the district court decertify the class based on its finding that the defendant had a right to conduct individual inquiries into whether each member of a class expected to be recorded or imply only consented to being recorded and these individual and the court found these individual inquiries would predominate over questions of law in fact common to the class members but that finding is inconsistent with the california supreme court's holding in carney versus solomon smith barney are too deeply into the class action she held that your client didn't have the ante with the harm that he complained about the cost of i do just was uncovered by the stage and i believe the the decision that apply from the very get i think that the first thought that was an incorrect finding the injury in challenge and i don't feel well the injury the injury that the client sustained is the injury is the violation of privacy that occurs at the minute that he's recorded without  i think he was trying to address the questions that not the harm is covered by the statute but that but the legal hard that is covered by the statute is the invasion of privacy that occurs when he was recorded without being without his permission last pardon me the law and you're not appealing about standing constitutional standing at the time you filed this case well a district court finding her written findings will remain unchallenged at the time he filed this case and and through to today the he had standing because his injury occurred the moment that he was recorded and the court the court's finding that he didn't have that he wasn't injured because he made these comments about well geez i could have settled my other case sooner really ugh i don't go to the issue of whether he had standing in this case as a named plaintiff and he did he had standing because he was because he was injured  because i don't believe it is your honor i think i think it is too and the reason is that the cases you're trying to cite to us are not cases where the supreme court or anybody else determined that the individual name plaintive had not suffered an injury that gives rise to a legal claim they get involved cases where the person has died or time has passed and he's lapsed out so there was a viable claimant one point and for other reasons that person no longer is entitle to collect money that's not the problem that your client has your client has an adjudication that it was not injured and if a party is not that was extended to pace is in which we have no class because we have no class representative i mean i don't know why somebody else wasn't brought in but the only person who's standing there now is somebody whose flame has been found not to be valid i think somebody certainly somebody can be brought in but i think that the issue here was the denial of the class certification the correct one that i found was a few that was we're not sure who can stand up and make that claim to well  i believe your honour's that that that the the finding that meant that the any i didn't have standing was limited to his individual to the individual can remember when he went to trial they were only trying this individual claim can you have a class without a class representative i think that a class representative can be i think that the class exists independent of the named plaintiff and i think that's what the susa the  independent life so even if the the at trial on the individual claims of any i and let's also remember they only tried one claim there was forty four some claims and there was never any dismissal formal dismissal of the other any i claims the calls so i think that at least those claims are lying if you can avoid mootness by adding a new i don't have any problem with that by bringing in the new plaintive but this is a little bit different because the district court's there given the the claimed injury and the failure to prevail on the merits that it from the outset i understand her her finding to be from the outset of this case your client had  standing i don't first off i don't think that that exactly was the finding but at the time the class was decertified that finding had not been made and so it was alive and what the what the  judgment ruling on the merits of the there was a summary judgment ruling and in that ruling the court found that as a matter of law that the advise all that people may be that the calls may be monitored was that was the issue that was before the court at that time so that claim was the claim was live there had been no adjudication of the time of the decertification that any ice claim was was was invalid and so that happen california supreme court case held that the district courts that in the absence of an advisement any advisement that they could not anticipate that  the caller's anticipation that maybe you know maybe they were being recorded was not could not be presumed and i think this holding defeats the rationale that was used by the district court in this case where it kind of suggested that will because  n had used this beep tone thing for some years before hand some of their long term clients may have you know recognize they were recorded that was rejected by carney i want to point out that in the respondents brief they didn't address the carney case at all nor did the two cases that the district court relied most heavily on taurus and right but in all of the cases that have looked at now analyzed carny and looked at the predominant issue regarding consent and this is the  in all of those cases the courts found that consent is a common issue if we have a uniform recording that everybody hears and i think this is just really critical where every class member as in this case heard the same recording the same message and the message did not say they were being recorded that creates a uniform event that does not require resort to individualize proof and that's an industry undisputed the thought of that that it was uniform so when all the class members hear the same message all legal issues are common to the entire class so in this case the the common facts undisputed are that everybody heard the same message and message didn't say they were recorded and all the course all the calls were recorded so given that everybody is in a uniform situation all of the legal issues which might arise for example was the disclosure about monitoring sufficient which the district court already ruled as a matter of why wasn't or who's got the burden on consent or can consent be implied all of those issues are going to be common to every single person who is in the class during that class period briefly i'd just like to say also that in the district courts autor order of august eighth which granted plaintiffs motion for reconsideration certify the class the kind of the middle ruling the court