[00:00:02] Speaker 01:
So our last case on calendar is Nolan versus People Connect 24-3894.

[00:00:07] Speaker 01:
Each side will have 20 minutes.

[00:00:14] Speaker 00:
Good morning, your honors, and may it please the court.

[00:00:16] Speaker 00:
Ian Gershengorn on behalf of the defendant People Connect.

[00:00:18] Speaker 00:
I'd like to reserve four minutes for rebuttal.

[00:00:21] Speaker 00:
The class certification here must be reversed for at least three principal reasons.

[00:00:26] Speaker 00:
First, the district court wrongly held that People Connect uses a name for purposes of advertising merely because that name is searchable in the classmates.com database.

[00:00:35] Speaker 02:
Why isn't that a merits issue?

[00:00:38] Speaker 00:
It's not a merits issue, Your Honor.

[00:00:40] Speaker 00:
two straight reasons.

[00:00:41] Speaker 00:
First, in Vann, this court set out the standard, and the standard is, did the district court address it in the certification order, and is it relevant and proper to address it in the context of class certification?

[00:00:56] Speaker 00:
And both of those are met here.

[00:00:57] Speaker 02:
So with respect to... Well, you did address it, but the question really is, it certainly is known in theory that what you stated is not the case.

[00:01:07] Speaker 02:
And they may lose on that.

[00:01:10] Speaker 02:
But why are we looking at their theory of the case to decide whether the class was correct?

[00:01:16] Speaker 00:
Because for two reasons, Your Honor.

[00:01:19] Speaker 00:
First, because the district court actually addressed it in the class certification.

[00:01:22] Speaker 00:
So why does that matter?

[00:01:23] Speaker 00:
Because that's what this court said the test is in van.

[00:01:26] Speaker 00:
The district court addressed it.

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And second, because it is central to class certification.

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In the event that it is not searchable, no one has yet contended, and certainly the district court did not find,

[00:01:37] Speaker 00:
that the class could go forward.

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And indeed, it could not.

[00:01:41] Speaker 00:
The individualized questions into whether somebody had searched would overwhelm and defeat any superiority or predominance requirement.

[00:01:51] Speaker 00:
Sorry, sorry.

[00:01:52] Speaker 01:
I think you just jumped from searchable to searched.

[00:01:54] Speaker 01:
Are we talking about searchable or searched?

[00:01:56] Speaker 00:
So the question is under the statute, is it enough that you be in the database and thus searchable?

[00:02:06] Speaker 00:
Or instead, in order to state a claim under the 3344, do you have to be searched?

[00:02:11] Speaker 00:
That is the question.

[00:02:13] Speaker 02:
I thought that the district court said that you would drop that theory.

[00:02:16] Speaker 00:
So, Your Honor, I'd like to make a couple of points on that, because it's different than the is it here.

[00:02:21] Speaker 00:
So the first question is, is it merits?

[00:02:24] Speaker 00:
I think the answer on that is no, it's not.

[00:02:26] Speaker 00:
But the Supreme Court has said, and what this court has said, is sometimes merits is relevant when it goes to whether a class can be certified.

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So that's the first question.

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The second question is, did the court say, and was it correct in saying, that we had waived that?

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And I think any fair reading of the record is the answer to that is no.

[00:02:44] Speaker 00:
So I'd like to address it directly.

[00:02:46] Speaker 00:
as to what happened, and then say why I don't think it should matter, the district court said that.

[00:02:53] Speaker 00:
So you'll notice that the district court said that, but cited to nothing in the record.

[00:02:57] Speaker 00:
I'd like to cite the court to the two places in the record where this was relevant.

[00:03:01] Speaker 00:
So the first is ER 515, where counsel said, our opposition is not based on the argument, we're preserving it.

[00:03:10] Speaker 00:
that you have to be searched.

[00:03:12] Speaker 00:
So not only was it not waived, it was literally preserved.

[00:03:16] Speaker 02:
Your argument about what?

[00:03:18] Speaker 02:
About the class.

[00:03:19] Speaker 00:
about whether this distinction, whether you have to have actually been searched or whether it's enough that you're on the database.

[00:03:26] Speaker 00:
I'm sorry.

[00:03:26] Speaker 02:
Well, go ahead.

[00:03:27] Speaker 02:
I thought that we're preserving it meant we're preserving it for the merits, but not with regard to the claims.

[00:03:31] Speaker 00:
So, Your Honor, I don't think that's a reasonable reading of that.

[00:03:35] Speaker 00:
And the same thing, Your Honor, happened later at 499 of the record where it says, I want to be clear, Your Honor, our opposition assumes

[00:03:43] Speaker 00:
that the standard is something, whether it's searchable, as opposed to whether it had been searched.

