[00:00:08] Speaker 01: Good morning, Your Honors, and may it please the Court, Jonathan Cohen, for Appellant Bayer Healthcare. [00:00:14] Speaker 01: Your Honors, plaintiffs' own survey expert confirms that plaintiffs, that a large number, a great number of the absent class members are not deceived, that plaintiffs lack class-wide evidence of injury, and that thousands of many trials would be necessary to determine which class members, if any, can receive damages. [00:00:37] Speaker 01: The district court did not address these issues, which defeat predominance, and it conflated deception with materiality, which is legal error. [00:00:45] Speaker 01: The court should reverse, and we have two basic points. [00:00:48] Speaker 01: First, under circuit precedent, a class should not be certified when is here. [00:00:54] Speaker 01: There are many absent class members who are not deceived. [00:00:58] Speaker 01: And second, the district court did not address key evidence regarding deception and injury, which at the very least were in serenity. [00:01:07] Speaker 01: Starting with the first issue, plaintiffs agree that their expert surveys show that many consumers, at least 40 to 60 percent, and we'd say a lot more, but at least 40 to 60 percent, were not deceived, not confused, not misled. [00:01:24] Speaker 01: This is fatal to class certification under Olin. [00:01:28] Speaker 01: The court recognized many times in Olin, other cases, including Lytle, the case in which they heavily rely, that when a sizable portion of the class is not misled or many class members are not deceived, there shouldn't be class certification. [00:01:45] Speaker 00: How do we think about deception or being misled in the context of a case based on a price premium theory? [00:01:52] Speaker 01: That goes to the conjoint analysis which they raised. [00:01:55] Speaker 01: And in essence, this is a new argument because down below, they recognize that the conjoint was just a damages model, not an injury model. [00:02:04] Speaker 01: Damages and injury, of course, are two different things. [00:02:07] Speaker 01: For injury, you have to have evidence, actual evidence. [00:02:11] Speaker 01: You've got to show by preponderance of the actual evidence that you satisfy the 23 requirements, including predominance. [00:02:17] Speaker 00: So is it your position that this theory cannot work to show injury? [00:02:21] Speaker 01: like legally it's just not a proper basis for showing injury. [00:02:35] Speaker 01: For damages, having the unexecuted conjoint is sufficient. [00:02:39] Speaker 01: That's lidal. [00:02:40] Speaker 01: But as this court has made clear, the Supreme Court has made clear, for injury, you have to have actual evidence and you have to show that the common issues predominate. [00:02:49] Speaker 01: So the first issue here is that their conjoint is not executed. [00:02:53] Speaker 01: They've not shown a price premium. [00:02:55] Speaker 01: The expert recognized there might not be a price premium. [00:02:58] Speaker 01: He does not know. [00:02:59] Speaker 01: He did not run the test. [00:03:01] Speaker 01: So they have no evidence because it's an un-executed conjuring, which cannot be good enough for injury. [00:03:07] Speaker 01: But second of all, this goes to damages, even if it was run, it goes to damages, not injury. [00:03:15] Speaker 01: To show injury in a deceptive advertisement case, you have to show deception. [00:03:21] Speaker 01: And Lytle, the case in which they heavily rely, recognized that. [00:03:24] Speaker 01: It says that when there's a sizable portion of the class that is not deceived, when there are many class members who are not deceived, you should not certify the class. [00:03:34] Speaker 03: The premium... Counselor, what's your best case for that? [00:03:37] Speaker 03: Lytle. [00:03:39] Speaker 01: So their own case, Lytle recognizes that if a sizable portion is not deceived, you should not certify a class. [00:03:46] Speaker 01: It summarized the case law, including Stearns versus Ticketmaster and other cases. [00:03:52] Speaker 01: Olien also recognized that if there's a great number of absent class members who are not injured, then you should not certify the class. [00:04:00] Speaker 01: And I'll note that other circuits