found in that ruling that plenty of met all of the requirements for class certification under rule twenty three when the court subsequently reversed and decertified the only issue that the court decertified on was the predominance so in the event this court reverses the  sure it's a separate appeal there's a lot to talk about here but the main point that i'd like to make is that under the graham supreme court case the court directed that a broad pragmatic view be taken of what  constitutes a successful party under rule ten twenty one point five and so in the district court she focused primarily she focused her decision to deny ten twenty one point five fees by saying  that focusing on the fact that the plaintiff didn't obtain monetary relief but and that was not that was not the primary relief the court found but under maria p versus rials which is also a california supreme court case they said that the fees and award fees is not limited to the primary relief under the such short language in ten twenty one point five it's a it's junk of statute it can be for vindication of an important right or obtaining the primary relief sought and i think it's it's important to note that in this case really the model there was two things that plaintiffs thought one was monetary statutory damages and one was to change the behavior so that the recording right but one has nothing to do with you but certainly during that period of time if you could have sent a letter that he you know there's a problem with your phone your with your messy right well under the kates case they talk about it all along from the very beginning when they fix their recordings to you and they did you well it was after the amended the complaint of the thing as if they had fixed that recording early on at the beginning when the complaint was alleging a six thirty two violation it would have resolve that problem too they would have cut off the class the class period right then the moment they change that and they didn't they continued to vigorously argue that that's what their summary judgment was about and even after they lost the issue in summary judgment they continued to argue it straight through to trial so under the case case first off it says that this is a judicially created rule that should not be used to shield didn't do as a shield to deny legitimate fees it's meant to deter attorneys from filing frivolous suits and it certainly wasn't frivolous because a very important privacy right the california has held to be a very important right has been vindicated here right so that they vigorously defended this they waited seventeen months and then even after they changed it they didn't tell the before the court that they had changed it so i mean the notion that they would have just said oh yeah sure will change it is was was i think it was incorrect and even even if you want to give some credence to that  the the kates case says that the shouldn't be used to deny fees just on a ten twenty one point five feet request discretion is is pretty limited and the courts have said that you know the fish should be awarded unless it would be unjust to do so and that would i like to come back real quick to address one point is that in this case monetary damages really were incidental to the other relief which was correction of the statutory violation that it has this is about the money well it's about money but if we look at ten twenty one point five in the feed it would be a statutory damages in the five thousand dollars up to five thousand dollars a call right but those big bucks wouldn't have gone to the named plaintiff in that and that's when you look at ten twenty one point five you don't look at what the overall potential recovery could be and it was very likely that this class would have been narrowed anyway to first callers which would have you know greatly reduced that hopefully soon to be a partner we also have in the audience i should point out one of the in house counsel from hanssen aggregates as the court is noted we're dealing with two appeals here today one dealing with the feel of a denial of class sort of cation and one challenging the district court's denial of attorneys fees i would like to start with the certification appeal and then move on to the denial the tourney's fee on the class certification issue as this court has noted the appellant n e i in assistance lost they were found not to have standing to bring this claim in the first instance right out of the box they were also found to have not met their burden of proof with regard to the issue of injury under the statute and the issue of consent they have not challenge those rulings by the district court personally i contend those rulings were absolutely correct but they have not raised that in this appeal in footnote ten of their opening brief on page sixteen i believe it is they specifically say we are not challenging the judgment or the rulings by the district court other but i'm thirty two pages thirty two to thirty five of our brief we went through cases multiple cases from this circuit the seventh circuit the eleventh circuit in the federal circuit all of which say when you lose on the merits when you lose on the merits which n e i has done you can't prosecute the issue of the certification becomes moot and i mean that's the the prisoner who is served his time so parole isn't an issue any more correct he's released from prison that's a very different situation from losing on the merits this man has been deprived of his liberty and now he's challenging that and he happens to be released from prison that's very different from losing on the merits it means the end result is explained in a different way but the end result remains that garrity cannot benefit from whatever happens in th litigated i think it was a she had had satisfied the residency requirement that she was trying to challenge and the court in both of those cases said well yeah the individual plaintiffs cannot gain anymore but the case hasn't gone away in this case any i cannot benefit any more for a different reason but why should that different reason affect the rights of other people in the  e class because if you think of it they never had the claim in the first place they never had you want to talk about garrity they were never deprived of their liberty right i mean they were never so based on the district court ruling in a position to ever assert this they shouldn't have let me ask you this is it possible that when they filed the case and they raised the claim under the statute that their statutory claim and they just alleging that their privacy there was failing to comply with the statute or going there for there was a violation of their right to privacy and it's why isn't that enough to  as the court knows when you get to an appeal you consider