act these cases are regularly certified as class actions under rule twenty three v three we've had we say multiple cases where nearly identical cases have been affirmed by the seventh circuit or denials have been reverse are really only two circumstances where we wanted to a problem certifying these cases one is where we're lacking the facts transmission logs so we can't tell which fax numbers successfully received the facts that's not a problem in this case because we subpoenaed the third party fax broadcaster who actually transmitted the faxes a company called slingshot and those records show which number successfully received the facts and i gather there's thousand seventy nine nevertheless the defendants did argue their main argument below against classification was ascertained ability and that was before this court's decision and overseas can act kind of ever earlier this year which rejected the heightened ascertain ability standard that the third circuit applies in class action so the defense don't argue that in their brief i'm not going to spend a lot of time on it unless the court has other questions about ascertain ability i do have one question that doesn't have to  there's two reasons because my question is what's the impact of that decision on that that's a fair question and that that decision came down after the district courts understood i'm just trying to figure out what's left here because i am reading the case law thing that once the circuit resolved that issue then it's binding nationwide right we disagree with that completely and i can understand why reading the district the d c circuit's opinion you disagree with the with the nationwide application in the correct ruling correct because the f c c order that was on appeal and that's the name of the d c circuit case was the october thirtieth two thousand and fourteen order of the f c c that ordered that order was  eight years after the regulation was issued and and attack on the two thousand and six two thousand and six regulation was time barred by that point you couldn't go into the f c c an appeal and hobbs act procedure and that's what the f c c ruled and they just d c circuit didn't their decision binding on all the other circuit as a result of the statute it's not your honor and and i'm not arguing i'm not trying to convince this court that the d c circuit was wrong although i believe it was an that sought a declaratory ruling that the regulation was invalid as time barred its address the only time the petition was which was the staples petition to repeal the rule prospectively on the merits the d c circuit didn't touch any of that it and the f c c before the d circuit said the only reason any this issue of the validity of the regulation is even life before this court is because staples petition to repeal it going forward but i thought the issue in that case was it was apparently confusing and why the f c c the original regulation as to whether it applied to companies that had existing business relationships with the transmitter of and the business community didn't know because it wasn't clear then the agency opt out notice on a fax sent with an exe established business relationship everyone agrees in the f c c agrees that that rule is clear that's in the statute you need that that's not imposed by regulation what the confusion in the f c c ruled was was about in the statute says in that circumstance where there isn't a b r and where the customer voluntarily provides their fax number to the sender and three there is a compliant opt out notice on the fax informing the recipient how said this this waiver does not apply to the exception because that's clear and everybody understands that and really what i've tried to what we tried to show in our briefs is that this is the classic e b our situation this is exactly the situation that congress contemplated in two thousand and five in the junks junk fax prevention act of two thousand and five congress wanted to make an exception so that companies could send fax ads to their customers who had voluntarily provided their fax numbers as long as they provide a  not ask you to concede but assuming that that's not a winner for you what i'm interested you know is the three possible subclasses for which i think you're arguing and i think you're arguing that the first of classes is exhibit first argument would be we can do exhibit a that's everybody all eleven thousand nine hundred seventy eight because that if any say everybody gave prior express permission in a software registration and they did and if they're wrong on th then they've got a separate argument for those in exhibit b right so if they're wrong we have to move would be so we can get a definitive answer one way or the other with respect with respect to exhibit a minus b and c right and if they're wrong on that they lose on that and correct then for exhibit b we've got the additional defenses that they claim are available but i don't i can't find much that i can't find out much about in the record that are going to front of me and then finally exhibit c is the fifty five for which they say well there's an individual correspond correspondence or communication correct and exhibit c is fifty five that's like point four percent of the class i can i suspect you don't care very much about exhibit c well yeah i mean we care about them but we have to exclude them to save the other eleven thousand seven hundred you know give it up of course and the same you know in the alternative goes for exhibit b if the court determined  that exhibit b is other methods the defendants claim that these people twenty seven hundred about twenty two percent of the class gave permission to other methods which include like a consent form which we've never seen and i don't know what the consent form says  or there's a crime i guess this is from the other side why have we never seen them i mean if that's their defense and we know from van patten look it's their defense to bring forward why don't we why why is that why is that number shown up all the wrangling about discovery i don't know your honor what they were ordered to do in this order granting sanctions judge reduce order sanctioning the defendant was to break it down by category which they said they could do the defendant said we can give you about by category and what they were to do was identify each recipient that's in each category and produce an example they didn't have to produce software registration forms for twelve thousand people they could just give