have a different test. [00:04:04] Speaker 01: They have either the de minimis test or they say that if [00:04:07] Speaker 01: You know, there's less than 100% of the class being injured you should not certify. [00:04:13] Speaker 01: This court has not gone that direction. [00:04:15] Speaker 01: It rejected the de minimis test in Olin, but it still recognized that if a great number of the class is not deceived, is not injured, you should not certify the class. [00:04:26] Speaker 01: Lytle used slightly different language, not great number, significant portion, but the point is the same. [00:04:32] Speaker 01: When a large number or many consumers are not injured, you should not certify the class. [00:04:37] Speaker 01: In a deceptive advertising case, Your Honor, the purported injury is the deception. [00:04:43] Speaker 00: I want to put all this together because I think you've made a couple of points that I'm not sure I fully thought about before. [00:04:48] Speaker 00: I understand the argument that the evidence or the information that they're putting forward through their expert is the potential of evidence, not actual evidence of injury, if that's what they... I understand that argument. [00:04:59] Speaker 00: So let's set that aside for a second. [00:05:00] Speaker 00: Let's say they had actually done that analysis and come forward and said that some [00:05:04] Speaker 00: you know, majority number of consumers out there wouldn't have bought this thing at this price had they realized that it wasn't natural. [00:05:15] Speaker 00: So in that context, that's still a price premium theory. [00:05:20] Speaker 00: What do you think that they have to show, if anything, as to deception or being misled? [00:05:25] Speaker 01: So if it was just a majority that paid more, that wouldn't be enough, because you still have, depending on the majority, but you still have a large minority of consumers who didn't pay more, a large minority of the consumers who are not deceived, and that's precisely what you have here, because they ran a survey, and their own survey expert recognized that she has no evidence that any absent class member... So what's the cutoff there? [00:05:48] Speaker 00: 75%? [00:05:49] Speaker 00: And what case tells us what that cutoff is? [00:05:51] Speaker 01: So this court intentionally did not draw a numeric threshold in Olien or other cases. [00:05:57] Speaker 01: We know it's de minimis is not enough to defeat class certification. [00:06:01] Speaker 01: A great number is fatal to class certification. [00:06:04] Speaker 01: It's somewhere between de minimis and great number. [00:06:08] Speaker 01: We would submit that even a 40 to 60 percent being uninjured, which is what they say it is, right? [00:06:14] Speaker 01: We think it's far more than 40 to 60 percent being uninjured. [00:06:17] Speaker 01: But 40 to 60 percent being uninjured, that is a great number. [00:06:21] Speaker 01: Whatever the line is between de minimis and great number, 40 to 60 percent is too much. [00:06:27] Speaker 01: District Courts have followed it the same way. [00:06:28] Speaker 01: We cited some cases. [00:06:30] Speaker 01: on page 31 of our brief, including Painters and Hall. [00:06:34] Speaker 01: Our amicus, CHPA, on page 8 of their brief cited more cases, lots of cases saying 40%, 33%. [00:06:40] Speaker 01: Those go too far. [00:06:43] Speaker 01: This court has not drawn a line, and it might not draw a line here, but we'd submit that when 40 to 60% of the class is not deceived, that goes too far. [00:06:54] Speaker 01: And again, we think it's far more than 60%. [00:06:56] Speaker 01: because you have to look at the control. [00:06:58] Speaker 01: And that's what their own expert did. [00:07:00] Speaker 01: The expert said you have to look at the control. [00:07:02] Speaker 01: And if you look at the control, she said there's no evidence that any absent class member is deceived. [00:07:08] Speaker 01: None. [00:07:09] Speaker 01: So really, it's far more than 60%. [00:07:12] Speaker 01: But I'm saying even if you interpret the evidence the way plaintiff's counsel does as opposed to their expert, you still have 40% to 60% of the class not being deceived. [00:07:22] Speaker 01: And that goes too far. [00:07:24] Speaker 01: They