the entire record below even if you're looking at preliminary matters and i understand that you could say they may have had it at the beginning but standing injury is an issue  here you needed to develop a record that record was developed he testified as as the judge noted he testified in this case originally the no i never suffered any injury there's no injury whatsoever  down and he came up and he said well you know what actually had you had i know had you told me i wouldn't of i wouldn't a major file a lawsuit against me and proceed through all this prior litigation and that's a good you didn't eliminate all statutory damage kinds of claims like this didn't it requires a concrete injury correct i'm not saying i'm not saying that this is ruling bars every one could argue that invasion of privacy under the statute is sufficiently concrete to me so i don't know that that's the case or not i think that i understand what your court is saying in terms of the could be that just the invasion of privacy here the court found there was no and it did that as a factual finding which is not being challenged and i think it's important to understand why the court did that i mean this is a situation where you are in a unique industry most people don't order those huge trucks a concrete you you know the idea i doubt many of us in this room have maybe y'all have by i have not but there is a custom and practice in this industry that everybody knows everybody knows you record those calls because you got to get it right and it doesn't take a lot of this all came out in trial these were the facts these were the testimony you got to make sure you get it right because the last thing you want to do is pour a foundation with all this concrete and find out you run to use the wrong mix and all the sudden that ten storey building you built on top of it starts moving i mean everybody knows you record these that was the testimony that was the evidence the court accepted it everybody in the industry knows it and they actually call us to say hey what exactly did we order we've got to make sure we get it right those were the findings here so i'm not saying you can never have an invasion of privacy by recording without giving some formal notice but the facts in this situation with respect to any ice specifically after hearing this case have her hearing the evidence taking all the testimony looking at the documents this court determined they don't have standing they were not injured they don't have a concrete harm and not having challenge that i'm trying to sort out you are standing there standing i heard you say i thought i heard you say that there actually may have been standing at the outset but order to standing in this context a term that is based on injury whether somebody has suffered an injury is an issue of fact at the beginning of the case i have to develop the facts to show that it took a while here to develop all those facts to show that he did not have standing and the district court the flipside of that is for them all they have to do is make plausible allegations in their complaint to get to get in the door for purposes correct and if people if the other side begins to question stand say for example of summary judgment then they have to put in a little bit more show that they suffered injury and if there's still an issue about standing we get to trial  they you know they got established and that's my point i mean you motions to dismiss i mean are a little more difficult there's a different standard all you have to do is a legit i mean in a summary judgment there's a tribal issue of fact thing ok now we've gone through trial the fact that we established a trial means she didn't have it or if you need any i didn't have it from day one and i believe that enough itself is such a highly distinguishable fact that's what his liberty tonight i mean there's nothing more in my mind that is the worst thing that could have happened to a person is have their liberty improperly denied which is what he's talking about ok now he's been released but  harm was there it was not an issue of him not having standing he was harmed it's just now he's out of prison and your honor i mean dutch clifton i agree with you we hope he will never have to go back to prison so we'll never have to go through that again but the bottom line is standing at the outset is important one of the things that was also raised here that i would like to touch on briefly with regard to the issue of class certification if i can is they raise the kearny decision and there was this suggestion that kearney decided the type of notice you must have i go back to the general proposition that a case cannot stand for a proposition not addressed kearney was a choice of law case kearney did not decide what type of notice must be given it was a choice of law case and i would actually say that kearney supports us because what kearney eventually said is look you can imply that somebody consented based on the fact they were given notice but what kearney never said is that you must always give that notice and this court has actually issued rulings in which they have said you don't have to right there is the case in which somebody signed terms and conditions that said we record your calls and that was deemed sufficient so it really an issue of fact and that's what business judge judge bush on the district court judge found and when she looked at all those facts she determined that they were individual and they the individuals predomina certification i know they talked about the first call class we dealt with that little in our papers i'll let you read the record they did not raise that bill all night sorry i mean it and they waived it anyway because they waved at the day of trial they waived everything other than the last call not the first call so unless the court has any questions looking at my time will move on to the attorney's  issue i think it's important again to note that the district court denied any ice request for attorneys fees for four separate and distinct reasons not one for all i or hansen has to do to prevail on the appeal of the attorneys fees award is convince this court that she was right or that she did not abuse her discretion on one is long as she didn't abuse her discretion on just one of those the judgment or the ward should be the sooner the order should be affirmed they on the other i think three to agree with take all of my bulletproof but i think the fact is that i mean we talked about a little bit about the primary remedy i mean you know this this whole thing came up because if you think about it the case that sets all that up is the tip is responsible for the tipton case right because this court is the court that went to the u s or the california supreme court and said what do you need to do to