoppel signed and then the folks in romania sent out four thousand faxes to hamburger stance and who knows who else where do you draw the line in terms of the advertisers go ultimately responsible for the acts of these the spammer who is acting outside scope of the agency that's a good question your honor i don't think that line is being drawn here  according to the defendant's definition that the question is can the plaintiff represent all those people who got these illegal faxes saying he's liable for sending them to and that should be decided on the merits at best that's for the point of the matter is if you've got a person who forms a subclass b they can't represent the people who subclass pay even though we're dealing with junk taxes in general so the question becomes tell me only to send faxes to our small engine manufacturers and the effects send them to people other small engine manufacturers then why would the with the advertiser be a limited liability expanding ok doesn't say ok if i've read their articles and now tell me a case give me the factual scenario where two seventeen actually expands liability as opposed to limits incorporate ages off the user to incorporate all the time and so even if the only way you're going to hold an independent contractor liable for the principle of an independent contractor while it is one that independent contractor is actually within the scope of his agency or is employment then the question becomes what happens when he has outside of it right and the answer some of the courts have given he is no liability and i don't think anybody said that he told them anything about the ten thousand faxes and december that when he hired them six months later that he said ok this time again find only ten thousand small engine repair shop of things that make sense to say the person who stuff is being advertised is liable to make sure that they're only sent legally because otherwise you're hire somebody in romania and you say i'm not going to exercise any control except i'm going to tell my only  go to people with blue eyes and then when they don't it's the people in romania's fault and that's that's what's best argument that the front that's make it and so i don't think that the defendant has showed that the judge abuse asked whether they had challenged whether you could have a class action for these claims they did not that's not the argument if it had been we would have written a whole bunch of things there's a u s supreme court case called nim's that's that specifically says that specifically rejects the senator's legislative history where he said he hopes states will make it as easy as possible that they force the statute including in small claims court that's what's really going to head on saying you can't do it as a class action nim's rejects reliance on that and specifically says there's class actions pending in federal courts and it's not going and reliable  says you can do this this kind of claim on a class action basis and the ecstasy of counsel thing first of all there's never been any allegation of any misconduct by anybody of my not they allege there was misconduct in this case they say with this hard drive they don't know legit with the five thousand dollars check in this case it's in fact we filed our brief we tried to tell the court hears the whole story and they moved to strike it in the court granted the motion to strike including urban's that position was stricken from the record and their motion and now mr same words are going today that what the guy said in his deposition about what he probably got the check that was never an issue in this case and the reason i was issue in this case is the same defense firm was representing the defendant sides crabgrass and they made an argument about the five thousand dollars check and judge finale rejected the argument and the night their requests to decertify the class and so when they were arguing the same things and cook county they didn't argue all the stuff they'd already lost because they knew we'd just say well here's the judge or he ruled out oh now it's coming up again because the courts you know the same defense firm represents  defendants and lots of these cases including five cases that have applied the polls are standard that they want to apply and they've all five of the conduct all this stuff all the evidence big piles and they said no these guys are  loyalty to the class they just want the case to go away they know they're not trying to get anything for the class they want to make the class lawyers go away so nobody has a class we've been doing these cases since two thousand and three and so authority and i believe they know it that they're not going to appoint somebody class council but think the person is a bad person and they did bad things judge government and they have to your case implied when he said he can if there's misconduct he can only the night adequacy for the most egregious misconduct i think the seventh circuit read that is him saying his hands are tied even though there's misconduct i can't the reject these guys is an adequate unless it's the most egregious misconduct i've ever seen and the seventh circuit said that's not the standard because if you have a serious doubt about their loyalty don't apply don't appoint them to represent the class and not remain in the government said we are adequate to judge quit at this time she'd seen us in action on other cases and when they say they brought up the misconduct that judge nellie had already looked at she rejected that that these guys are adequate and she wrote wrote an opinion there are judges who defendant really hasn't shown that she had used her discretion in rejecting that misconduct arguments and saying we are adequate and they haven't shown that there's a reason for this court to adopt the new standard or anything because the old standard works and judges there's no evidence that it doesn't first with respect to the first issue regarding agency the the record is very clear ms abrams testified at her deposition that with respect to the adequacy of counsel over asking the court to set a standard there is no standard in illinois with respect to when a cast misconduct should be grounds for the the circuit said we're stressed by a very well argument one of the stuff the circuit judges that you're kind of discussing i think this is one step above a burglar that was the most pressed but first second but they haven't done anything about it and i