[00:00:06] Speaker 02: Good morning. [00:00:06] Speaker 02: Thank you, your honor. [00:00:07] Speaker 02: May it please the court, Matthew Wessler, for the appellant. [00:00:10] Speaker 02: With the court's permission, I'd like to reserve three minutes for rebuttal. [00:00:14] Speaker 02: Shortly after certifying a class claim in this case and authorizing the named plaintiff to litigate it on behalf of absent class members, the district court granted summary judgment to the defendant Milliman and dismissed the claim for failing to meet a requirement that it called class-wide standing. [00:00:31] Speaker 02: This was error for two independent reasons. [00:00:33] Speaker 02: First, there is no such thing as class-wide standing. [00:00:37] Speaker 02: In an unbroken line of at least nine separate cases, including at least one decision and bonk, this court has repeatedly held that in a class action, standing is satisfied both pre- and post-certification, so long as the named plaintiff meets Article III's requirements. [00:00:56] Speaker 02: That clear and settled understanding accords with every other circuit [00:01:00] Speaker 02: to have considered the question, even after the Supreme Court's decision in TransUnion. [00:01:05] Speaker 02: And it also accords with Article 3 itself, which, through its cases and controversies requirement, insists only on the existence of a real controversy that will have real impact on real people. [00:01:17] Speaker 02: And where, as here, there is no dispute that the named representative has standing to prosecute the class claim on behalf of absent class members, that requirement is satisfied. [00:01:28] Speaker 02: Second, even if the district court were correct that a certified class must establish something called class-wide standing, the record evidence here was more than sufficient to do so. [00:01:39] Speaker 02: That's because it showed, based on Milliman's own policies and practice, as well as the company's employees' testimony, that a report containing a mismatched social security number associated with a specific health record is considered inaccurate. [00:01:54] Speaker 02: After looking at this evidence, the district court said that although it was indicative of an inaccuracy, that wasn't enough at the summary judgment stage because, to quote the district court, what's required is direct evidence of injury. [00:02:08] Speaker 02: In the district court's view, in other words, circumstantial evidence doesn't cut it. [00:02:13] Speaker 02: But no authority supports that view, which, if adopted, would create [00:02:18] Speaker 02: a novel special heightened rule 56 evidentiary standard that applies just to article 3 questions and nothing else. [00:02:25] Speaker 04: I don't know it's as helpful to focus on just specific phrases that the district court used. [00:02:32] Speaker 04: Moving to the second part of your argument as to assuming you had to show this, was there a genuine dispute of material facts? [00:02:42] Speaker 04: What evidence is there to show that on a class-wide basis you could look at the Social Security numbers and from that infer that there was a mismatched medical record? [00:02:53] Speaker 02: Sure. [00:02:53] Speaker 02: I'm going to answer that question. [00:02:56] Speaker 02: just bracket that there's, in our view, a large step to take to assume away the first question and go into the record evidence because we don't think it matters. [00:03:04] Speaker 02: But yes, I do want to walk through, I think it's helpful to walk through exactly what the record evidence is here. [00:03:10] Speaker 02: And it's based almost entirely on Milliman's own practice, policy, and records that are contained that it disclosed during discovery in this case. [00:03:21] Speaker 02: For starters, Milliman has conceded [00:03:23] Speaker 02: This is at page 53 of its brief to this court, among other places, that a mismatched Social Security number is, quote, a sign or, quote, a symptom of an inaccuracy. [00:03:33] Speaker 02: So that is Milliman's own position about how these mismatched Social Securities work when it comes to an inaccuracy in one of these reports. [00:03:41] Speaker 02: There is also record evidence [00:03:43] Speaker 02: And this is at the ER, the third volume, page 300 as an example, in which Milliman's own employees agree that a mismatched Social Security number is, quote, very strong indicator. [00:03:58] Speaker 02: I'm sorry. [00:03:59] Speaker 02: Let me rephrase that. [00:04:01] Speaker 02: At 300 of the ER excerpts, Milliman's employees agree that Social Security numbers