say that objective evidence suffices, which is certainly mostly true in state law. [00:07:30] Speaker 01: And it can be true in certain circumstances for Rule 23B3, even for Article 3, but not when the objective evidence shows that 40 to 60 percent of the class is not deceived. [00:07:42] Speaker 01: So in Lytle, in that case there was near universal deception, and the court recognized it, and it distinguished cases like Stearns v. Ticketmaster in which you had a sizable portion of the class not being deceived. [00:07:57] Speaker 01: Many class members were not misled. [00:07:59] Speaker 01: And that's the difference. [00:08:01] Speaker 01: So the question is on what side of the line does this case fall? [00:08:04] Speaker 01: And we'd say it clearly falls on the side of you should not certify the class because a great number is not deceived. [00:08:12] Speaker 01: So we respectfully submit this court should reverse. [00:08:15] Speaker 01: But at the very least, the court should remand because the district court did not address key evidence. [00:08:21] Speaker 01: Number one, the district court did not address those perception surveys showing that most of the class is not deceived. [00:08:28] Speaker 01: The court conflated materiality with deception. [00:08:32] Speaker 01: Those are two separate elements. [00:08:34] Speaker 01: The court definitely didn't address this issue of the conjoint being sufficient because they didn't raise it below. [00:08:40] Speaker 01: They called it a damages model below. [00:08:42] Speaker 01: District court called it a damages model. [00:08:45] Speaker 01: This court in Lytle called it a damages model. [00:08:47] Speaker 01: It's a damages model. [00:08:49] Speaker 01: It's not an injury model. [00:08:50] Speaker 01: Damages and injury are different, but at the very least, it'd have to run the conjoint and try to demonstrate that somehow the damages model creates injury, though it can't. [00:08:59] Speaker 01: And the district court's materiality analysis, I mean, look, our product, we don't call it 100% natural because it's 98% natural. [00:09:08] Speaker 01: The only ingredients that are not natural, the micronutrients, like every multivitamin on the market, [00:09:14] Speaker 01: But it's 98% natural. [00:09:16] Speaker 01: Court didn't grapple with that either. [00:09:18] Speaker 01: So at the very least, there has to be a remand on it. [00:09:21] Speaker 01: But respectfully, under Olean, under Lytle, under Vann, this court should reverse outright. [00:09:28] Speaker 00: What do you do with McGee? [00:09:29] Speaker 00: I mean, I think there's language in McGee that suggests that this sort of price premium idea is an injury in fact construct. [00:09:38] Speaker 01: I would say that it is not in a deceptive advertisement case. [00:09:42] Speaker 01: It depends upon the case. [00:09:44] Speaker 01: a fraud in the market, for instance, or price fixing, which is a market injury, like in the antitrust context. [00:09:50] Speaker 01: Perhaps it would. [00:09:51] Speaker 01: But in the context of deceptive advertisements, the [00:09:54] Speaker 01: sine qua non of a deceptive advertisement is deception, and that's why Lytle recognized that if a great number of the class is not deceived, you can't certify the class. [00:10:06] Speaker 01: But in any event, Your Honor, that would be an issue for another day in which there was evidence of an actual price premium that affected the entire class. [00:10:14] Speaker 01: Here, one, they haven't even run the conjoint, so they don't have evidence. [00:10:19] Speaker 01: Again, an un-executed conjoint [00:10:21] Speaker 01: could be good enough for damages, not good enough for injury. [00:10:23] Speaker 01: They haven't run the conjoint, so they don't have the evidence. [00:10:27] Speaker 01: And second, we'd submit that when their own evidence shows that half the class is not deceived, you can't infer a class-wide increase in price, because so many of the consumers are not deceived. [00:10:41] Speaker 01: How could there be a price premium across the entire class when half the class is not deceived in the least? [00:10:48] Speaker 01: So, again, that could be an issue for another day. [00:10:50] Speaker 01: It's not an issue here. [00:10:51] Speaker 01: They