[00:03:47] Speaker 00:
Remember, the district court had already rejected it.

[00:03:50] Speaker 00:
So it'd be quite nervy, I think, for district court counsel to say, Your Honor, we're here to re-argue, because it's central to class certification, the thing you've just rejected.

[00:03:58] Speaker 00:
But even if Your Honor disagrees with that, the district court addressed it not once, but twice.

[00:04:04] Speaker 00:
So on page five of his ruling at ER 15,

[00:04:10] Speaker 00:
The district court said, I adhere, after laying out the use argument, which is what we're talking about, whether you have to actually have used it for purposes of advertising, he said, I adhere to my prior ruling.

[00:04:22] Speaker 00:
So he said that.

[00:04:23] Speaker 00:
Then at page 17 of his class certification opinion, again, after saying, just as your honor said,

[00:04:28] Speaker 00:
you look like you've abandoned it, but I address it in all of its glory," and then addressed it in the next two pages.

[00:04:34] Speaker 02:
So the district court had a pure legal question that is central to... Can you tell me where in Vann it says that if the district court addresses it, that's... Yes, Vann says... I know where.

[00:04:43] Speaker 00:
Yeah.

[00:04:44] Speaker 00:
Can I quote you the language, Your Honor?

[00:04:46] Speaker 00:
It says, Vann says the court can review, quote, issues that form part of the district court's class certification decision, close quote,

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and quote, anything that properly enters the decision whether to certify a class.

[00:04:59] Speaker 02:
It doesn't deal directly with whether the question

[00:05:03] Speaker 00:
It says anything that forms part of the district court's class certification decision.

[00:05:07] Speaker 02:
But it doesn't say, if the district court inappropriately looked at the merits, that doesn't matter.

[00:05:12] Speaker 00:
So Your Honor, the reason why I don't think the district court is certainly, like, we're not contesting that a merit... But I just want to know what Van said.

[00:05:18] Speaker 02:
Van does not directly address what you just said.

[00:05:21] Speaker 00:
I think actually the thing I said does address it, Your Honor, but even if not, I think the rule for the court is,

[00:05:26] Speaker 00:
And this is dating to the Supreme Court in Wal-Mart.

[00:05:29] Speaker 00:
I do think Van said it, but whether it did or didn't, the Supreme Court has said it in Wal-Mart, which is that oftentimes, the Court of Appeals and the District Court have to address merits decisions that are central to- That's a different point.

[00:05:42] Speaker 02:
That's a different point.

[00:05:43] Speaker 02:
What you said is if the District Court addressed it, then we have to take it into account.

[00:05:46] Speaker 02:
No, Your Honor.

[00:05:48] Speaker 00:
So I think what- That's what you said.

[00:05:49] Speaker 00:
So your honor, I think what this court has said is that it forms part of the district court's class certification decision.

[00:05:55] Speaker 00:
I think that's what I said, and I think that's right.

[00:05:57] Speaker 00:
It's not that it shows up in his order.

[00:06:00] Speaker 00:
It's that it forms part of the class certification decision.

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And that is exactly what the district court did here.

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And of course, it has to be that.

[00:06:06] Speaker 02:
I should say, because it's an abusive discretion standard, if he took this into account and he shouldn't have, that would be an abusive discretion right there.

[00:06:15] Speaker 00:
I'm sorry, Your Honor.

[00:06:18] Speaker 00:
I'm not sure I understood your Honor's question.

[00:06:21] Speaker 00:
The question about whether it's abuse of discretion, I'm sorry.

[00:06:24] Speaker 01:
That would be why it matters if the district court relied on it wrongly.

[00:06:28] Speaker 00:
So I don't think that's right, Your Honor.

[00:06:30] Speaker 00:
I think that the question, the legal question about whether or not you had to have actually been searched versus searchable,

[00:06:41] Speaker 00:
is was essential to and the district court viewed it as, essential is too strong, was relevant to the class certification decision.

[00:06:51] Speaker 00:
Therefore, under 23F that comes up because it was in the order and therefore becomes part of the

[00:07:01] Speaker 00:
the issues before the court that are reviewed de novo.

[00:07:04] Speaker 00:
That's a statutory question.

[00:07:05] Speaker 00:
And of course, it's critical, I don't think.

[00:07:07] Speaker 02:
I'm sorry, what's a statutory question?

[00:07:09] Speaker 00:
The question of whether, under 3344, it is enough to have been on the database and searchable, or whether you actually have to have been searched.

[00:07:18] Speaker 00:
That's a pure question of law.

[00:07:19] Speaker 02:
All right, so why don't you go to the merits of that question.

[00:07:21] Speaker 00:
OK, so thank you, Your Honor.

[00:07:23] Speaker 00:
So I'd like to make four points on that, if I could.

