fairness act consider this class action case i contest as a plaintiff's attorney ocus focusing the last twenty years or so of my career on product liability and consumer protection law this is a fairly unique position requirements for the tech defendants from quote equitable state treatment and to put an end to certain abuse of state practices by plaintiff's counsel but catholic is the law and we are here because  jurists can and engineering has turned kefir jurisdiction on its head by st using kaffir to remove a prior action alleging identical theories of liability involving the same three oil filters at issue here assertin to the federal court in fact case in california that kept his jersey will require most were satisfied and in fact stated to the court given the and i'm quoting given the potentially large class and the types of compensatory equitable relief sought by plaintiff o'neill in that case and proposed class members the amount of controversy clearly the five million dollars jurisdictional minimum therefore can and has met its burden of showing a reasonable probability that the amount of controversy satisfies federal jurisdiction that was in removing a case from a state court in a defendant's principal place of principle a place of business county in california but worse than defendant now coming to this court and attempting to have the jurisdiction over this case that best it from the court taking the contrary position is below by failing to heed this court's guidance ras and rascasse can then the district court but managed to make this case about article three standing and other issues that simply do not apply here and certainly do not apply at it told me one challenge to jurisdiction it was in that confusion that the relevant issues of the relevant issues that the district court reached its wrong conclusion but to understand how the court went wrong is useful to look at how it got there and ruling on defendant's st challenge to capture jurisdiction and tara in a motion to dismiss product as the original complaint filed at the action although the district court did acknowledge t it previously removed a similar class action the court nevertheless identified several pleading deficiencies that prevented the court from being satisfied the catholic church fictional acquirements could be met those were namely th proposed class definition was not limited to a particular time so that the court could not extract late how many filters might be an issue that the complaints did not estimate or identify the cost of each filter as a complaint did not provide a sense of the frequency of the type of damages that the complaint did not provide a sense of the number of oil filters sold in oregon for purposes of calculating statutory damages and complaint provided no information about the number of the affected plaintiff filed a st amended complaint pleading specific factual allegations rooted primarily in either information submitted to the court by defendant chief financial officer or information that was available on defendant and website regarding the filters at issue in paragraph seventy three through ninety nine of the st amended completely devoted to been sold from two thousand and fourteen to the present all three model filters had been plaintiffs civically allege the defendant sold two hundred and twenty thousand one million tool for oil filters annually during that period at a retail price of fifteen dollars ninety nine cents that was information provided in a submission to the court in the form of a declaration by defend in the st amended complaint and in its briefing to the district court this information was was able to be used to establish what the value of filters at issue in this case were so we have two hundred and twenty thousand and you all sales in and the and it can't two of four there were two possible time periods to extrapolate those over one would be from two thousand and fourteen until the recall is issued in tw lies here d there are two lines of cases out there to be sure but this is not the case wires resolution of that because one can indeed in assessing which line of case or whether it are those lines of cases control one can't ignore the fact that we are here today twelve b one challenge to federal jurisdiction challenge to cafeteria stage o'neill is a case that dealt with article three standing up a failure of these oil filters a catastrophic failure in the sense that the oil filter came apart boils bute out onto the tire in the roadway while the vehicle while a motorcycle is an operation thankfully all three were were able to to bring their motorcycles to a stop about something more catastrophic happening but they clearly suffer damage from the defect alleged and have a claim that's traditionally written redress so there is no dispute here that the names plaintiffs have article three standing that's why on the oh that's why wallace why real don't apply here and one does not have to get into the inquiry of are those cases still a correct description of the law or not because they simply don't apply our plaintiffs do have article three standing now that this district court definitely made this case about  three standing with regard to absent class members but that is was not the appropriate and malices for this case as this court has clearly indicated and rascasse so one need not reach whether those are still good law or should be good law i'll be happy to address bad and in my final section but my answer your question directly that is why those cases do not apply in this case in any of th that's not something that can be refuted at this stage point tips have clearly alleged that all three filters suffered the a from the same defect and add error at this stage of course all the allegations  the complaint have to be afforded deference to can't be challenged factually and in fact the district court went out of its way to make clear that it was dealing with this issue as a facial challenge to cavite jurisdiction