didn't run the conjoint. [00:10:53] Speaker 01: And the basic element of injury in a case involving deception would be there being deception. [00:11:00] Speaker 01: And there's no deception here. [00:11:05] Speaker 04: I thought Judge Smith had a question, but apparently not. [00:11:08] Speaker 04: Do you want to reserve the remainder of your time? [00:11:09] Speaker 01: I would. [00:11:09] Speaker 01: Thank you very much, Your Honors. [00:11:10] Speaker 01: You bet. [00:11:19] Speaker 02: Good morning, your honors, may it please the court, my name is Michael Reese and I am counsel for the plaintiffs in the certified class. [00:11:27] Speaker 02: I think one thing we need to start off with is what the standard is here, because all these arguments were made before, before the district court judge who considered all these arguments. [00:11:39] Speaker 02: as well as considered the reams and reams, volumes and volumes of evidence. [00:11:44] Speaker 02: There was a great deal of an evidentiary record, multiple depositions. [00:11:48] Speaker 02: Not only was it fully briefed, there were replies, sir replies, and sir sir replies. [00:11:54] Speaker 00: Did you present this price premium idea as a way to prove injury below? [00:11:59] Speaker 02: Yes, Your Honor. [00:11:59] Speaker 00: Where can you point us in the record where we'll find that? [00:12:02] Speaker 02: I believe it's in both Dr. Ingersoll's report. [00:12:06] Speaker 02: It's also in the complaint that there's always been a price premium theory for this case. [00:12:12] Speaker 02: I would just note also, I know Judge Smith in the Gonzales v. United States Immigration and Customs Enforcement Case 975 F3rd 788 pointed out, you know, we review, and I'm quoting you Judge Smith, we review for abuse of discretion the district court's class rulings. [00:12:30] Speaker 02: I'd also note this case is on all fours with two recent decisions by this court. [00:12:35] Speaker 02: Lytle is one of them, which said you do not have to execute a conjoint analysis. [00:12:41] Speaker 02: It is accepted, reliable. [00:12:44] Speaker 00: Well, I guess I need you to take head on the argument from your opposing counsel that [00:12:48] Speaker 00: That's all related to when you're using this for damages purposes, not for injury purposes. [00:12:53] Speaker 00: I need you to address that. [00:12:54] Speaker 02: Right, sure. [00:12:54] Speaker 02: So a price premium is also a measure of injury. [00:12:58] Speaker 02: So let's say that no [00:13:02] Speaker 02: You know, there's a case almost directly on point here, and it was actually authored by Judge Kristen, the Monterra versus premium nutrition case. [00:13:11] Speaker 02: And those, if you actually look at that case, it was, I believe, from 2024. [00:13:14] Speaker 02: And she wrote on multiple issues, but including class certification, and upheld and challenged the class certification, saying, if you look at the studies that were presented here, and I'm quoting from Judge Kristen's decision in Monterra, which is governing here, [00:13:30] Speaker 02: It said 56% of the respondents said that the joint use claims, and this was a product, a consumer packaged product, not very similar to one here, where the claims at issue were the claims on the front of the packaging, and there Judge Christian said, [00:13:46] Speaker 02: in denying a motion to decertify the class and upholding class certifications that this information is not 50% of the response that the joint use claims were material to the purchasing decisions. [00:13:58] Speaker 02: We have similar type of evidence here and I know [00:14:01] Speaker 02: And that was a case in which a lot of evidence was presented, just like a lot of evidence was presented here. [00:14:07] Speaker 02: Not only expert surveys, which show that a majority of consumers were deceived, but also you have internal documents. [00:14:16] Speaker 02: That was both in the Montero case as well as here. [00:14:19] Speaker 02: You have internal documents from the regulatory division at Bayer saying, do not make these claims. [00:14:25] Speaker 02: We do not agree that these natural claims should be made because there are synthetics. [00:14:30] Speaker 02: The vitamins, which are the reason people buy these products, are