[00:07:26] Speaker 00:
First, the text of the statute is clear.

[00:07:29] Speaker 01:
It talks about whether something- I'm sorry, can I interrupt you before?

[00:07:31] Speaker 01:
There's an intermediate thing between whether we reach it and what the answer is on the merits.

[00:07:37] Speaker 01:
Because I'm still trying to understand why it matters to whether the class can be certified.

[00:07:43] Speaker 01:
Sure.

[00:07:43] Speaker 01:
Because if you're right that they have to have been searched, and you're right that there is no record of whether anyone was searched,

[00:07:51] Speaker 01:
then the whole class just loses.

[00:07:53] Speaker 01:
But there's still a class.

[00:07:54] Speaker 00:
So I don't think that's correct, Your Honor.

[00:07:55] Speaker 00:
I think that it is not the case that the class loses.

[00:07:59] Speaker 00:
It's that the class can't be certified.

[00:08:01] Speaker 00:
If they were up here saying, look, we lose if we lose this legal question, that would be a different case.

[00:08:07] Speaker 00:
They, of course, can't say that because, among other things, they would be throwing under the bus the people in the class who have claims to have been searched.

[00:08:14] Speaker 00:
That would raise all sorts of adequacy, typicality, conflict questions.

[00:08:18] Speaker 00:
They cannot come up here, Your Honor, and say, if we lose this question, we lose.

[00:08:23] Speaker 00:
What they could say, and what we think is true, is if we lose this question, the class cannot be certified.

[00:08:29] Speaker 00:
And that's exactly why it's a question that is not about the merits, why it's not a pure merits question, why it goes to the heart of class certification.

[00:08:39] Speaker 01:
But should that suggest that the

[00:08:40] Speaker 01:
few people who have some friend who said, I searched you are actually going to sue on their own.

[00:08:46] Speaker 01:
And so there's some risk that they're losing their, their chance to bring a whole suit for that.

[00:08:50] Speaker 00:
So your honor, just to be clear, this is what plaintiff herself alleges that she has been searched at paragraph one 50.

[00:08:56] Speaker 00:
So like, you know, whether what is before the court, like,

[00:09:01] Speaker 00:
They have not yet made the case that, you know, there could be a search class action, but that would be open to them on remand.

[00:09:08] Speaker 00:
We think it's quite dubious that they'd be able to do so.

[00:09:10] Speaker 01:
But it's precisely precisely why... I mean, that seems individualized though, right?

[00:09:13] Speaker 01:
So that's why it seems like someone who's going to come in and say, I know I was searched because my friend told me.

[00:09:20] Speaker 01:
That seems very individualized.

[00:09:21] Speaker 01:
That would have to be brought in an individual suit.

[00:09:23] Speaker 01:
It seems like instead we've got a class trying to bring this claim.

[00:09:27] Speaker 01:
And if they actually turn out to need to have been searched, I think they're going to lose.

[00:09:31] Speaker 01:
And if they just need to have been searchable, then we have other issues about whether they're going to win, but they're not on this problem.

[00:09:36] Speaker 00:
Well, but Your Honor, I think the other issues they're going to win, that Your Honor said, is exactly that you can't certify class.

[00:09:42] Speaker 00:
That's why.

[00:09:42] Speaker 00:
Well, why?

[00:09:44] Speaker 01:
But this isn't the hurdle.

[00:09:45] Speaker 01:
I mean, you might have some other argument.

[00:09:46] Speaker 01:
But if all you have to be is searchable, what's the problem with certifying the class?

[00:09:50] Speaker 00:
No, Your Honor, there's no, well, we have lots of other reasons that I can circle those, but not this one.

[00:09:55] Speaker 00:
But the reason why this goes to predominance is precisely because if we are right on that, then it's not that they lose, it's that the class can't be certified.

[00:10:06] Speaker 00:
And I just want to be clear.

[00:10:07] Speaker 00:
But that's what you're saying.

[00:10:08] Speaker 02:
You keep saying that, but the question is why not?

[00:10:11] Speaker 00:
Well, I would say it can't be certified on this record because

[00:10:13] Speaker 00:
they haven't made any claim.

[00:10:15] Speaker 00:
I just want to make clear, I do want to get to some of the other issues.

[00:10:18] Speaker 02:
I'm sorry, I didn't understand that answer at all.

[00:10:20] Speaker 00:
Yeah, so I want to answer it this way, Your Honor.

[00:10:23] Speaker 00:
I want to be clear that a searched class action against databases like this has been

[00:10:30] Speaker 00:
certified in other cases against other defendants, and here they made no effort below to make the case.

[00:10:37] Speaker 00:
So it would be open to them to argue, we think they would lose, but to argue that you could bring a search to class action.