are, quote, very strong indicators of accuracy. [00:04:12] Speaker 02: And the reason they're very strong indicators of accuracy is because they're the only unique identifier of a consumer. [00:04:17] Speaker 04: How about the inverse, though? [00:04:20] Speaker 02: Right. [00:04:20] Speaker 02: So the inverse of that is in the way that Milliman treats the existence of a mismatched social security number. [00:04:26] Speaker 02: This is at ER 266 to 269. [00:04:30] Speaker 02: Examples, over and over again, of Milliman's own practice being to look at social security numbers as conclusive evidence of an inaccuracy. [00:04:40] Speaker 02: So for instance, you have employees [00:04:42] Speaker 02: who are saying someone has complained about an inaccurate health record and someone within the company says, yes, these are inaccurate because we've looked at the social security numbers and they don't match the consumer. [00:04:54] Speaker 02: That's at 266 to 269. [00:04:56] Speaker 02: It's also at ER 346 in which Milliman [00:05:00] Speaker 02: employees concluded, for instance, that certain prescriptions that were associated with the consumer were erroneous. [00:05:07] Speaker 02: That's the term that the company used, because they were based on a wrong social security number. [00:05:11] Speaker 04: Aren't these situations where they're then looking into the records and trying to figure out, OK, well, are there mismatched medical records? [00:05:18] Speaker 04: I mean, the concern I would have just hearing this is that if all I know is that someone has a social security number that doesn't line up, [00:05:26] Speaker 04: How would we know, even as to one person, what's actually in the medical records until you look at it? [00:05:34] Speaker 02: Again, in Milliman's own words, they have called it the key differentiator. [00:05:38] Speaker 02: It is the piece of data that tells you whether the medical record is the consumer's or not. [00:05:44] Speaker 02: And I think that, Your Honor, in addition to just sort of the defendant's own records here, which again, we are at the summary judgment stage. [00:05:51] Speaker 02: on the question assuming you get to the second question is just is that does does that evidence permit a jury [00:05:58] Speaker 02: to draw the inference that there is an inaccuracy. [00:06:03] Speaker 02: It is possible, Your Honor, like if you were on the jury, you might conclude no, that is insufficient, and we conclude there is no inaccuracy. [00:06:10] Speaker 02: But we are at the summary judgment stage, and I think even the district judge here recognized that the mismatch in the social security number is an indication of an inaccuracy. [00:06:19] Speaker 02: And at this stage in the proceeding, that should have been sufficient to allow the question to reach a jury. [00:06:25] Speaker 02: I think it also accords just with common sense. [00:06:27] Speaker 02: If you were to ask, you know, [00:06:29] Speaker 02: just a person, whether if they had information on their report and the information that said that they had a specific health record and you looked and you saw that it was associated with somebody else's social security number, you would think that's not my information. [00:06:43] Speaker 02: That is how Milliman does it. [00:06:45] Speaker 02: It is called it the key differentiator. [00:06:46] Speaker 02: It is how it determines inaccuracies itself. [00:06:50] Speaker 04: I guess the issue again is that once the class is certified, we're talking about [00:06:55] Speaker 04: like 300,000 people in Dr. Jaffe's, you know, ring fence number and so we're going to make the, we're going to have a jury conclude that it's more likely than not that 300,000 people have mismatched medical records based on the social security information when it seems from the data just that [00:07:14] Speaker 04: This isn't like a, you know, it happens from time to time. [00:07:17] Speaker 04: It happened to Mr. Healy, but it's a fraction of the total universe of records that exists. [00:07:22] Speaker 04: So, I mean, I hear you on the circumstantial fully, you can do that. [00:07:26] Speaker 04: The issue is, is there just too much speculation associated with the proof? [00:07:30] Speaker 02: Yeah, I mean, with respect, I don't think that's a fair reading of the record. [00:07:33] Speaker 02: Milliman has identified out of those 300,000, potentially six consumers who had mismatch those security numbers but may have had accurate health records. [00:07:42] Speaker 02: So I don't think it's a fair description of the record to suggest that there's