good morning your honor some may please the court this is an appeal of a class certification decision that certified a class of all purchasers which is apparently more than eleven million purchasers of  rigid wet dry vacuum manufactured by my client emerson electric we believe that the class certification ruling should be reversed and that it should be reversed for primarily three reasons the first is that under this court ruling in the paris case by judge kelly a nationwide class action cannot be certified under the missouri merchandising practices act where the purchaser bought this product outside of the state of missouri secondly under the first st jude case decided by this court the plaintiffs cannot show pretty common questions predominate because of the fact that there needs to be a choice of law analysis even for the other counts that exist in addition judge collett and second st jude case demonstrates that there is not common questions of fact or law that predominate in this case one sentence in the trial court's order that's on appeal i think really drives home the issues with this class it's the sentence on page seventeen of the trial court's order and what the court wrote there was if quote certain purchasers did purchase the wet drive act for reasons other than the advertised he course power those purchasers will likely not file a claim apparently in the claims resolution process and so we believe that that sentence is an acknowledgement that there are many class members on the expert testimony establishes that there could be as many as three million customers without harm or damage in this case but that the individual questions of causation and of damage are going to be resolved under the district courts approach through a claims resolution process which we don't think is appropriate and so for those reasons we believe that this class remarkably broad and restricted by geography unrestricted by time unrestricted to people who even read the allegedly false or misleading advertising and unrestricted to any requirement of proof of damage other than to hope that the people who weren't harmed or who did not read the material might not submit a claim is it possible to be harmed by refusing to engineer where i don't believe so in this or certainly in this case i mean there are stock drop cases in the securities field where they do say that you can have a theory of a fraud on the market where there's an efficient market we  definitely site several cases that reject that in the class action context for consumer products including the mclaughlin case of the second circuit and then one of the fundamental points of the paris case that the judge kelly wrote was that when you look at these consumer cases you have to have causation and harm the m p a missouri merchandise practicing act requires for there to be an action that you have ascertainable loss resulting from the misrepresentation and so if you have a situation here where a consumer never saw it they weren't harmed by it and it didn't cause their purchase all of those are essential elements of the claims that are being made and when you look at  one this is the case out of minnesota where the trial court certified a class regarding a heart valve device under the consumer fraud act what the eighth circuit held in that case was that you couldn't have a class certified because in the words of the court some patients didn't get any representation about the heart valve issue in addition some heard about it from doctors and not from the marketing material and then some heard different representations that were made and if you look at the st jude case which i would say is the one that's most on point for your honour's question from this court at least you would say that in the absence of all the class member seeing all of the same representations you can have a class action like that but in this case when the representation for the all the same even if the person's even if there are persons who didn't receive those representations there's not a dispute about what the misrepresentations yes there is your honor and i don't even think it's a disputed one because the record evidence in this case is very clear that starting in two thousand and eight and nine but certainly by two thousand and ten our packaging contained material and this is  the new disclosure is that appendix three three one four but we started putting on our box nine years ago nine years of class members received an additional disclosure that says he course our represents a level at or below the maximum horse power output of an electric motor tested in a laboratory using a dye naaman or and so we have a disclosure that says it's a lab based item and we have record evidence that that happened by two thousand and ten that's in our thirty six testimony at appendix four sixty eight sixty nine this is talked about in all the expert reports and so we do have the classic case we have all of the circumstances that courts have used to reject certification we have a large number of people who didn't read the representation of the issue we have different messages even from us because nine years ago we changed the disclosure and then we have direct evidence strong evidence from the class members themselves that they either didn't read the materials at issue or that they didn't rely on it at all i mean we have direct testimony from for example class representative breeze at appendix three one six seven where he says he's asked did you look at the box and his answer is no so you wouldn't have taken the box down and looked at any of the language on it at all the answer is no so any information that would have come on the box played no role in influencing your purchase decision yes that's appendix three one six seven but then we go on to talk to the others and they're represented in their depositions where they say for example they bought based on prior experience they bought based on applications that don't need power