synthetic. [00:14:35] Speaker 03: And also there are... I want to change the subject a little bit. [00:14:38] Speaker 03: Yes, Your Honor. [00:14:40] Speaker 03: Your opposing counsel made much of the percentage of the consumers who were not deceived. [00:14:46] Speaker 03: He took it much more than the 40 to 60%. [00:14:50] Speaker 03: What's your view as to is there a cutoff? [00:14:54] Speaker 03: Is there a line? [00:14:55] Speaker 03: What's the de minimis concept here that we should take into account? [00:14:59] Speaker 02: Sure. [00:15:00] Speaker 02: Well, I don't know if there's a bright line rule. [00:15:03] Speaker 02: I do know in similar type of litigation, particularly brought between companies, a Lanham Act case. [00:15:08] Speaker 02: But I also know of one Ninth Circuit decision. [00:15:10] Speaker 02: I apologize. [00:15:11] Speaker 02: I don't have the decision off the top of my head. [00:15:13] Speaker 02: But it's the Conagra versus Brazano case from 2017. [00:15:17] Speaker 02: And even though it wasn't part of the order, it was part of the oral argument, which I was at. [00:15:23] Speaker 02: which said, you know, even 15 to 20 percent is enough to at least get past class certification. [00:15:30] Speaker 02: And here we have 55 percent. [00:15:33] Speaker 02: And so this is almost on all fours. [00:15:35] Speaker 02: I think it's actually 56 percent our experts said thought this product was made with all natural ingredients and in fact was not. [00:15:43] Speaker 02: And that's common evidence. [00:15:44] Speaker 02: Right? [00:15:45] Speaker 02: So we have to go back. [00:15:45] Speaker 02: What is this all about? [00:15:46] Speaker 02: This is not a trial. [00:15:48] Speaker 02: This is class certification which, even for classification, this is a lot of evidence that was developed and considered by the lower court. [00:15:57] Speaker 02: Deposition transcripts, internal documents, expert reports, a great deal of evidence was considered and that is why [00:16:07] Speaker 02: This court, as your honor, Judge Smith pointed out, and it's not only in the Gonzalez case, but it's all over. [00:16:14] Speaker 02: Page 24 of our brief talks about it's an abuse of discretion. [00:16:17] Speaker 02: You can only reverse class certification if it's an abuse of discretion, if there's clear error. [00:16:22] Speaker 02: That certainly does not exist here, because the district court carefully considered all the relevant evidence, read through the transcripts of [00:16:30] Speaker 02: The multiple deponents considered internal documents, considered reports from experts on both sides and said this is all common evidence. [00:16:39] Speaker 02: We're not determining one way or another who's going to win a trial because that's not the standard here. [00:16:45] Speaker 02: The standard is their common evidence and the district court [00:16:48] Speaker 02: was correct and certainly did not abuse discretion or create clear error. [00:16:52] Speaker 02: And if one thing I think is very salient about my learned colleagues' arguments, he didn't say the judge committed any type of error of law. [00:17:00] Speaker 02: He just wants to re-argue the facts. [00:17:02] Speaker 02: He wants to re-argue that, well, the interpretation that plaintiffs' counsel [00:17:06] Speaker 02: And I, the judge, give to these internal memos which talk about Bayer saying natural products are really important. [00:17:14] Speaker 02: We do not want to take natural off the label because it's important to consumers. [00:17:19] Speaker 02: Whether internal regulatory are saying do not put natural on the product because it has synthetics. [00:17:25] Speaker 02: All the vitamins in the product are synthetics. [00:17:27] Speaker 02: And even though it's not the record, I will point out there are vitamins that are made with all natural ingredients. [00:17:34] Speaker 02: So, but again, this is not part of the record. [00:17:36] Speaker 04: That's not his argument. [00:17:37] Speaker 04: He's talking about what the plaintiffs reported in their surveys, what the plaintiffs' expert testified to about this point, so. [00:17:44] Speaker 02: I understand, Your Honor. [00:17:45] Speaker 02: I apologize. [00:17:46] Speaker 02: I just wanted to respond to a