a small fraction in which there would be people who had the wrong health records associated with the wrong social security numbers. [00:07:54] Speaker 04: What evidence is there that people who had wrong social security numbers also had wrong mismatch? [00:07:59] Speaker 04: I mean, wrong records. [00:08:01] Speaker 02: Wrong records. [00:08:02] Speaker 02: That's in the record. [00:08:02] Speaker 02: There are dozens and dozens and dozens of individuals that the plaintiff submitted in the record at the summary judgment stage to demonstrate that. [00:08:09] Speaker 02: That's right. [00:08:09] Speaker 04: We're talking about 300,000 people. [00:08:11] Speaker 02: We are, but again, I would submit, Your Honor, that this is a question of proof in front of a jury. [00:08:16] Speaker 02: If Milliman is going to be able to get up and make all the arguments Your Honor is making now to argue that this is insufficient to establish an inaccuracy, and if a jury were to conclude that that is the case, then Milliman would win. [00:08:30] Speaker 02: Now, I also just want to perhaps take a step back, because these claims under the Fair Credit Reporting Act don't [00:08:36] Speaker 02: There is no strict liability for inaccuracy. [00:08:38] Speaker 02: That is only one step in the process. [00:08:41] Speaker 02: This is a reasonable procedures claim. [00:08:43] Speaker 02: And so what, in fact, the plaintiffs would need to do is not just establish the existence of an inaccuracy, but also demonstrate that Milliman failed to assure maximum possible accuracy through its procedures. [00:08:55] Speaker 02: We are not there yet, but that is a necessary step in the process to obtaining a class-wide judgment. [00:09:01] Speaker 02: Now, I would like to step back, because although we spent the last six minutes or so talking about [00:09:05] Speaker 02: the record evidence. [00:09:06] Speaker 02: It was fundamentally improper for the district court in this case to even ask that question at this stage. [00:09:14] Speaker 02: Where I started was to say, and I'd just like to spend a few minutes on this if I may, an unbroken line of binding authority from this court that the only relevant standing that matters at [00:09:26] Speaker 02: The Rule 56 summary judgment stage after a class has been certified is the standing of the named plaintiff. [00:09:32] Speaker 02: There is no dispute in this case that the named plaintiff has standing, Article 3 standing, to prosecute the class claim on behalf of all of the absent class members. [00:09:42] Speaker 02: That is all that is necessary to allow this case to proceed, and that's all that would be necessary for this court to reverse. [00:09:50] Speaker 02: The unbroken line of cases dates back more than two decades to an en banc decision from this court. [00:09:56] Speaker 02: called Bates, in which the court, and I'm just going to quote the language, said, quote, in a class action, standing is satisfied if at least one named plaintiff meets the requirements. [00:10:07] Speaker 02: That is what we have here, and that is controlling authority from this court. [00:10:14] Speaker 04: I'm not sure we've ever specifically addressed this summary judgment piece of it. [00:10:20] Speaker 04: I mean, that's the question in this case. [00:10:22] Speaker 04: I don't know that there's binding authority on that. [00:10:24] Speaker 04: There's authority one can draw inferences from and reason off of, but I'm not sure there's a case... Oh, I don't... I disagree with that, Your Honor. [00:10:31] Speaker 02: I think there is binding authority post-Bates that includes... Now, what Milliman has said is there's no case [00:10:36] Speaker 02: that has come up in the context of a Rule 23 B3 damages class action, and no case that has come up after class has been certified. [00:10:44] Speaker 02: And I think both of those are quite wrong. [00:10:47] Speaker 02: This court's decision in Bersagno, 844 F3rd at 1121, this court's decision in Friken, 979 F3rd, 644, and this court's decision in Gutierrez are but some of the examples of cases that were B3 damages classes, just like this one, [00:11:04] Speaker 02: in which district courts certified the class, just like this one, and in which a defendant challenged standing after class certification. [00:11:12] Speaker 02: Freakin', Your Honor. [00:11:12] Speaker 04: How about TransUnion, though? [00:11:14] Speaker 04: I mean, you haven't discussed that yet, but that's all over the briefs. [00:11:17] Speaker 02: Sure. [00:11:19] Speaker 02: Yes. [00:11:19] Speaker 02: So the only authority that Milliman