in fact if you look at mr christopher willis this deposition this to me crystallizes all of these prominence issue mr willis is a class representative and he said he bought based on prior experience but he went so far as to say that prior experience quote is the reason he bought it and that's it appendix three one eight nine and so we have all of the touchstones of classes that simply cannot be certified even on a single state basis her st jude two where the court held that where patients didn't get the same representation and some didn't get them at all some receive the doctors just like our products  sold at home depot we don't have proven he with the customer we don't sell direct to the customers and many of them talk the sales representatives and so your honor to answer your question which is the second question presented in the appeal the first being can you possibly have a nationwide class here i believe that the record evidence and its undisputed because it comes from their own mouths of the testimony of the plaintiffs and the undisputed record is that all of the circumstances that show that there's a case would be swamped with individual questions would predominate are you familiar with the shop kids that's when you have a shot at the shop that case being the one that ended up getting settled and they have a new disclosure they attach the settlement of that case there and i've been there i think if you don't think that that's consistent that certified a class here for liability purposes this isn't a settlement class action at all it's a liability case and i believe that even if you looked at the fundamental issue of whether peak or spare hours somehow that standing alone is deceptive we would have to have individual trials on that as well but the causation and the damages questions for him to vidual plaintiffs in a liability and damages trial would overwhelm the case shop that did result in a settlement class action and it did result in the court approving a settlement but we view the circumstances as being quite different and in fact the experts rely on the shop vac experience to support the idea that there was no harm here let's take the very first fundamental point is to make use there were no challenges to the choice of more predominance i don't i believe shot back would be was the materials that are in the appendix which are attached to the planet's motion for a class sort of occasion relates to a settlement class action where they paid four million dollars to change the labeling but no damages and that was what was was presented there and i don't believe that there is any holding in that case that would say that where you have evidence like we have here where consumers are relying on it and where there are no damages that you could have a liability challenge case presented shot back did result in a change in labeling for one of arca competitors but it resulted in no change in price and no sales information  fundamentally when you look at choice of law here we have an m m p a claim missouri merchandise practicing at claim and paris from judge kelly is directly on point like emerson home depot i mean a like emerson h and r block was a missouri based company that planned what plaintiffs contended was a nationwide deceptive practice out of their kansas city headquarters but the court declined to apply missouri law nationwide because as the court this court held quote the law applicable to each class member would be the consumer protection statute of that member state i don't think that there's any basis to distinguish the trial court relied on a case called estus justice is extremely different than this case because estus was a missouri attorney general action and it was in state court that doesn't present any of the article three standing requirements it doesn't present any need to prove damages the attorney general wasn't even seeking damages in that case no federal cases cited estus which the trial court relied on here for certified a nationwide class action and of course in that case there's many factual differences as well which is that the defendant made calls from missouri to consumers the defendant received money from consumers in missouri and the contracts that issue they were vending machine contracts were actually signed in missouri here our products are made elsewhere shipped elsewhere and we sell them to home depot and then home depot sells them to the consumer and so as they have a court this court held in paris that should be a law of the state where the transaction specifically as we did in paris i don't i think you can resolve it under the standard choice of law analysis as well which is essentially what the court directed the district court to do in st jude one and that's a perfectly appropriate way to do that you would have to reach an interpretation i suppose of state law but under the under all of the restatement standards the headquarters or the grab a man of the action is the law of the state where it happen we do cite and talk about restatement factors for each one of the three causes of action and needless to say st jude also tells a district court that for every single claim you have to do this choice of law analysis and that would be reversible error for just simply not doing it at all for the warranty in the unjust enrichment claims as well when you look at choice of law your honor you're looking at you know i would say we have a hierarchy of arguments all of which count to move towards reversal which would be paris says it doesn't apply extra territorially jude says you can't apply these nationwide and so in all of those circumstances we think it would be grounds for reversal of all of the causes of action then if you get to the question could you certify a statewide case under missouri law which what would you have there you could not do that as well for the reasons to fundamental reasons one is causation is an element of every claim and st jude and hardy plank which is a