[00:10:43] Speaker 02:
Okay, but they're not arguing that.

[00:10:46] Speaker 02:
They're arguing, they're underlying

[00:10:48] Speaker 02:
legal theory is that the statute would recognize a cause of action on behalf of people whose photos are in this database and could be searched.

[00:11:02] Speaker 02:
And you say that's not true.

[00:11:04] Speaker 02:
That's wrong about the statute.

[00:11:06] Speaker 02:
But that is their legal theory.

[00:11:08] Speaker 02:
That's their merits argument.

[00:11:10] Speaker 00:
It is their merits argument.

[00:11:11] Speaker 02:
The question is, and their class conforms to that merits argument.

[00:11:17] Speaker 00:
Yes, Your Honor.

[00:11:17] Speaker 02:
All right, so what is wrong with it with regard to the class action standards?

[00:11:22] Speaker 02:
Because if they lose... Excuse me, let me just finish.

[00:11:27] Speaker 02:
Why doesn't that issue predominate?

[00:11:29] Speaker 02:
Now, they may lose, but it seems like a issue that cuts across the class as to both searched and non-searched people.

[00:11:38] Speaker 00:
So, Your Honor, the reason is because if they lose that, the answer is not that they lose and the

[00:11:45] Speaker 00:
and the case goes away, it is that the issue of whether or not you're searched predominates over everything else.

[00:11:57] Speaker 00:
So I get that I'm not persuading the court in this.

[00:11:59] Speaker 00:
I think I'm right, but I don't want to lose time as moving, and I don't want to lose track of the other issues.

[00:12:05] Speaker 00:
So I strongly

[00:12:07] Speaker 00:
think that the Supreme Court has said merits is sometimes relevant.

[00:12:09] Speaker 00:
The District Court recognized that it's relevant, which is why he twice addressed it in the class certification order.

[00:12:15] Speaker 00:
Everybody understood that if they lose this issue, it's not that the case loses.

[00:12:19] Speaker 00:
It's not a merits issue in that sense.

[00:12:21] Speaker 00:
It's that the class cannot be certified.

[00:12:23] Speaker 00:
But I don't want to lose sight of the other issues.

[00:12:25] Speaker 00:
And so let me pivot to the van issues, if I could, which is that the District Court

[00:12:30] Speaker 00:
had having recognized that there are members of the class who are not who would have would not have meritorious claims.

[00:12:38] Speaker 00:
didn't come up with a workable plan to winnow out those claims, including, for example, people who are not readily identifiable from their names and for people who have consented.

[00:12:48] Speaker 00:
Now, in this court, what the plaintiffs have said is, look, we'll just have affidavits.

[00:12:54] Speaker 00:
Well, I mean, just to be clear about a couple of things.

[00:12:56] Speaker 00:
First of all, the district court adopted no plan.

[00:12:59] Speaker 00:
He said what there would be is at a later prove-up stage, we may have who knows what.

[00:13:04] Speaker 00:
It just said we'll have at a later prove-up stage.

[00:13:07] Speaker 02:
But why isn't this problem

[00:13:10] Speaker 02:
essentially a question of damages allocation.

[00:13:15] Speaker 02:
I'm sorry.

[00:13:15] Speaker 02:
May I finish?

[00:13:17] Speaker 02:
Yes, please.

[00:13:20] Speaker 02:
And we know that there is lots of case law in this circuit and elsewhere that you can have a predominance on the liability issue before and without regard to whether

[00:13:35] Speaker 02:
the damages may be more discreet.

[00:13:38] Speaker 02:
And here, they would be a little discreet.

[00:13:39] Speaker 02:
They wouldn't be that discreet.

[00:13:40] Speaker 02:
But they wouldn't have to be individualized one by one.

[00:13:44] Speaker 02:
You'd just have to find out.

[00:13:46] Speaker 02:
But leaving that aside, why isn't this just a damages problem?

[00:13:49] Speaker 00:
Because the issues we're identifying, Your Honor, go to liability, not damages.

[00:13:53] Speaker 00:
The question of whether you are readily identifiable and the question of whether you have consented are elements of the offense.

[00:13:59] Speaker 00:
They are not damages issues.

[00:14:01] Speaker 00:
And that was why the district court precisely was wrong in footnote 12 when he said,

[00:14:05] Speaker 00:
oh, this is akin to liability and damages.

[00:14:08] Speaker 00:
He noticed he said akin to because, of course, it is not the same as liability and damages.

[00:14:13] Speaker 00:
The issues we are talking about, whether you are readily identifiable and whether you have consented, those are elements of the claim that you have to prove to establish liability.

[00:14:23] Speaker 00:
So I think what we are in is a situation in which plaintiffs are proposing without any detail.