relies on, it hasn't identified a single case from this court in which the rule has been anything other than what I've said. [00:11:27] Speaker 02: All it says is that TransUnion has somehow silently overruled this court's line of cases [00:11:34] Speaker 02: and set out a different rule that absent class members are required to establish their personal standing at some point up through until trial. [00:11:43] Speaker 02: There is nothing in the Supreme Court's decision in TransUnion that supports that novel rule. [00:11:48] Speaker 02: In fact, what the Supreme Court said in TransUnion is fully consistent with what this court has said, which is the relevant point at which absent class member standing matters is after judgment when individual class members come in and seek their own individual relief. [00:12:04] Speaker 02: That comes from the decision itself, and it is also consistent with how this court understood the issue in Ramirez versus TransUnion before it reached the Supreme Court. [00:12:16] Speaker 02: That's exactly what this court said, and that part of the decision from the Supreme Court on TransUnion was affirmed. [00:12:24] Speaker 02: The court said exactly the same thing that this court did. [00:12:26] Speaker 02: I think that also is just a court's also, Judge Bresch, just to put a kind of final point on it, [00:12:33] Speaker 02: The only circuit to have addressed this precise issue since TransUnion, which is the Third Circuit in a case called Huber, the defendant made exactly the same argument that Milliman is making here, which is TransUnion somehow changed the game. [00:12:47] Speaker 02: The Third Circuit rejected that argument and said it fundamentally misapprehended TransUnion, which did not address this precise question, but what it said was fully consistent with the rule that every circuit has adopted, which is that absent class member standing does not matter [00:13:04] Speaker 02: until after judgment when they come in to seek their own individualized relief. [00:13:08] Speaker 02: Unless the court has further questions, I reserve the rest of my time for rebuttal. [00:13:12] Speaker 04: Okay, thank you. [00:13:21] Speaker 01: May I please the court? [00:13:21] Speaker 01: My name is Nathaniel Garrett and I represent Milliman. [00:13:25] Speaker 01: So just to take a step back, we agree there are two distinct issues in this case. [00:13:29] Speaker 01: The first is I think a relatively important and unsettled issue about what a certified class must prove in summary judgment. [00:13:36] Speaker 01: Council just told you there's an unbroken line of cases holding that a certified class in summary judgment doesn't need to prove standing. [00:13:43] Speaker 01: That's wrong. [00:13:44] Speaker 01: And I want to get to the second question first, but I do want to say this. [00:13:49] Speaker 01: It's funny, actually. [00:13:49] Speaker 01: I watched the Ramirez versus Trans-Union argument the other day from the Ninth Circuit, and a very similar argument was made on the very same cases. [00:13:58] Speaker 01: Council for the plaintiff said, under Bates and this line of authority, class members don't need to prove standing at trial. [00:14:04] Speaker 01: You can rely on the class rep. [00:14:08] Speaker 01: And both Olin and Ramirez, Olin the on-bank case, rejected that argument. [00:14:13] Speaker 01: They said Bates is an injunctive relief class. [00:14:16] Speaker 01: That doesn't tell you what a damages class must prove. [00:14:20] Speaker 01: And in any event, and more importantly, that's about class certification, which isn't a mayor's determination. [00:14:25] Speaker 01: It's a determination about how the case should proceed. [00:14:29] Speaker 01: So there are, we submit, and I can address it, several cases that have anticipated this scenario of what would happen in summary judgment. [00:14:38] Speaker 01: And in fact, they suggest that we're right. [00:14:40] Speaker 01: that this is a determination for summary judgment. [00:14:43] Speaker 01: But I want to jump to the second question quickly, because that's where a lot of the time was spent about the evidence. [00:14:48] Speaker 01: I think counsel made a rather remarkable concession this morning when he said this case is based almost entirely on Milliman testimony. [00:14:56] Speaker 01: That is not how this case was tried. [00:14:59] Speaker 01: This case was certified based on a representation by plaintiff's counsel. [00:15:03] Speaker 01: They had submitted this report from Mr. Jaffe. [00:15:06] Speaker 01: And we said, well, that report doesn't tell