us an example of what the form was which which they've done for the software registration forms and by the way that say nothing about receiving fax advertisements but for exhibit b i don't have those documents we have declarations from two employees of the defendants who say oh yeah we got permission all the time people would tell me on the phone that they would like me to send them fax ads you know so given that it's their burden of proof to prove the prior express permission defense were urging the court to hold is a defendant can't tip the scales against class certification by speculating that some people may have given permission through oral or e mail communications or that they may have signed a consent form which we don't even know what the consent form in the six circuits decision in britain communities which rely on our brief is right on point with that is this case actually closer to bridging communities or the gene and gene as  to the class members for whom they've produced no documentation and in just in general terms my understanding is bridging communities is a case where company that was going to send out these facts was simply bought a list of telephone numbers made no effort to determine consent or acceptance and sent out blast faxes it's not correct that's correct they hired a third party marketer or an ingenious different  that was before my time and the opinion is not real clear on what happened but i believe the defense was setting them in house sending the faxes in house and didn't hire a third party broadcaster like the defendants in this case did but so in that respect you know it's further away it's not a third party marketer case like like bridging communities was but it's also not like gene in gene or the sixth circuit if you can i don't know exactly what the record jena gene but like the sixth circuit case in sandusky wellness versus a s d which the defendants rely upon curious to know what you mean by before my time before i started doing t c p a litigation it wasn't one of my cases most of these cases are my firm's cases so i can talk about it in greater detail about the record my firm does more of these facts cases and anyone else in the country but in sandusky well the sources a s d the defendant produce like four hundred sixty thousand pages of consent related documents all these different forms and that they gathered over twenty years to you know some of them were actually really good and said we're better than anything i've ever seen said i hear you know i understand it the  advertisements and here's my fax number and you can send me fax that it's nothing like that in this case there's the software registration stuff software it is gratian forms and user license agreements which really just show in e b are and now that the defendants can't satisfy the safe safe harbor because they have no opt out notice they're trying to fit a square peg into a round hole and say we can't meet the the lower relax standard that congress created for exactly this situation so we're going to try to fit into the higher standard of p to you know undo class certification or avoid class certification which is all they're really concerned about frankly i don't reserve two minutes if i can your honor let's hear from the  thank you i am joseph cao more here on behalf of my cason the district court did not abuse its discretion in denying class certification the court correctly concluded that individualized inquiries into consent would overwhelm common issues in this case what about the class that i forms clicked on and their uniform is to every member of that subclass now that's not correct your honor we have multiple overlapping forms of consent and no as i read what i've got in front of me there are three exhibits voluntarily gave their fax and i've read those i gather that's uniform for eleven thousand correct as to us exhibit b you have an additional defense but if i subtract exhibit b and exhibit c from exhibit the only defense you have as of those nine thousand or so is those two forms that have just run the record isn't that right respectfully your honor that's not right why is that wrong because it seemed to me that that was crystal clear your honor if you look at pages excerpts of record six to seven this is where the district court reviewed this and of course this is up here on abuse of discretion of course but i'm talking about what's in the record whether records of the district court was citing the record it was citing are supplemental responses it was citing the paul declaration on the holloway deposition and in all of that material what mike hasn't said was that there were multiple instances of verbal consent and they were not always recorded in the sales force database which is the basis for exhibits b and c i think it's important take a step back and look at the larger context here so you're saying that the software registration form doesn't doesn't address it does your honor it is a common question as the district court recognized  language would you point me to in the software registration thing because i didn't see anything that said anything about consenting to receive faxes it doesn't your honor of course that's a marriage question which is not directly at issue here but i'm happy to answer it under this court's decision in van patten from earlier this year the court held that on the phone call side of the t c p a voluntarily giving a phone number in the context of a commercial transaction constitutes consent to be contacted at that phone number on subjects that are material to that same transaction so so to hear and this goes to the point i was imply or in for from the fact that each customer supplied their facts yes which they didn't have to do they were they were purchasing software this goes to the context point i think it's critical for the court to understand all of these faxes went to existing mckesson customers this is not a case like the court sees sometimes of someone purchasing a list of fax numbers and blast faxing ads for timeshares or something like this all of these people were existing mckesson customers they had bought a practice management software and then the communications were relevant to upgrades and other things related to that software moreover there were a way why couldn't the district court certify that sub class and decide that question whether or not the submission of the fax number to mckesson is fission to establish consent to receive advertisements at that number because your honor there are