[00:14:29] Speaker 02:
The consent, yes, because it's part of the definition of the class.

[00:14:35] Speaker 02:
Identifiable seems to be a question of whether you're injured, which is the trigger for the damages, right?

[00:14:44] Speaker 00:
So, Your Honor, I think actually under 3344 as a technical matter, injury is actually an element of the claim.

[00:14:50] Speaker 00:
But even apart from that, separate from injury, readily identifiable is actually what you have to show that your right of publicity is that it's you.

[00:14:58] Speaker 00:
That's not a question of

[00:15:00] Speaker 00:
That's a question of in order to establish liability, that's what Abdul-Jabbar is all about, right?

[00:15:05] Speaker 00:
You have to establish that Kareem Abdul-Jabbar and Lu Al-Sinder are the same person.

[00:15:09] Speaker 00:
That's the claim.

[00:15:10] Speaker 00:
That's not an element of damages.

[00:15:13] Speaker 00:
So that, I think, just isn't correct under California law.

[00:15:17] Speaker 03:
And so I think what the district court- Well, you started to say that it wasn't enough for them to provide an affidavit or a sworn statement, that that was not enough.

[00:15:27] Speaker 03:
Why was that enough?

[00:15:28] Speaker 00:
OK, so I'd like to address that.

[00:15:29] Speaker 00:
So affidavits, of course, are often a part of class practice.

[00:15:33] Speaker 00:
And I guess what I'd like to distinguish is say something about the legal framework and then talk about it in this particular case.

[00:15:39] Speaker 00:
So affidavits have been, as this court said in Brasenio, part of a case in situations in which

[00:15:46] Speaker 00:
For example, the testimony is largely unrebutted and is not going to be rebutted, or and or when the total liability is fixed and you're basically just allocating people, figuring out which plaintiffs get the money, but the damages are fixed for the total.

[00:16:03] Speaker 00:
So there's no Seventh Amendment right.

[00:16:04] Speaker 00:
What Asacol says, right, from Judge Kayada's opinion in the First Circuit, is yes, that's correct, but it's different

[00:16:12] Speaker 00:
When the elements of the claim are going to be contested, then you can't rely on an affidavit.

[00:16:17] Speaker 00:
Just like at summary judgment, you can, because it may not be contested.

[00:16:21] Speaker 00:
But at trial, of course, you can't rely on an affidavit.

[00:16:25] Speaker 00:
That would violate our Seventh Amendment rights.

[00:16:27] Speaker 02:
But for example, with regard to the consent issue, which basically turns on whether or not these people were registered.

[00:16:34] Speaker 02:
You must have records about who was registered.

[00:16:36] Speaker 02:
It shouldn't be all that difficult if they say, I was registered, for you to run that person through your records of who was registered and say they were Aurora.

[00:16:45] Speaker 00:
So, Your Honor, I think what the record shows is actually that it's much more complicated.

[00:16:48] Speaker 00:
And let me say one that I'd like to get back to Judge Mendoza's question, if I might.

[00:16:52] Speaker 00:
The reason why it's more complicated is that people who register, and this is in the record, the numbers are sealed, so I can't say them, but they're in the briefs and you've seen them, is that

[00:17:02] Speaker 02:
a substantial number of people claim to be part of a class, but then the names they use don't match up with the class.

[00:17:18] Speaker 02:
I consented, I didn't register and you look through it and it's the opposite problem actually because we're looking for the people who did register, not the people who did register.

[00:17:30] Speaker 00:
So Your Honor, these are people who have claimed, have registered and claimed to be part of the class but when we look at the name they assigned to our site, it says... Wait a minute, I thought if they registered they consented and then they're out of the class.

[00:17:43] Speaker 02:
Correct.

[00:17:43] Speaker 02:
So it's not the people who did register, it's the people who didn't register who are in the class.

[00:17:47] Speaker 00:
Well, we need to figure out, Your Honor, who registered and thus consented and thus is out of the class.

[00:17:52] Speaker 00:
That's the whole point.

[00:17:53] Speaker 00:
Right.

[00:17:53] Speaker 02:
So those people aren't going to be sending you affidavits.

[00:17:55] Speaker 02:
It's the people who didn't register.

[00:17:57] Speaker 00:
No.

[00:17:58] Speaker 00:
So, Your Honor, it's the people who are sending us affidavits that say they didn't register, and then we need to check those and see whether, in fact, they registered.

[00:18:06] Speaker 00:
And that's the thing that's very hard to do.

[00:18:08] Speaker 00:
And that's the thing that we would contest.

[00:18:10] Speaker 00:
And so if I go back to Judge Mendoza's question,

[00:18:13] Speaker 00:
Unlike Brasenio, in ASICOL, when there's a disputed affidavit, in other words, when we say, yes, you've claimed you've never registered, but we think you might, we have a Seventh Amendment right and a due process right in order to contest that affidavit.