you if the class members have standing. [00:15:10] Speaker 01: And they said to Judge Kuhnauer, don't worry. [00:15:12] Speaker 01: Don't worry. [00:15:13] Speaker 01: What we're going to do is we're going to look at Milliman records, and we're going to be able to determine who had the wrong medical records sent and who didn't. [00:15:21] Speaker 01: Two years passed. [00:15:23] Speaker 01: Discovery closed. [00:15:24] Speaker 01: And I think it's fair to say Judge Kuhnauer was rather irked when he learned that they hadn't done that work. [00:15:29] Speaker 01: They hadn't looked at our records. [00:15:31] Speaker 01: They hadn't determined out of the 311,000 class members who had the wrong medical data and who didn't. [00:15:36] Speaker 01: Instead, what they said, and this is at SCR 16, when he asked them, how are you going to prove your case? [00:15:42] Speaker 01: Here's what they said. [00:15:42] Speaker 01: They said, we're going to submit Mr. Healy's story, and we're going to have Mr. Jaffe testify that 311,000 people had mismatched social security number data, and we're going to ask the jury to infer that every single member of this class had the wrong medical data shared. [00:16:00] Speaker 01: Now they say, I think recognizing the speculative leap [00:16:03] Speaker 01: that is required there. [00:16:04] Speaker 01: Now they say, well, actually, this case is mostly about Milliman records. [00:16:08] Speaker 01: So let me explain what those are. [00:16:11] Speaker 01: Out of the 311,000 people that they say had the wrong information sent, 47 not only had wrong information sent, they said had information sent that would have resulted in a denial of insurance. [00:16:26] Speaker 01: 47 contacted Milliman and said, I think there's a problem with my file. [00:16:31] Speaker 01: And they rely on [00:16:32] Speaker 01: One of those disputes and one piece of testimony from a Milliman representative. [00:16:37] Speaker 01: Here's what the Milliman representative said. [00:16:39] Speaker 01: The first thing we do is we try to get a social security number match, because that's a strong indicator you got to match. [00:16:44] Speaker 01: If we got that, that's good. [00:16:46] Speaker 01: But if we don't have a social security number, we can also do a lot of other things, including first name, last name, zip, gender, date of birth, et cetera. [00:16:56] Speaker 01: They want to take the inverse of the statement that social security number is a strong indicator to say, [00:17:02] Speaker 01: When you have a conflict, that's a strong indicator the record is wrong. [00:17:06] Speaker 03: I guess my question is why doesn't that just raise a material issue of fact? [00:17:12] Speaker 03: The wrong social security matching of wrong. [00:17:15] Speaker 01: I think because this is a class of 311,000 people. [00:17:19] Speaker 01: And so what we know is they need to create a tribal issue of fact to say whether you take class member one, class member 1,000, class member 2,000, [00:17:28] Speaker 01: The jury needs to say, based on this evidence, regardless of how you match this person, regardless of the information that was sent to an insurer, I can conclude you sent the wrong data. [00:17:38] Speaker 01: And this evidence isn't strong enough to let a reasonable juror conclude that. [00:17:43] Speaker 01: And I think that's what the district judge of 44 years was concerned about. [00:17:49] Speaker 01: Because this inverse, there's a name for this. [00:17:51] Speaker 01: It's such a common form of illogic. [00:17:53] Speaker 01: It's got its own name. [00:17:54] Speaker 01: It's called the fallacy of the inverse. [00:17:56] Speaker 01: If you're a mechanic, you have a job. [00:17:58] Speaker 01: If you're not a mechanic, you don't have a job. [00:18:00] Speaker 01: You can't take a statement and just say the inverse is also true. [00:18:04] Speaker 01: And that's particularly the case here when their own expert told us he cannot tell out of these 311,000 individuals who had the wrong medical data set. [00:18:15] Speaker 01: He said, [00:18:17] Speaker 01: It may be the wrong data. [00:18:18] Speaker 01: It may not be. [00:18:19] Speaker 01: It's at SCR 65. [00:18:20] Speaker 01: He said, I didn't look at anybody other than Mr. Healy. [00:18:23] Speaker 01: I didn't determine whether anybody has the wrong information. [00:18:27] Speaker 03: Well, counsel, you raised the issue that only 47 people contacted you about the mismatch. [00:18:34] Speaker 03: But that doesn't mean that there aren't a significant number of those 300 [00:18:39] Speaker 03: 