other forms of consent that are at issue here and what the supreme court said in amgen is a question is susceptible to class certification if you're going to get a yes or no answer that is going to decide the question for the class the actual if the answer is yes you win if the answer is yes you know there is no and i guess what what you're telling me is that your fallback defense is there is consent that can be established some other ways such as absolutely or by  customer sales rep by sales rep and in basis did you produce all of that discovery in response to the district court's order we certainly didn't do that investigation and produce a eleven thousand examples of this  kinds of conversations but we said in our supplemental in iraq to our responses based on deposition testimony in a sworn declaration that these conversations happened all the time the sales reps were on the phone with their customers they were visiting their customers that undisputed evidence in the record shows that customers frequently asked for information to be sent by fax i guess the question is is that enough at this point or is that too speculative under our case it's not at all to establish your honor it's not at all speculative it is it is concrete sworn evidence that the district court relied on and of course this is here on an abuse of discretion standard and what the district court said it page seven of the excerpts of record was mckesson can show i required to could go through and go on a customer by customer basis on a sales rep by sales rep basis asking about conversations and establish consent for many of these individuals there's no rule that requires the vast incredibly onerous investigation to be done in advance of class certification the whole point of class certification is to see if there is a common question with a common answer that will let me know i was in a different way aside from was that the hall examples of a specific customer or a specific column a detail man because i'm not sure what you would sales rep conversation with a specific customer saying on such and such an occasion this customer orally provided can say you know i don't think that we have that at that level of granularity and i don't think that that's required what we have is all we have is a general statement that there there is out there in the world that could be discovered  perhaps through the testimony of these sales reps individual conversations on a customer my customer base your honor we have jeffrey paul said and this is the district court relied on this and excerpts of record seven explain that he would have quote numerous conversations with customers over the phone on a daily basis and that it was commonplace for customers to ask him to send them information by fax including information on auction on promotions and how does he know that is that from his personal knowledge absolutely he was a sales representative and then in the holloway she supervised a team of sales representatives in fact some of the faxes that issue here were signed by ms holloway so she was very familiar with the work of the people that she was supervising and she said that customers and this is again to seven customers would request a lot of information via fax that she and other sales members would send faxes either in bulk or one by one and she explained that they would send faxes to existing customers based on their communications with each fax recipient this is very concrete specific evidence sure enough we didn't go through and provide a file for all evan thousand recipients but there's no obligation to these that you've just described in exhibit z your honor in those cases where there was a contemporaneous notation in the sales force database those are in exhibit c but what the evidence shows is that in many cases it wasn't noted there keep in mind again the context either sales representatives there in the field they're selling upgrades they're talking about products these are people who write a memo to the file every time they have a conversation with a customer so in many cases and that's exhibit c and in some cases exhibit b these were noted in the sales force database but in absolutely it is our defense your honor and i'm troubled by the district court not asking to see actually for example you claim for exhibit b there was a possibility checking the box i've never seen that box  discovery was let me see the box and as far as i can tell it never showed up why not no your honor i don't think that they never asked to see the box as far as i know in any event the district court let me ask a different way if this were to go to trial would you report would you be obliged to show the box if that's the basis then what is the defense if you if you don't have the box so what is the defense going to there's a notation in the database that the box was checked but the box is really this a side issue the critical point but what is the box i mean what surrounds it i mean it's the record you are it's not in the record but the critical point for the district court and are you claiming your client doesn't know your honor not all of these records were retained this was seven years ago but the database shows various family asking you are you saying your client does not know what that is your honor i don't believe that we have those records anymore at least we were not able to locate them at this stage of the case but that's not what we were asked for we were asked to provide categories of consent and that's exactly what we did but the driver for the district court was not the box was not  the forms it was the oral conversations judge hawkins you ask about gene and gene this case is almost exactly like jean and jean jean jean was a case where the sender actually purchased a list of fax numbers that something we did we got our fa numbers from our own customers so we're back to a better off than that and city but then there were other forms of consent through the website through trade shows and that sender also didn't retain all of the records it didn't keep records of those other forms of consent but it said if put to the test if we have to advance our defenses we would we would be able to do that and there'd be a series of mini trials in that case the district court actually certified the class and the fifth circuit concluded it was an abuse of discretion to do so in the face of that individualized evidence likewise in sandusky wellness center the six circuit case that was the subject of our twenty eight j letter and