great district in minnesota case that applies the sports president precedent says that where you have all of these circumstances we have here you have individual issues of causation but equally fundamental and perhaps even more fundamentally we have a situation here where the plaintiff's own expert who came up with a three hundred  forty five to four hundred seven million dollar damage model based on a survey when you look in that survey even the plaintiff's own respondents to that survey shows that thirty percent of the customer base would not pay anything different and therefore were not harmed and so we have a situation where there are literally millions of people if you even accept the plaintiff's damages theory the weren't harmed at all in this situation and we cite a series of cases and from this court you would say the blades versus monsanto case where the court says damages to all class members must be shown to justify the class action and they have to be able to prove quote the fact of injury or the class as a whole with common evidence and the court and blades declined to certify this court and blades were not every member of the proposed class could prove with common evidence damage i would urge the court if you look at our briefing to focus in on comcast the supreme court case blades from this case mclaughlin from american tobacco which i believe addresses judge smith's question about can you have injury without someone actually reading something or being deceived by something that's a light cigarette case where some large group of consumers actually said they would continue to buy the cigarette anyway and they held that you can't do classified damaged there are twenty eight jail letter we decided a case from the first circuit which is really applicable case here i would say because it's an antitrust case where they found that ten percent of the people so much less than ours weren't harmed at all and they went through and said that you can't under as a call you cannot have a class under those circumstances because you're not subjecting the defendant to fair procedures for class wide proof damages as a call sites judge smith's decision and however soon as well as support for that proposition i'm eating into my rebuttal time at this point in time i would just urge the court to reverse on both the nationwide class action aspect of this but also the predominance because the main factors at st jude's need to be present for nationwide class action are present we don't have a uniform representation we don't have uniformity in reading it we don't have uniformity and seen it we don't have uniformity and whether the plaintiffs actually relied on that fact i think it please the court i want i want to address a few of the points that he just made you so i can get to them first in this case this is a very typical consumer price action case this isn't a name i trust case where injury in fact is an element of the cause of action that's all the cases he cited we do not trust cases with respect to that issue this is the test for a class what proceeding is under common answers after dr resolution of the litigation that's the wal mart case from the supreme court emerson had a nationwide campaign for ten years they did studies and said what's the most important thing to consumers when they're buying these types of vacuums and their own study said the number one thing is horsepower and what they did our contention is they came up with a fake definition called he course power which sounds like horsepower but it's not really it can't be replicated it at all in the consumer's use doesn't doesn't serve a reasonable function of offering the consumer way to complain or know of those in the industry are using the same terminology no your honor and here's why because what they've done is they've created i won't say fake but they created a correlation between air watts which is how much suction the hose has and this course power definition they came up with that's what they claim but they didn't say this has so many are watts this has so many are watts this is so the consumer can compare if they really want to have the consumer compare air watts they should have so state they didn't because they know consumers look at horsepower and that's really what they want to look at it's worst so they came up with this definition our contention and we proved it by an electrical engineer and their own testing and their own admissions of their of their engineer said it's not the horsepower advertised is not what is real horsepower it's something different if we're right on that and that's a false statement what we've done is we presented expert testimony that says under the am m p a that was a unlawful act and what is the ascertainable damage and every person that bought one of those vacuums according to our expert dr bought a car using a methodology they haven't challenged his qualifications or not even if they purchased it without consideration what its peak or its power potential was absolutely and here's why what dr bacher found was he did it to conjoint studies and said how how do consumers rank these individual features and what he found was t very conceivable someone would purchase one reasons completely devoid of the representation of its horse power plant abs that's absolutely correct your honor and here's here's the answer they paid too much because the price was driven up by demand because they lied about horsepower which caused the price to go up so everybody whether they looked at horse power or not suffered an ascertainable loss under the m m p i because the price they paid was too much and that's that's that's our expert their expert didn't dispute that they he critiqued our survey they didn't do their own survey so and he didn't find that twenty or thirty percent of the people don't care about horsepower what he found was it's not in their top two or three points and and dr he gives an example and this is in the appendix and i want