7,000 people that just said, OK, I guess I got denied. [00:18:42] Speaker 03: That's it. [00:18:43] Speaker 01: I concede, Your Honor, for purposes of this appeal, that could be the case. [00:18:47] Speaker 01: That could be. [00:18:48] Speaker 01: I think the problem is, how does the jury figure out out of these 311,000 people that every single one of them were in that bucket? [00:18:56] Speaker 01: You can't do that. [00:18:58] Speaker 01: That's the problem. [00:19:00] Speaker 04: I mean, it starts to raise questions whether some of this is more properly addressed, frankly, a class certification, but we're not [00:19:05] Speaker 04: Obviously they're in this appeal. [00:19:06] Speaker 04: But can you address the points Mr. Wessler was making about just the legal premise that we're operating under here, which is that standing is relevant at this point? [00:19:15] Speaker 01: Absolutely. [00:19:16] Speaker 01: So we submit, and I think it's right, neither party has cited a case that involved this exact question. [00:19:23] Speaker 01: But trans-union, we think, leads to the answer. [00:19:26] Speaker 01: And I think there's some independent principles that lead to the right answer. [00:19:29] Speaker 01: Here's why trans-union, I think, leads to this answer. [00:19:31] Speaker 01: There's three lessons of trans-union. [00:19:33] Speaker 01: Number one, [00:19:34] Speaker 01: There does come a point in time when the certified class can't rely on the standing of the named class member. [00:19:40] Speaker 01: So, as I said, in Ramirez they argued, even if you go to trial, you only need to prove the standing of the named class representative. [00:19:47] Speaker 01: Supreme Court said, no, that's wrong. [00:19:49] Speaker 01: Number two, they reaffirmed the principle that standing, like other elements of the plaintiff's case, [00:19:53] Speaker 01: has to be proved with the manner and degree of evidence required at each stage of the litigation, which led them to their third holding, that if you go to trial, you need to induce evidence at trial, that you have standing to convince the jury of that. [00:20:07] Speaker 01: We think the natural implication of that is, at summary judgment, you don't have to prove your case, but you do need to create a tribal issue of fact [00:20:15] Speaker 01: on the certified class that they have standing. [00:20:19] Speaker 01: Now, even putting aside TransUnion, I think there's several reasons for this. [00:20:23] Speaker 01: One is I think the case law suggests this. [00:20:26] Speaker 01: Plaintiffs are relying on class certification cases, but there's a couple cases that I think are more relevant here. [00:20:32] Speaker 01: One is Tyson Foods, the Supreme Court decision in Tyson Foods, where the [00:20:38] Speaker 01: defendants challenged at class certification whether plaintiffs had proven an element of their claims. [00:20:45] Speaker 01: And what Tyson Food said is, if there's a failure of proof as to an element in a class, quote, courts should engage that question as a matter of summary judgment, not class certification. [00:20:56] Speaker 01: In this case, in this court's opinion in Zappos, at footnote 12, that was another case that did reaffirm the principle that only the named class member has to prove standing in class certification. [00:21:07] Speaker 01: But they said, you're not going to be done. [00:21:08] Speaker 01: You're going to have to do more later. [00:21:10] Speaker 01: And they said, quote, in opposing a motion for summary judgment, for example, plaintiffs would need to come forward with evidence to support standing. [00:21:17] Speaker 01: So I think to the extent this issue has been foreseen or forecasted, the notion was, yeah, summary judgment, there's not an exception for standing, which is what this would be. [00:21:27] Speaker 01: I mean, I don't think defendants are arguing. [00:21:30] Speaker 00: Aren't you kind of arguing the opposite in one sense? [00:21:32] Speaker 00: And that is, under normal summary judgment standards, [00:21:37] Speaker 00: You draw inferences in favor of the plaintiff. [00:21:39] Speaker 00: You can consider circumstantial evidence. [00:21:41] Speaker 00: So assuming hypothetically you're right that they need to come forward as summary judgment, here the district judge said you need direct evidence. [00:21:51] Speaker 00: And he put direct in italics, emphasizing, and didn't seem to apply the normal, usual summary judgment standard. [00:21:59] Speaker 00: So as summary judgment, what is your view of what evidence and what standards should apply in the