recover on a catalyst theory and the california supreme court told this court what is required and that is that i mean you have to establish the lawsuit was a catalyst motivating the defendants were by the primary relief sought that's what they said the primary relief side here was money i am just sorry i mean you're talking about a billion dollars for a class and up to the day of trial you're talking about two hundred twenty thousand dollars for the name  a district corps who has lived with this case for years gone through multiple medic complaints motions to dismiss motions for summary judgment motions for class certifications they have listen to all of that and in the end with all that knowledge and understanding and facts she said this case was never about anything other than the money and that is the truth and because of that and because of the law for the catalyst theory that in and of itself should be enough to basically affirm the district court's ruling but i also think it's important to recognize that i mean i know a judge has you raise the futility issue of how this case came about is important because our trial judge the district court had all this and she made the determination which is again and a determination of fa so is reviewed for abuse of discretion having lived through all this and seen the entire history she said this wasn't futile because she knew it wasn't futile we had no problem adding a word recording i mean it was no big deal and  it wasn't just a not a big deal to us and wasn't a big deal to anybody else i mean the fact that we added almost sudden we didn't listen to people saying oh my god we never knew this you know what this is terrible it was a non event and it wouldn't been futile because if you look at their under under graham case which is a california supreme court case you're supposed to be precise in specific and what you say you want you can go back and look at the records they don't even mention in those earlier complaints anything about the admonition or the lack of the work recording we read between the lines when they finally got to the six thirty two point seven case we read between the lines and that's what the court is saying ok i get it did these pleadings were completely uncertain we read through the lines instead is this what this is about put it in there because nobody care which goes to the third point i mean to get damages for attorneys these are supposed to gave some sort of tremendous or significant public benefit the court looked at this and said adding that word record didn't add any benefit to the public and she did that again based on a set of facts which you know are reviewed again by an abuse of discretion she knew i mean she heard all of it that this only occurs when you're ordering concrete truckloads of concrete i mean those big trucks of it it's a known common practice in the industry we had people testify to this i mean that the customers themselves would call they testified to this that we gave deep tones for years it was no big deal to us i mean we were getting beat tones those annoying beat tones if you've ever heard them and some people don't hear ok well i know i'm there with the i can remember the beep tell and so it they update the system and they say monitor which they think is perfectly fine they don't think there's any problem with it word record we have done it now that would have never gotten really case let's be honest because this case has always been about money billion dollars and statutory damages two hundred twenty thousand for any i which is what they sought which was four times more than they owe this for the concrete that they had to pay so i mean it the court certainly did not abuse its discretion and those are three of the four finding she made that this court would have to say was an abuse of discretion to find that they're entitled to tourney's fees the last one is just the issue of you know no necessity or burden for private and force meant obviously there the court found that there is no fifth issue with the financial burden side because you're seeking billions and hundreds of thousands just for you and on the public and force and they had simply done nothing to show that there wasn't something there and  we know from public records and actually from published decisions that the government does in fact prosecute people that they feel are improperly invading people's privacy under the california invasion of privacy  about that time i was going to say i'm out of time so let me just say it unless the court has any questions i would i would simply conclude by saying the district court did not abuse its discretion in any of the orders of energy here and that all those orders should be affirmed but if you have questions i would obviously answer them and thank you thank you for your time this morning thank you we had about three minutes faster on one minute and thirty  think counseled just said if i heard of correctly that injury is a question of fact and if that's so that fact had not been to tie i decided at the time of the case the class was decertified  ruling didn't define whether or not they're receiving at the outset of the case yeah i think it did not define that because i think she she made that finding based on the testimony that happened a trial that testimony hadn't happened yet at the time of the decertification and if the and if the so if the injury is a question of fact we've got standing because that you know that that question of fact did not get resolved until after the decertification if it's a legal issue  haas testified at trial that he didn't know he was being recorded that's not disputed and so that injury if it's a question of law that injury occurred at the moment he was recorded so if that injury also existed at the time of the decertification so either way i think we have we have standing and i think it's important to note that that stand that the class should not be  lost only because of if the named plaintiffs claim goes away and another person another representative could could refile this lawsuit anyway so you know it's  putative class member shouldn't be denied their chance to litigate this anyway i think that the discussion regarding the garrus case i think the man lost his liberty sure he lost his liberty and that's important but the california supreme court has and the california legislature has deemed this invasion of privacy to be a very important right they said it's an affront to human dignity to to record someone sarap tisha slee so we're not here to compare who's who know invasion or who's who is harmless greater the point is that the statute the legislature and the supreme court has said this is a violation and it occurred and i think that there has been no finding otherwise the time of the decertification in you