[00:18:31] Speaker 00:
That then gives us a right at trial, and second, unlike Brasenio,

[00:18:37] Speaker 00:
Every person who has liability, who we sort of pick off, reduces our liability significantly.

[00:18:44] Speaker 00:
So our due process rights are implicated in a way that they are not under Bersenio.

[00:18:48] Speaker 01:
And I'd like to make three quick- Why couldn't that happen in a damages phase just later, though?

[00:18:52] Speaker 00:
Right, exactly.

[00:18:53] Speaker 01:
So, Your Honor, the difference is- That happened meaning that you get to contest it before the jury or the judge.

[00:18:58] Speaker 00:
So Your Honor, we have a right, I think, under the Seventh Amendment, to contest it before a judgment is entered.

[00:19:03] Speaker 00:
There's no judgment that could be entered.

[00:19:04] Speaker 00:
Right, right.

[00:19:04] Speaker 00:
That's what I'm saying.

[00:19:05] Speaker 01:
That's what I'm saying.

[00:19:05] Speaker 01:
So you have your class, and you have your liability questions, and then this question about exactly how much damage is, because exactly how big the class is, gets litigated?

[00:19:16] Speaker 00:
No, Your Honor, because the question is, in each case, the thing that increases our damages, and then I guess I really do need to save for my rebuttal, the thing that

[00:19:26] Speaker 00:
implicates our damages is the question about whether you're readily identifiable and whether you are

[00:19:34] Speaker 00:
Whether you have consented and those are elements of the claim that can't be done by affidavit alone that we have a right to resolve Before judgment is entered on damages before judgments entered on liability before judgment is entered on liability Why can't it just say this class?

[00:19:52] Speaker 01:
If you're right that they have a violation and then in some second phase you determine the size of the class So your honor, I think that is exactly what asset call like at that point.

[00:20:01] Speaker 00:
We have a direct split with asset call, right?

[00:20:02] Speaker 00:
I think the Seventh Amendment

[00:20:04] Speaker 00:
And our right to know, to have a jury decide before judgment is entered.

[00:20:09] Speaker 02:
Or put it another way, the class is people who are readily identifiable and have not consented.

[00:20:17] Speaker 00:
Correct.

[00:20:17] Speaker 02:
That class, let's assume we say, wins.

[00:20:23] Speaker 02:
The class is defined.

[00:20:26] Speaker 02:
So it is a damages question.

[00:20:28] Speaker 02:
Now the question is, who's going to get the money?

[00:20:30] Speaker 02:
And the question is, the people who are going to get the money, are there people who can prove that they have those criteria and were injured, and they'll get the $750?

[00:20:41] Speaker 02:
But it's completely artificial to say that, for some reason, you have to know before the judgment, half of the class as defined

[00:20:54] Speaker 02:
that X and Y and Z are going to get the money.

[00:20:57] Speaker 00:
So your honor, two points.

[00:20:58] Speaker 00:
One, I don't think that's arbitrary.

[00:21:00] Speaker 00:
I think in order to enter judgment against us, we have to know who we would be liable to, who's bound by that judgment.

[00:21:10] Speaker 02:
You're liable to the class.

[00:21:11] Speaker 02:
That's who you're liable to.

[00:21:12] Speaker 02:
You're liable to the class as defined.

[00:21:15] Speaker 00:
Well, but we don't know who is in and not.

[00:21:16] Speaker 00:
We don't know, for example, who would be bound by such a judgment.

[00:21:21] Speaker 01:
Sorry, my question, though, is you keep saying it has to happen before the judgment, but I just don't understand why the litigation can't have phases.

[00:21:28] Speaker 01:
So it would happen before the judgment.

[00:21:29] Speaker 00:
Well, it wouldn't happen before the liability judgment.

[00:21:32] Speaker 00:
Like that's the whole that's exactly right.

[00:21:33] Speaker 01:
There'd be a liability definition legally.

[00:21:36] Speaker 01:
And then the second phase is how many people have it and how many and that how much money is it there for?

[00:21:40] Speaker 00:
Well, it's sort of who's in who's out.

[00:21:42] Speaker 00:
But can I just like make one final point on this?

[00:21:45] Speaker 00:
Like all of this discussion that we're having, of course, is nowhere in the record.

[00:21:49] Speaker 00:
In other words, the idea that this winnowing plan, like you and I and plaintiffs' counsel can have this discussion here, none of it is in the record.

[00:21:58] Speaker 00:
The district court just said we'll have a later prove-up plan.

[00:22:01] Speaker 02:
But under Vann... Isn't that saying exactly what we've been saying?