question of standing? [00:22:07] Speaker 01: I agree with you, Your Honor, that I think circumstantial evidence can be enough. [00:22:12] Speaker 01: I think inferences have to be drawn in favor of the plaintiffs, and the question is whether that creates a tribal issue of fact. [00:22:18] Speaker 00: Now, I... And just to go back a little bit to make sure I understand the scope of your argument. [00:22:23] Speaker 00: Your argument would be that at each stage of the litigation, we're talking about a 12b6 motion for dismissal, at class certification, at summary judgment, that standing has to be established. [00:22:35] Speaker 01: No, absolutely not. [00:22:37] Speaker 00: Okay. [00:22:37] Speaker 01: Absolutely not. [00:22:38] Speaker 01: Because the difference is the reason certification matters, Your Honor, that's the sort of point in time when it changes. [00:22:46] Speaker 01: is for three reasons, really. [00:22:48] Speaker 01: But I'll start with, I think, the most powerful one, which is that's the point in time when the plaintiffs are added to the case as parties and their claims are added to the case. [00:22:58] Speaker 01: That's when the court gains jurisdiction over the class members to render dispositive judgment against them. [00:23:05] Speaker 01: And we know from cases like Valley Forge that the exercise of judicial power is limited to litigants withstanding. [00:23:12] Speaker 01: So when they come in with a complaint, no, they're not part of the case. [00:23:16] Speaker 00: The individual. [00:23:17] Speaker 01: Exactly. [00:23:18] Speaker 00: The name plaintiff. [00:23:18] Speaker 00: Exactly. [00:23:19] Speaker 01: And a class certification. [00:23:21] Speaker 01: Obviously, this is an area of much development recently, but at least now we concede in the Ninth Circuit, only the name plaintiff standing is required. [00:23:30] Speaker 01: They're not part of the case yet. [00:23:31] Speaker 01: Once it's certified and they are part of the case, then the obligation, they do have to prove standing with the manner and degree of evidence required [00:23:41] Speaker 01: at that stage of litigation, whether it's summary judgment or trial. [00:23:45] Speaker 01: I think the other reason that has to be right, Your Honor, is the rules enabling it. [00:23:49] Speaker 01: We know Rule 23 is a procedural device that doesn't enlarge or abridge the party's substantive rights. [00:23:57] Speaker 01: And we know from Dukes that that means we're entitled to prove our individual defenses to all the plaintiff's claims, even in a class action. [00:24:06] Speaker 01: What I think defendants are saying is we can challenge everything else about the plaintiff's case at summary judgment. [00:24:12] Speaker 01: In other words, if this was a fraud case, [00:24:14] Speaker 01: And just imagine, a certified class on a fraud case. [00:24:17] Speaker 01: We could make a summary judgment motion about there was no misrepresentation, so the class fails. [00:24:24] Speaker 01: There's just an exception for standing. [00:24:26] Speaker 01: That's something you just punt later. [00:24:28] Speaker 01: It's a nicety to be dealt with at the end of the case. [00:24:31] Speaker 01: I think that has to violate the Rules Enabling Act. [00:24:34] Speaker 01: We have a right at summary judgment to challenge their case on the merits. [00:24:38] Speaker 01: And there shouldn't be an exception for standing. [00:24:42] Speaker 01: And I think the third reason is, [00:24:44] Speaker 01: It's not just a procedural device, it's an aggregation tool. [00:24:47] Speaker 01: It's the modern form of Joinder, Rule 23. [00:24:51] Speaker 01: And we know the Supreme Court has now told us that in other aggregation cases, like intervention, when you add plaintiffs and claims to the case, they need to prove standing when they come into the case. [00:25:02] Speaker 01: That's town of Laurel. [00:25:03] Speaker 01: They seek their own damages. [00:25:04] Speaker 01: When they come into the case, they have to prove their own standing. [00:25:08] Speaker 01: And we submit that's what happens at certification, when they're added to the case. [00:25:12] Speaker 04: What happens, I mean, on your view, [00:25:16] Speaker 04: What happens if we're at this point and it seems that there are some people within this class who would have standing but maybe not, there's not a genuine dispute of fact as to others of them. [00:25:30] Speaker 04: What is the district court supposed to do? [00:25:32] Speaker 01: Yeah, I've thought a lot about that. [00:25:34] Speaker 01: I think in the ideal case, this