to find it he gives an example of you buy a package for cable television it's it at the appendix pages for three four nine through four three five zero and what he said is my wife really loves e s p n she likes to watch e s p n i like the travel channel the cable company decided we're going to charge a thirty bucks for this package which includes ten channels plus those two now individually i might not pay thirty dollars n my wife would she might pay more but as a whole that's the value of the package now if he s p n is out for a month i didn't get the value of what i paid for i paid for that and that price was set based on that package of factors and that's what his study shows so am i damaged even though i don't like e s p n sure i am because i paid for a package that i didn't get that's exactly what happened here these consumers went in and emerson knew it and they said oh which one has the most horsepower measured in a lab using a dynamometer they didn't do what shop that was required to do which is say hey this definition of horsepower we're using isn't a real definition of horsepower it's a made up definition we came up with and by the way we think it somehow correlates to air watch which is what we think is the suction a vacuum so so that's that's why even even under the m p a even if some of the consumers didn't look at the end they're still they still have an ascertainable loss now i'd like to i'd like to talk first about conflicts of law the judge kobus us a question about whether or not that could be decided you know i heard counsel say the most important factor is where where where where the injury occurred that's not the most important factor in the conflicts along those are it's the relationship of the parties and the relationship of the parties here unlike the paris decision in paris h and r block the missouri company had representatives in other states and entered into contracts with individuals from other states to do their taxes so there was an individual individual eyes relationship where you went in and said i want to get my taxes done in kansas and you met with the nature block representative in kansas and judge kelly who wrote the paris decision said yeah that's an individual eyes contractual decision that's that's the relationship occurred outside the state here emerson didn't have people outside the state of missouri talking to these people and we're not accusing we talked and he talked about well are the representations all the same there's no question they're the same the reppert representations we're talking about the same we're not saying some only people sales representative said something that was misrepresented that's not the case emerson created these advertisements emerson sent the advertisements to home depot emerson did studies and said here's how you're going to put our products  you're going to use our packaging you're going to use our point of purchase displays council talked about well one of our one of our plaintiffs didn't look at the box he did testify to that but he also testified he saw other other parts of the point of purchase displays in the advertising i mean there's no real evidence that nobody saw the the advertisements at issue here so would you say in terms of our state in this case is who gets it seems to me anyway to be a huge part of this asked and the difference is is exactly what i talked about here emerson created this ad in the zuri the engine or the proxy in missouri they might be manufactured in china or somewhere else but they may need a engineer to test them this p course power testing that they came up with was all done in missouri then package the product in a way that was required to be sold by home depot they develop a point of purchased material that was a part to be used by the retailer and the consumer came in and looked at that so the relationship of the parties if any is here in missouri because that's where the product emanated from that's what i asked this was about the vending machines came from missouri they were sold outside to consumers outside the state of missouri and and in in paris that's not the situation it's not a consumer product it was an individualized transaction and i made a few points to judge kelly made in paris which says specifically judge kelly said each class member contracted with a local h r representative for tax services and paid the  this is an individualized encounter there is evidence that each class member would offer would be specific to her experience in her state and her local h and r block office the suit did not challenge the act of creating the fee it challenged paying the fee the payment of the fee happened outside the state here all the conduct that were challenging and that's what the district court found as a factual matter was in the state of missouri that was all found in the state of missouri everything we're saying should they happen was in the state of missouri testing advertising created in missouri by missouri entity outside the state of missouri and that's exactly what we have here and that's what the district court found i want to talk a little bit about the m p a and and the argument that there's there's a there's a causation requirement an individual's causation st jude case they heavily rely on the st jude kids st jude was a medical provider a medical device manufacturer made heart valves people go to their doctor because their heart valve is bad and they say i need a new heart valve doc what should i get and the doctor says oh i think you should use this heart valve and in that case it's an individual eyes relationship where you're going to your doctor and say and what heart should i use and this court said you know what there's you know there's there's conflicting evidence of some doctors did get the representation somebody didn't this is a consumer product where you go into the store and buy it based on the purchasing this is not a heartfelt secondly the entire st jude analysis was under