[00:22:04] Speaker 02:
Later on, you'll figure out... And he did suggest, I mean, he said you can have affidavits and that there are records and that there will be a way to test the affidavits against the records and we'll do it at...

[00:22:17] Speaker 00:
at the appropriate time, which isn't now.

[00:22:27] Speaker 00:
the who, what they would say, when they would say it.

[00:22:30] Speaker 00:
And if I could just explain.

[00:22:33] Speaker 00:
So for example, for readily identifiable, what exactly would the affidavit say?

[00:22:38] Speaker 00:
Like, yes, I'm identified by that name?

[00:22:44] Speaker 00:
That's the very thing we get to contest.

[00:22:46] Speaker 00:
And so you can't just say.

[00:22:48] Speaker 03:
Well, they can say, I typed in my name.

[00:22:51] Speaker 03:
My name is in there.

[00:22:53] Speaker 03:
I'm a member of this class.

[00:22:55] Speaker 00:
Right.

[00:22:55] Speaker 00:
But, Your Honor, the question before the question that would be litigated and it would be affidavits on is, am I readily identifiable from my name, which would come up if I were searched?

[00:23:08] Speaker 00:
And that's the question that under Abdul-Jabbar and others, we would be fighting about.

[00:23:14] Speaker 00:
And that's the thing that would overwhelm the class.

[00:23:17] Speaker 02:
I mean, it would be a very easy way

[00:23:20] Speaker 02:
The affidavit, I suppose, the requirement could be that they have to actually do the search and find out.

[00:23:26] Speaker 00:
So, Your Honor, doing the search and finding out, I just want to be crystal clear here.

[00:23:30] Speaker 00:
Doing the search and finding out just brings up, perhaps, as the record shows, pairs of the exact same name.

[00:23:37] Speaker 01:
The question isn't... Right, right, but the affidavit would have to say, I searched my name and I saw my picture and I know it's me.

[00:23:43] Speaker 01:
And if they can't say all those things, then they don't win.

[00:23:45] Speaker 00:
But it's the, I know it's me, Your Honor, is not the test under the statute.

[00:23:50] Speaker 00:
When Kareem Abdul-Jabbar said, I know Lou Alcindor is me, the court didn't say, therefore you win.

[00:23:56] Speaker 00:
The court said, that's not the question.

[00:23:57] Speaker 00:
The question is, would the public understand that Lou Alcindor and Kareem Abdul-Jabbar are the same person?

[00:24:03] Speaker 00:
It is not something that the individual searched can identify in an affidavit.

[00:24:06] Speaker 02:
My understanding here is that the identifiable question and the search question are intertwined.

[00:24:16] Speaker 02:
And if you can search in the way that Judge Friedland has suggested and come up with this person,

[00:24:21] Speaker 02:
Now you're going to have an argument about whether that person is that person?

[00:24:25] Speaker 02:
Is that what you're saying?

[00:24:25] Speaker 00:
That's exactly what the record shows.

[00:24:27] Speaker 00:
That's exactly what the district court said, Your Honor.

[00:24:29] Speaker 00:
What the district court said was the court acknowledges that there may be occasions in which people share the same name, this is at ER 35, or have similar names and therefore individualized inquiries may be necessary.

[00:24:41] Speaker 02:
But that's not the point.

[00:24:43] Speaker 02:
As Judge Freeland described, the affidavit has to say, and this seems right, you know, I searched and

[00:24:49] Speaker 02:
There was a picture, and that is a picture of me.

[00:24:51] Speaker 00:
So Your Honor, first of all, photos are not sort of what are at issue here.

[00:24:55] Speaker 00:
These are names.

[00:24:56] Speaker 00:
The plaintiffs dropped their photos class.

[00:24:57] Speaker 00:
So we're talking about names.

[00:24:59] Speaker 00:
But even taking Your Honor's point, our point is whether somebody is readily identifiable, this is a right of publicity.

[00:25:07] Speaker 00:
It's not a question of whether you could identify yourself.

[00:25:10] Speaker 00:
It's whether the relevant audience could reference that.

[00:25:13] Speaker 02:
The relevant audience could do exactly that same search, right?

[00:25:16] Speaker 00:
The relevant audience would do the same search, and what the record shows is it would come up with two John Smiths.

[00:25:21] Speaker 00:
And so the question is, would you know from that that this John Smith, who's the plaintiff, is one of those?

[00:25:28] Speaker 02:
I don't really have a sandwich for me and they drop the photo.

[00:25:31] Speaker 02:
I mean, ultimately, what you get through the search is a photo.

[00:25:34] Speaker 00:
No, ultimately.

[00:25:35] Speaker 00:
Sorry.