all flows naturally in the sense that a class certification, they come up with a plan to have common evidence so that there's predominance, right? [00:25:46] Speaker 01: at the class certification stage, come up with a plan where you're going to be able to show standing in a common way. [00:25:51] Speaker 01: You don't have to prove it. [00:25:53] Speaker 01: It's not a merits determination. [00:25:54] Speaker 01: But you've got to come up with a plan. [00:25:56] Speaker 01: And so let's say they do that. [00:25:58] Speaker 01: Then they get to summary judgment. [00:25:59] Speaker 01: And we say, OK, now show us the evidence and create a triable issue of fact. [00:26:03] Speaker 01: And then you get to trial. [00:26:04] Speaker 01: And you prove the evidence. [00:26:06] Speaker 01: This case is a little bit odd. [00:26:07] Speaker 01: Because as I said before, they promised common evidence at class certification that then they abandoned later on. [00:26:14] Speaker 01: I think in that circumstance where you have evidence that certain class members don't have standing, the question is, is there a way for separating them? [00:26:25] Speaker 01: If there was a way for separating those individuals out in a way where common questions would still predominate, maybe the court could try to fashion a situation there. [00:26:37] Speaker 01: The problem is here, they are still relying on common evidence. [00:26:41] Speaker 01: The Jaffee report, they still want [00:26:44] Speaker 01: all 311,000 individuals to go forward on the same body of evidence. [00:26:50] Speaker 01: And so they haven't given us a way to cut the wheat from the chaff. [00:26:54] Speaker 01: That's the problem. [00:26:56] Speaker 01: In another case where the plaintiffs were upfront about saying there's a certain number of people that don't have standing, I think what Olin suggests is [00:27:07] Speaker 01: The court needs to figure out whether that means there's a predominance problem or whether there's at least a way down the road for winnowing those people out. [00:27:16] Speaker 01: Does that make sense? [00:27:17] Speaker 04: Yeah, thank you. [00:27:21] Speaker 01: Happy to give the court back time unless there are any further questions. [00:27:25] Speaker 01: Okay. [00:27:26] Speaker 01: Thank you. [00:27:35] Speaker 02: Thank you, Your Honor. [00:27:35] Speaker 02: Just a few brief points in rebuttal. [00:27:38] Speaker 02: I didn't hear any meaningful effort to distinguish the line of cases that this court has adopted over the last 20 years, establishing that the only party standing that matters in a class action, either pre-certification or post-class certification, is the named plaintiff. [00:27:58] Speaker 02: Judge Bress, you asked for several cases that dealt with this issue. [00:28:02] Speaker 02: I think the best case is probably this court's decision in Gutierrez. [00:28:06] Speaker 02: That case went past where this case was. [00:28:10] Speaker 02: That case went all the way through to a trial and a judgment, a class-wide judgment against the defendant. [00:28:18] Speaker 02: And after judgment, the defendant in that case appealed and argued that [00:28:23] Speaker 02: the class lacked standing, and the case was non-justiciable under Article 3. [00:28:29] Speaker 02: And this court said, in that case, the only standing that matters, even through trial, is the named plaintiffs. [00:28:36] Speaker 02: And there's a reason why that makes sense, because although you heard my friend on the other side talk about the point of class certification as somehow aggregating all of the class's claims, that is not what is happening here. [00:28:48] Speaker 02: Rule 23 authorizes one plaintiff, the named plaintiff, [00:28:53] Speaker 02: to prosecute a single class claim. [00:28:56] Speaker 02: That's the term it uses in the rule, a class claim. [00:29:00] Speaker 02: And so it is the named plaintiff standing that matters to prosecute that class claim. [00:29:05] Speaker 02: This is not a situation, Rule 23 and class actions are not at all like intervention because no absent class member comes forward and asks to enter the case to litigate their own claim. [00:29:17] Speaker 02: It is a classic form of representative action and that's why the inquiry has [00:29:21] Speaker 02: in this court and everywhere else, always trained on the named plaintiff. [00:29:26] Speaker 02: Unless the court has any further questions. [00:29:29] Speaker 04: Okay, thank you. [00:29:30] Speaker 04: We thank both counsel for the briefing and argument. [00:29:32] Speaker 04: The case is submitted.