comment he made. [00:17:47] Speaker 02: He said there's no such thing as vitamins made naturally, and that's just not included. [00:17:51] Speaker 04: But I don't think his argument is factual. [00:17:54] Speaker 02: Okay. [00:17:54] Speaker 02: I apologize, Your Honor. [00:17:56] Speaker 02: I missed the point. [00:17:57] Speaker 02: So, but long story short, Your Honor, and as you can see from the record here, I think it's over 1,200 pages long. [00:18:04] Speaker 02: The district court considered that, talks about this evidence at length in its opinion. [00:18:09] Speaker 02: The multiple levels of evidence, maybe levels is not the right word, but the different types of evidence. [00:18:14] Speaker 02: And pointed out said, on these issues that you need to prove for class certification, the plaintiffs do it multiple different ways. [00:18:21] Speaker 02: It's not just experts, it's also internal documents. [00:18:24] Speaker 02: Not just internal documents, but deposition testimony. [00:18:30] Speaker 02: So I guess, Your Honor, go back to your point as, you know, is there a bright line rule with respect to, is there a minimum threshold? [00:18:40] Speaker 02: There is no bright line rule, but it's certainly, this case is almost on all fours with Monterra, because the numbers show that it's equivalent to about, and I'm rounding down, actually, to be conservative, 55%, I think 56.3% is the actual number, and in Monterra, it was the same number. [00:18:57] Speaker 02: So in that case, actually went to a jury trial, [00:19:00] Speaker 02: on behalf of certified class, the plaintiffs prevailed in that case. [00:19:04] Speaker 02: And Judge Christin, in upholding the verdict, also had to come rule on class certification because, of course, class certification would be challenged at any point in the litigation. [00:19:15] Speaker 02: And it was at that point after the case had actually gone to trial as well. [00:19:24] Speaker 02: I can go through more of the record, but I think we've fully submitted [00:19:29] Speaker 02: a very thorough brief on this issue. [00:19:31] Speaker 02: I would just point out, again, the district court, there's great deference given to this district court, and there's a good reason for that. [00:19:38] Speaker 02: And I think that's actually a theme in many of the arguments that have been made before your honors today, is because they have the great burden to go through all of this information. [00:19:48] Speaker 02: They're the ones closest to the case. [00:19:50] Speaker 02: This is a case particularly involved because of the multiple depositions, internal documents, [00:19:57] Speaker 02: expert reports, and Judge Anello, who's a very learned judge, who's been on the bench, I think, over two decades, considered all that information. [00:20:06] Speaker 02: He cites this information in his order. [00:20:10] Speaker 02: His order is correct. [00:20:11] Speaker 02: It certainly is not an abuse of discretion. [00:20:13] Speaker 02: It is not clear error. [00:20:15] Speaker 02: You do not hear even defense counsel making those arguments, but that is the standard. [00:20:20] Speaker 02: And the class certification motion should not be reversed because Judge Anello did not in any way abuse his discretion. [00:20:27] Speaker 02: I could go further and say he was actually... Council, how about if I just check in? [00:20:30] Speaker 04: Do we have any further questions, Judge Smith? [00:20:33] Speaker 04: I have none. [00:20:33] Speaker 04: Okay. [00:20:34] Speaker 04: Judge Forrest? [00:20:35] Speaker 04: Do you want to wrap up, please? [00:20:37] Speaker 02: I will. [00:20:38] Speaker 02: Seeing there's no further questions, we will submit on our brief. [00:20:41] Speaker 02: But again, once you look at the standard, not only do we think Judge Anello was correct and the class should be certified, but he certainly did not abuse his discretion. [00:20:51] Speaker 02: There's no clear error. [00:20:52] Speaker 02: And under your honor's rulings, Lytle is governing. [00:20:58] Speaker 02: Monterra is governing. [00:21:00] Speaker 02: The other cases we cite, they point out the standard and that is certainly met here. [00:21:04] Speaker 02: Thank you for your honor's time and attention to this matter. [00:21:09] Speaker 