not as a factual challenge to capture jurisdiction so the only question before this court is whether there is a legal possibility that can and will be liable for the and damage if there is any possibility of doing so at all then the district court's decision must be reversed that's why this is a far simpler case than the district court or can and make it out to be in the proper analysis the st i've already alluded to do the named point to have article three standing and the answer is clearly yes the named plaintiffs have are called three standing each of the plaintiffs not only alleges a defect they allege manifested in their cases and caused damages the only question after that is whether there is some way to calculate given the name plaintiff's allegations that the class could be five million and damages and the merest possibility do as unlikely as it may be as long as calculation can be made that without resort to guess defective or are defective in and some of them fail but they're the real thing the real allegation is that people wouldn't have purchased the filters if they this case although the district court repeatedly characterized it as a product liability case i guess all along the lines of of some of the cases looted to europe this is a concern this is a product liability case but it's a consumer fraud case this is a consumer protection case and marketed these oil filters as being particularly well suited to high performance high stress conditions that every single oil filter up to three models that was sold during this time period was defective not that it was potentially defective that it was defective it is not necessary that an oil filter that defect applies to every oil filter at every point of purchase when a customer paid one thousand five hundred and ninety nine for that for that oil filter they were doing so receiving a product that was not as it was marketed to be so every class member putative class member here is a look is alleged to have suffered damage at that point of purchase because they were paying more for that filter than they would have paid for it had they known that it was sus to to the failure mode that's not even at issue given that defendant issued a recall for that can't to it for identifying that the fact now we don't believe they went far enough plaintiffs allege that they did not include all filters that should have nor for the time period that they should but the issue of whether this defect exists is not is not even a issue and for that reason and referring to the two lines of cases this is clearly a case that is controlled by   if one were to get to the article three standing it is also a case that was is controlled by this court's decision that came out shortly after the opening briefing in this and this appeal in  it was correct because it follows minnesota and th circuit law and to justice co this is question about the two what kind of case does this follow this is a case like that it's very important and i think the district court correctly focused on the issue of what products were issue here what kind of product is this this is not a fixture in the house or a product that is like a pharmaceutical product that has a defect in it that immediately causes harm arm upon ingestion and therefore it doesn't work is warranted under every circumstance this is a product that contained a defect but was not necessarily defective could just as shepherds point this is a product that if the purchaser bought it and it didn't fail it worked as warranted it's an oil a motorcycle oil filter that supposed to work for six months or five thousand miles and if the consumer purchases it and uses it and it didn't fail which happened according to the evidence ninety nine nine percent of the time it worked as warranted there was no claim if there is no claim there is no standing and the issue here and what the district court properly focused on is it's not just the plaintiffs whip claims and at least five million dollars in damages you need to have those plaintiffs need to have standing as well and that's what's missing here and that's what the district court properly focused on there was no chasing the rabbit either but i don't know really makes that much difference but i thought i wasn't i thought i heard an allegation that there'd been recalls on these filters he said that they  then want to recall it because it early on in the process there were more failures than they were used to seeing but at the end of the day it turned out that point one percent of the filters fail they had knowledge that they were subject least subject to failure in some circumstances and as you've mentioned we're also going to be subject to recall don't you think that would be  jurisdiction was what's wrong with that position sure and that was that was presented to the district court in the problem with that position is that the plaintiffs haven't really alleged that benefit of the party claim it's a product liability claim then that claims under three different state statutes which don't apply to an if the nationwide class so the numbers that council is throwing around our nation why indeed worldwide sales numbers the benefit of the bargain argument that they are trying to make now can only be made under the story state statute claims or situation where you have a product that performs as warranted there are no facts alleged in plaintiff's complaint that these products were cost more than other products with similar characteristics or that perform similarly there is that that allegation is it's not in their complaint that they get to five million dollars based on a purchase of the products in those three states  where they don't get to to this to that cafeterias fiction threshold by benefit of the bargain where you have a product like this and again i think it's really important where the facts that at the court consider in the court can consider facts on whether jurisdiction applies and those facts are that these products