we here are day calendar we have a number of motions calendared for each day but only one of which is scheduled for argument scott's miracle gro versus our grief we could hear from counsel on that may please the court sean regan on behalf of the scots company's defendants movements i understand the court has given you side five minutes for argument with the court's permission i'd like to request one minute for rebuttal i mean we usually don't but will allow you to take one minute thank you judge your honour's the court should grant interview tori review here because the issue presented is important to numerous cases it satisfies the elements of twelve ninety two b and i very likely to continue to evade traditional post judgment review the district court held below the statutory damages aren't available remedy in a federal court class action brought under three sections three forty nine and three fifty of the l however the court erred in three important ways the court heard and phrasing the threshold question as whether those statutes on their face prohibit recovery of statutory damages in a class action the court erred in finding it was constrained by shady grove to conclude that such damages are available in federal court and the court erred in applying the second step of the theory shady grove analysis insofar as it found damages available because the state legislature had as the court said relied on c p l are no one b to make them unavailable the district court properly found this issue satisfies the elements of twelve ninety to be the court should take this appeal now for several reasons it presents the court with a fully ripe and pure question of law as the district court found with respect to this particular case resolution will substantially affect the methods of proof and the amount of damages but beyond this case this issue has significant presidential value it's an issue that is recurring not just with respect to three forty nine and three fifty but with respect to general the application of shady grove if it continues to evade review the reason for that is the hydraulic pressure that are implicated by the availability of statutory damages in a class action there's no benefit to waiting for a more traditional post judgment review and there is considerable downside parties will continue to deal with those kind of pressures and the result is of course recognized has been to lead to parties entering into settlements that are  potential actual liability and risk courts within the circuit lack clarity and have struggled candidly with the scope and application of shady grove i think that's manifested where it's districts in the circuits but on the issue this particular issue the narrow issue that we have raised hasn't been litigated in large part because most of the time these cases have settled prior to as part of a class certification or right after class certification and that's it's become as we've said there are and as as not just we have said but other data and research have shown the federal courts have become a magnet for these kind of cases and so this issue hasn't had a chance to rise up it's in that sense this is that the fact that the issue is generally resolved in by other means in the court doesn't mean that we should be looking for recent take it well what's your other argument for why we should you this says a matter that needs to be addressed interlocutor orly well the issues the generally the circuit has the proper application of shady grove and shady grove really has been dramatically misconstrued she did and that is not enough of a recent i mean there are a whole host of legal issues we've never had an up opportunity to address we don't go looking for it what what is it about you  properly founded risk assessment that's it's in the interest of the court to address that issue if one reserve i would please thank you good morning your honor may please accord i'm scott bursar for the respondent michael r curie i'd like to began by answering judge livingston's question is is there a split in the district courts on this question the answer of course is there is not  we cited in our opposition five cases five district court cases from the southern district of new york and other district courts within the second circuit and all five have have answered this exact question in exactly the same way which is all five have found that post shady grove statutory damages are and available ram ity and class actions under new york's three forty nine and three fifty which which would otherwise restrictive ale ability of that remedy the other reason i think which is was clear even before shady grove is that under rule twenty three class or if occasion can neither and large nor a bridge the substantive rights of the litigants and so if a remedy is available to an individual litigant in an individual lawsuit that same remedy under rule twenty three and under the rules rules enabling act must be available in a class action that is why the district courts have not struggled with mel s harris in two thousand and fifteen and in gold versus new york life in two thousand and thirteen and we cite both of those cases in our papers now to be fair this court wasn't squarely presented with the you know the issue the way that the scotts company was trying to teach up on this appeal but in both of those cases this court and the litigants acknowledged what is self evident under shady grove and under the very text of the of the g p l which is that the g p l provides for a statutory remedy and post shady grove that remedy is available in a suit so i do not think that it is an issue that has evaded appellate review and i also don't think it's an issue likely to evade appellate review i think the reality is that very few class actions are litigated to judgment period well i don't think that's true your honor because in many of the cases class sort of cation is denied and that's why your honour's never see it or in many of the cases the plaintiffs lose so hydraulic pressure or not  think these cases just ordinarily don't get litigated to judgment because they're so they are so difficult courts have crystal clear guidance on what the rule is here and that's why every district court to address the issue has gone the same way and so when you look at that under under the factors of twelve ninety two one thing that the court would have to find to take this is that there is a substantial ground for a difference of opinion on on how the issue should be resolved and that finding cannot be made here when five times out of five the district courts have gone the same way and two times out of two this court has has acknowledged and ruled that that those rulings are correct one other element under twelve ninety two that's missing here is that the the issue is not a controlling one in this case because it will not resolve the case it will not narrow the case it will not materially advance the ability to resolve the case on a shorter timeframe this case was was set for a final pretrial conference in september interlocked her appeal no matter what ruling this court made the case would still have to proceed to trial on the same evidence so there's it's not a controlling question it will not materially advance the case and there is no substantial ground for difference of opinion and for means it will continue to escape and evade review sikes as the district court found sykes and gold did not address this issue this circuit has not had an opportunity to grapple with this issue with this issue of the application of shady grove with respect to statutory damages this isn't just a very isolated issue we're talking about the general business law of new york a statute that has become very attractive and has led to a number of has become a statute that plainest firms are continuing he knows it's wrong they're vexed by this issue they know it's the wrong result the reasons for that are set forth in this petition this is an opportunity to address this issue for continues to go on and continues to