04: We'll hear a rebuttal, please. [00:21:14] Speaker 01: Thank you very much, your honors. [00:21:16] Speaker 01: Notably, my colleague did not address Olin, which recognized that a great number of uninjured class members is fatal to certification. [00:21:25] Speaker 04: Excuse me. [00:21:26] Speaker 04: Bianca, would you fix the clock for us? [00:21:28] Speaker 04: Thank you. [00:21:30] Speaker 01: He did not address Olien. [00:21:32] Speaker 01: He did not address the district court decisions that interpret Olien. [00:21:36] Speaker 01: He did not address Article 3, did not address Vann, which recognized there's a constitutional dimension to these issues. [00:21:43] Speaker 03: He did not address... Let me ask you this, obviously. [00:21:46] Speaker 03: This is a lot of record in this case and so on. [00:21:49] Speaker 03: You seem to be arguing that Judge Inelo's errors, from your perspective, were not factual but legal. [00:21:56] Speaker 03: And what is your best argument that Judge Inelo [00:22:00] Speaker 03: committed legal error at this point in the proceeding. [00:22:04] Speaker 01: Three things. [00:22:05] Speaker 01: One, he did not address the fact that a great number of absent class members are not injured. [00:22:11] Speaker 01: That's legal. [00:22:12] Speaker 01: It goes precisely to 23B3. [00:22:15] Speaker 01: It goes to Article 3. [00:22:16] Speaker 03: as the Supreme Court recognized and trans... But forgive me, that's a factual issue, is it not? [00:22:23] Speaker 03: I'm asking, what legal error did he make? [00:22:26] Speaker 03: What case would you cite saying, he missed this? [00:22:30] Speaker 03: Obviously, when we look at abuse of discretion, [00:22:33] Speaker 03: Errors of law are critical. [00:22:34] Speaker 03: And I'm asking you, what error of law would you refer us to? [00:22:38] Speaker 01: One, Olin and TransUnion. [00:22:40] Speaker 01: He didn't even mention Article 3. [00:22:42] Speaker 01: There's an Article 3 issue he did not address. [00:22:44] Speaker 01: He did not address the fact there's a large number of absent class members. [00:22:48] Speaker 01: Two, he conflated deception with materiality. [00:22:52] Speaker 01: He made two issues. [00:22:53] Speaker 01: One, that's a legal error. [00:22:55] Speaker 01: Three, he did not address key evidence. [00:22:57] Speaker 01: He did not address Dr. Matthew's perception survey at all. [00:23:01] Speaker 01: This ties into Vann. [00:23:02] Speaker 01: where the court remanded because there was an exhibit that the district court did not consider. [00:23:07] Speaker 01: That exhibit showed only 18 class members out of thousands might not have been injured. [00:23:13] Speaker 01: But nonetheless, the court remanded for the district court to address that exhibit. [00:23:18] Speaker 01: Here it's not just 18 out of thousands. [00:23:21] Speaker 01: It's at least 40 to 60 percent of the class that is not injured. [00:23:24] Speaker 01: And Judge Inelo respectfully did not address that evidence at all. [00:23:29] Speaker 01: He did not cite it, did not discuss it. [00:23:31] Speaker 01: Instead, he conflated the issue of materiality with reliance. [00:23:36] Speaker 01: That is legal error. [00:23:38] Speaker 01: But also, disregarding Article 3 is legal error. [00:23:41] Speaker 01: Disregarding the precedence of this court is legal error. [00:23:44] Speaker 01: And I want to mention the case he cites 15% being enough. [00:23:48] Speaker 01: That is for a state law violation. [00:23:50] Speaker 01: That is not for 23B3. [00:23:52] Speaker 01: It is not for TransUnion. [00:23:54] Speaker 01: It is not for Article 3. [00:23:56] Speaker 04: You're now over the extra time that we've given you so could you wrap up, please? [00:23:59] Speaker 01: Unless your honors have further questions be happy to rest on the argument. [00:24:02] Speaker 04: Let me just check No, it looks like we do not. [00:24:06] Speaker 04: Thank you for your argument. [00:24:07] Speaker 01: Thank you very much. [00:24:08] Speaker 04: We'll take that matter under advisement I'm gonna take a recess for about five minutes, and then we bet be back to hear the Hageman Hyundai motor case I'll be off record for five minutes [00:24:25] Speaker 00: This court stands on recess.