perform as warranted ninety nine point nine percent of the time and there's no allegation that their products sold in this market for the same or similar price perform better than that so whether something was prone to failure as they allege in their complaint is not the issue that's that's where you get to the the needle line of cases where where something could fail if it doesn't fail you don't have standing to that's a permanent fixture in in a building that that diminishes the value though they could eventually it's going to fail here you've got a product that you use for a certain amount of time and then you can replace it and you put it by another way you put it on if you have a consumer who buys the oil filter puts it on their motorcycle rides a motorcycle for five thousand miles for six months and say on the one that i bought used for six months and threw away i have a claim d on that because that i should i would have paid as much it worked exactly as are supposed to but george cases it's different because the the two big piping building stays there and it's eventually going to have to be replaced because it's going to fail or it's going to be something that that diminishes the value of what it placed into these filters don't work that you know but i i'm not sure if cern in georgia really sad like i said i agree or that they're not exactly alike but i believe that they are certainly more analogous to each other th i think i think it does your honor i think or at least it has to be a texture that will have to be i think those things sort of quake in my mind that if something is a fixture and it has a defect in it then you've got something that you know when you sell your house you have to disclose well i've got i think from you know this particular company that had a recall it hasn't failed on that caused me to not be able to sell that car for as much as it the gas take it been modified because it was a fixture in the car if i had an oil filter that had been recalled and i use that oil filter and then put a new one on that was not the slow along these lines and the discovery was made that a particular model of tire had a higher rate of failure on the highway and then was acceptable or compared to other manufacturers when the same rule applied there another word as long as you're tired of the law on the freeway you couldn't couldn't join a class along the lines of this case just does the same rule applies i think i think jeff just were higher than we had seen before but then over over time that even doubt turned out to be only a one point one percent failure but to your point i think it's it depends it depends on what the failure rate is the consumer i don't think you would have a class action for for consumers you know you would have standing if you were consumer to use the tire and then disposed of the tire and change tires and nothing ever happened i don't think you could say well i would have bought i would have paid another amount of money for those tires if you still have the tires on your car and you want to have those changed out that's what the recall is for and that's what we did here  provided compensation for plaintiffs for the consumers who purchased the filters that wanted them to respond return same thing with your tire hypothetical where if you had tires on your car those tires have been recalled you could choose to return them or you could use them if you use them and they can and the work is warranted i would submit you do not have standing to bring a claim at that point you wouldn't be a plaintiff in a class action lawsuit that's that's the whole point of cathy and why you need to have standing the idea behind class actions is that you have people who are actually injured and you what the amount of the injury is difficult to do you want to and a case by case basis it's easy it's much more efficient to do it on a on a group class basis here you've got very different injuries by these three plaintiffs with different can work recalls so that's just shows that these some products do fail just as a matter of course and if that's just to happen with every product and so here you've got a situation where you've got a three plaintiffs with very disparate are trying to say well we should have stand we feel that bring a class when there's no allegations that any other class members incurred injury and we're not compensated for that and so and i see my time has run it but again the that's their allegation in that district court correctly decided that that wasn't enough to show standing and they had two chances to show it and they failed both times and so we believe the district court's decision a proposition that what we're looking at is what is the total what is total at stake it doesn't require computation of damages it doesn't require a finding of a classification as a chance of getting stage what's at stake in all those cases the total number of chart the total number of sales the total number were what was tied to cap jurisdiction not what are the actual damages by following rascasse you don't get to this issue that they want to put issue and the final thing in my it's like and says in response to the entire example if you carry what defendant wants to do to its full extent then you could have the manufacturer who produces a product that fails eighty percent of the time and it could tell i was perfectly percent of the time the twenty percent of people who use it for its life and it doesn't fail you're saying they have no damaging consumer protection no damage at all because they may have paid a premium over competitors products are complete misrepresentations regarding the product it would deny them it would have to have those kinds heard and that's why conducting this analysis at the twelve b one stage it is unprecedented there is no case cited by defended and which the analysis they're asking this court to apply was applied at the twelve b one stage not in any of those cases all right thank you very much