the minnesota consumer protection act out of the exact word for in that analysis this court said the the the the case it was it was a supreme court case in minnesota and i'm at a loss for the name and i think it was general some but it cited and this court found that the supreme court of minnesota said the consumer statue minnesota didn't eliminate reliance it just relax the standard and that's what this for help here contrary to that we have the webster case the webster case which makes it very clear in this court found in the owens in the owens vs general motors case which we sat in the briefs and what this court found was there is no requirement for reliance in missouri and there is no requirement to prove the elements of fraud under the m m p a period all that's required is an unlawful act and an ascertainable loss and that's what we proved if we're right and they are and they misrepresented horsepower and people paid too much whether they looked at it or didn't that unlawful act creates an ascertainable loss i want to quote from the webster versus state actor webster case which is another during or after the sale advertisement or solicitation quote it's difficult to conceive how reliance can be an element of a cause of action which may be commenced before defendant has even begun advertising or solicitation you can you can have a cause of action on the m p a before anybody sees the enterprise according to the court of appeals in missouri here we have a situation where the very act of creating the at the ad was an unlawful act and we have secondary evidence not just our experts that say consumers really care about horse power and and they purposefully create according to our allegations this made up definition of horsepower to hoodwink consumers into paying too much than they should have and our whose qualifications are challenged and who use the accepted methodology is not i agree they make their expert critiques and said you should ask this question or that question all of that goes to weight not admissibility all of that he says yeah even though some consumers might not care so much about horse power they still had class wide damages because they paid too much i want to talk about three of the cases he mentioned the asacol case from the first circuit that was submitted in a letter bring in that case that was an antitrust case that said company had a patent covering their product right before the patent expired they w product on the market and under the f d a laws a generic can't get on the market if the brand name is no longer on the market and because there was no generic drug on the market people couldn't buy the generic drug and they said that's an antitrust violation and our class of people paid too much because had they been able to pay by generic drug the court found it was undisputed about ten percent people by the brand name drug anyway they're going to buy the generic even though it's less that damage is an injury in fact it was a standing watch which has mentality that damage was an injury in fact and it's an element of the pause of action and in that case you have to say well i lost money because i would have bought the generic and some people it was undisputed wouldn't buy the generic that's not the case here i of would have had a damaged jury that said because there was no generic the price was inflated and everybody paid too much that would be a different story that would be a little bit more like our case the mclaughlin case that was a rico claim a violation of the rico statute for light cigarettes and then the move off in case they said well because you deceived everybody by i just generally the public know when the end think in that light cigarettes means less then people would have bought light cigarettes and so we want to money back that again was an element where they said well some people probably would still buy cigarettes and by the way there's a there's a warning on cigarettes that says this is going to cause cancer and cause you to die and people bought it anyway so some people probably even if they knew that light cigarettes were healthier form would probably still bought it again injury in fact element of the cause of action the how verse and case that was mentioned in this particular that the circuit decided it was a breach of contract for not paying enough money for the reasonable charges incurred under med pay contracts and this court specifically found well sometimes people do pay more get the reasonable amount reimbursed sometimes they didn't and it would require an individualized analysis again none of those under the m p a not a single case they cite other than was somebody who was selling selling services to people outside the state of missouri and it was brought by the attorney general and said you're depriving people outside of the state of missouri and but but but there are also people in the state of missouri but the key issue in the was the defendant argued you have to show reliance or you have joined tenet i intended to defraud people and the court of appeal said no intent and reliance are not necessary elements of the cause of action and that's the big distinction w court rightly decided the minnesota supreme court said well we're not saying reliance isn't required we're saying it's a relaxed and that's not the missouri law the missouri court of appeals and this court distinguished ask this in paris and made the same point that you know the this court said in paris well this is an individual as contractual terms action unlike estis where somebody is making false statements on products and selling them outside the state of missouri  i would like to talk a little bit about now about the causation and damages discussion and with respect to the comcast case where our damages we are not required to prove damages under comcast under comcast there were five theories of and i trust liability one was certified the expert gave opinions that said this is a supreme court comcast