the same argument was made about the validity of the d c circuits ruling and then the same argument was made about subclasses as a backup and the court there said no because there are individual there's individualized evidence of consent this consent can't be decided yet you're in a on a class wide basis that's exactly the same here but i think the d c circuit decision really is critical because from the beginning plaintiffs built this case around the f c c as an opt out notice regulation that's what they alleged in their complaint that was the basis for class certification the motion they said don't worry about consent that's not going to be create individualized issues because these faxes didn't include opt out notices and they relied on for that solely on the f c c regulation that f c c regulation is gone now the d circuit held that it was unlawful judge tom and you started off with this line of questions and i think the best evidence of what the d c circuit did is what it said at page ten seventy nine and again at page ten eighty three the d c circuit said we hold that the f c c is two thousand and six solicit solicited facts rule is therefore unlawful to the extent that it requires opt out notices on solicited faxes is this are you going with where you went in your brief to say that the plaintiffs have waived any read the transcript of the hearing in front of the district court there's a specific discussion of how can that have been waived what we said in our brief your honor which is absolutely correct is that the argument they made for subclasses initially was they said let's have a clear subclass of people who consented and a subclass of and there was discussion of it to be sure but then the district court asked for supplemental briefing on something entirely different actually the kind of the van patten question about who bears the burden on consent and if you search the plaintiff briefs the word subclass does not appear but that's not the question that was asked the question was asked under the right your honor but if a party wants subclasses they've got to make the showing they've got to stablish is twenty three a and the twenty three b three requirements for the  subclasses most obviously they have to show they haven't named plaintiff in each subclass and that's something that they don't ever showed here they do that question has been reached is that right no it wasn't reached the district court didn't address it because it was never properly asked for but when no it's uses the prior express invitation prior express consent i think they're interchangeable the f c c has often treated them as interchangeable and it stands to reason again when you're buying when you're buying a piece of software there's an optional box for you put in your fax and you put that number in the only possible purpose for putting that number in is to receive faxes from the from the seller so your honor we believe that the district court did not abuse its discretion the case for class certification as if anything and once that was done and then mckesson recorded the information from that box the fax number and its own internal customer database absolutely and then sent those customers information relevant to the i think i should start where counsel left off at the the different standards for prior express invitation or permission to send faxes and prior express consent to phone calls the f c c has ruled for twenty five years that those are very different standards ok that the standard for faxes is much higher so i don't know if i need to go into that or not but the i've read the cases ok earlier i also to clarify one other thing throughout this year long epic discovery battle that we ha with the defendants over trying to compel their evidence of prior express permission which they refused just to supply to us at first they said blank we're only give it to you for the plaintiffs because anything else would be irrelevant because no class has been certified and we said we can't get a class or vital issue give us the evidence that your claim your defense and it took a year to undo that led up to a sanctions order from a straight judge or you but the defendant's position was the compromise they finally offered was we'll give you our categories of permission and we'll give you the number of recipients in each category but we won't give you their names or contact information like that because you unscrupulous plaintiff's attorneys might do something untoward with it you might try to contact those class members and seed testimony in their minds about you know to poison the case against us so magistrate judge break down the cancer categories permission and you're going to identify each recipient as you said you could who falls into each category then mckesson got new attorneys and they changed their strategy and in their supplementals raga tory when they're finally forced to file one they said well here's exhibit exit b exhibit c but anyone from exhibit a may be in exhibit b and may be in exhibit c but the limitations of our record keeping what allow us to tell you that so the one of the questions here is are we going to allow the defense to do a one eighty like that after we fought it out in the district court for so long on that and i think the answer is no especially when you combine it with the fact that it's their burden of proof to show it by clear and convincing evidence by the way notice on the first page of the hobbs act has a strict sixty day jurisdictional limitation for an appeal from a final f c c order that was the basis of the denial ok suppose suppose you lose on that argument and at this point the d c circuit opinion invalidates it from two thousand and six forward so how do you win on the opt out argument that's what's puzzling me other than to keep telling me well they were untimely i mean it didn't seem to proceedings if it was because the agency may very well decide to enact the new rule and are going forward bases that would not apply retroactively i suggest a more likely scenario is that they have man did so the f c c could open a rule making to repeal the regulation prospectively which is in the in line with what the f c c is interpretation so i am out of time i would like to raise one possibility if you do have questions about that i don't i mean the i'm fine thank you thank you for saying both sides are there arguments to health care are practical issues mckesson submitted for decision the next case on the calendar this morning fox vs vision service plan