case that said the expert said here's the damages from all five theories and the supreme court even though it asked please brief whether or not this report has to decide whether or not an expert board is admissible that was the question presented they didn't decide the case on that was you have to identify damages stemming from defendants conduct and it has to be susceptible to measurement across the entire class that's exactly the proof we have in this case we have damages we have damages paid too much paid more than i should have because the price was inflated because you misrepresented the horsepower which consumers look at and our expert measure has said it's susceptible to measurement across the entire class and there's there's critique dobber analysis and determine the admissibility of the experts opinions and this court said no it doesn't you don't have to at the class or vacation stage do the full analysis with respect to oh there were there were some criticisms of the district court because the district court they said didn't do such a full analysis at the conclusion of the district court's case the district court and this is at the  satisfied all rule twenty three requirements for sort of playing class the court has reviewed all the reviewed the material submitted in favor or against class sort of occasion which is all the dobber and with an eye focused upon satisfying the concerns expressed by the eighth circuit the court made it clear that it understood the requirements and what it had to do with a rigorous analysis of the rule twenty three and that it had done so and now they're trying to say well our expert will come up with something else  think that the decision was wrong we didn't really lie horsepower you know we have a formula for that and we fixed it all those are fact questions and they'll get decided at the right time but this court made the decision and it and it used its discretion to determine yes on was that lawsuits don't challenge the mere fact of creating in the allegedly unlawful conduct they have no standing to bring a claim for relief based soley on the advertising the key is t purchase so the reason a reason estus has never ever ever ever been cited or relied upon to certify a class action nationwide in the m p a is that it's not a class action case at all it's brought by the attorney general an injunction and restitution there's not even a claim for damages in essence and so that is legally extremely different than bringing a claim where you have to have standing and you have to have harm and you're seeking money damages in the form of a benefit of the bargain analysis in federal court to compare it to an attorney general action where no standing is required whether statutorily empowered to to do these things and it's never been relied upon for that and then you look at what the differences are and there are major differences between this case and that case the big three differences between the cases your honour's are one the defendant in estus actually called directly to the customers and made miscommunications from missouri here emerson packages these products are packaged elsewhere they're made elsewhere they're sent to home depot they're sold to home depot no person with emerson talks to them from missouri ever in addition the money from the consumer got sent to missouri in estus and in that situation what that the differences here of course the consumers don't pay or send anything emerson's already sold the product it's sold at home depot the money goes in the state the allegation is that the misrepresentation of originated in missouri that they allege that originate in missouri which is exactly what was alleged emperor paris in paris what they allege was the misrepresentation originated at h and r block headquarters in kansas city that's exactly parallel and what judge in the in the key point being is what facts matter or article three standing what facts matter for federal court decision making what fact really matters for a class action is exactly what this court said in paris which is the lawsuit can't challenge and doesn't challenge just the fact that something originates somewhere with action and that is a sale nobody could sue us and here and say oh well i didn't buy the product somewhere but i want to challenge your practice and that's the key dispositive fact so i would suggest that estis is distinguishable legally because of its posture and because no scanning is required because it's in state court because it's not a class action because they're not even seeking damages and it's distinguishable legally because what the court held in paris was most fundamental was the missouri merchandising practices act where they said that strictly speaking reliance in a fraud context is not a required element but what they did not hold in that case and what they do not ever hold is that causation is not an element and so what they said in the cases and in our court your court cites it in the owen vs general motors case is to say you don't have to prove reliance but quote there is no denying that causation is a necessary element in the plain language of the m demands a causal connection between ascertainable lost and unfair deceptive merchandise practicing act and therefore under the m p a consistent with webster consistent with this court's decision and owen five thirty three f third at nine thirteen there is still a serious causation point and what judge calls and gets into in the second st jude cases to say that when you've got the serious causation points they present a lot of the same factual issues and factual differences so i would urge the court to say yes reliance us technically not a requirement of the m p a but causation in fact is and that causation presents individual issues of the same ilk but this court used to deny certification as well as the  before the court this morning the argument which you provided to the briefing that you have submitted and will take the case