[00:25:38] Speaker 02:
I mean, at some point in the history of the world, 15 years ago or whenever this thing started, I've looked at this thing.

[00:25:44] Speaker 02:
You know, what you end up with is the yearbook with the picture.

[00:25:47] Speaker 02:
And that's what people are interested in.

[00:25:50] Speaker 02:
The name is how you get there, but it's not what you're looking for.

[00:25:54] Speaker 00:
So I just want to be clear what's happened here, Your Honor.

[00:25:56] Speaker 00:
The initial class proposal was about the identifiability of photos.

[00:26:02] Speaker 00:
After it became clear that the photos were small and blurry at the relevant time,

[00:26:07] Speaker 00:
They changed the class definition.

[00:26:08] Speaker 00:
They dropped photos.

[00:26:09] Speaker 02:
The current class... I thought they weren't small and blurry at the relevant time because the relevant time is when the ads come up.

[00:26:15] Speaker 00:
When the ads come up, Your Honor, they are small and blurry because you get a whole picture.

[00:26:19] Speaker 00:
And just to be clear as to what's happened, that is why if Your Honor looks at the current class definition, it is... yields at least...

[00:26:28] Speaker 00:
It talks about for whom a search of their name yields at least one record.

[00:26:33] Speaker 00:
So it's not talking about photos, which was the original class definition that they proposed, and they dropped throughout through the process.

[00:26:41] Speaker 00:
So the case is not about identifiability of photos, but even if it were,

[00:26:46] Speaker 00:
We're talking about blurry photos, where the question of readily identifiable actually goes to the core of the question.

[00:26:53] Speaker 02:
It is not something.

[00:26:54] Speaker 02:
Just to be clear, I thought that when you come in as a visitor for free, you get these blurry photos.

[00:27:02] Speaker 02:
But you don't get an ad trying to sell you the premium membership.

[00:27:13] Speaker 02:
Is that wrong?

[00:27:13] Speaker 00:
That's well, it's wrong for the free members, right?

[00:27:16] Speaker 00:
There are no, right?

[00:27:18] Speaker 00:
It's wrong.

[00:27:19] Speaker 02:
It's right for the visitors, right?

[00:27:20] Speaker 02:
The free members I thought get the actual photos and they get the ads.

[00:27:26] Speaker 00:
So your honor, I think actually that's not right.

[00:27:29] Speaker 00:
I think for visitors, it's very unusual.

[00:27:31] Speaker 00:
They don't get the ads with the pictures.

[00:27:35] Speaker 00:
What you're thinking of is the free membership.

[00:27:38] Speaker 00:
When you are a free member and you do a search, what comes up is the blurry photo.

[00:27:42] Speaker 00:
When you then click on that, what comes up is the

[00:27:45] Speaker 00:
quote-unquote upsell or whatever your honor wants to describe it as the premium subscription So I don't think like as a factual matter and the briefs lay this out You know the free member only gets the ad when they get an actual photo No when they get a blurry photo your honor when they click the blurry photo the blurry photo But they can't at the point at point go directly to the picture sure after but then there's no ad shown But like again the question we're not fighting here.

[00:28:10] Speaker 00:
We're not asking this court to decide like

[00:28:12] Speaker 00:
the exact ad sequence.

[00:28:14] Speaker 00:
The question is, are you ready?

[00:28:17] Speaker 01:
I think I need to cut you off.

[00:28:18] Speaker 01:
We're way over your time.

[00:28:18] Speaker 00:
I'm sorry.

[00:28:18] Speaker 00:
Your Honor, you've been very generous.

[00:28:19] Speaker 00:
Thank you.

[00:28:20] Speaker 01:
Let's give you three minutes for rebuttal later.

[00:28:21] Speaker 00:
I appreciate that.

[00:28:21] Speaker 01:
Let's hear from the other side.

[00:28:22] Speaker 00:
I appreciate that.

[00:28:23] Speaker 00:
Thank you.

[00:28:30] Speaker 04:
Good morning, Your Honors.

[00:28:31] Speaker 04:
Benjamin Osborne on behalf of the class.

[00:28:35] Speaker 04:
May it please the court.

[00:28:36] Speaker 04:
First I'd like to begin by asking whether your honors still wish me to address the question concerning lab core versus Davis That I received an email about that's still relevant It may be but let's go to the rest of the argument first, okay Great.

[00:28:53] Speaker 02:
Thank you.

[00:28:53] Speaker 02:
The lab core argument I don't know whether you read it, but it sounded like the case may not be going anywhere Which is essentially what I was going to say

[00:29:02] Speaker 04:
Then I'd like to start by talking about the standard of review that applies here, and then I'll move to the substantive arguments starting with predominance and what was shown to be common and is admitted to be common, and then moving on to the issues that were just discussed that opposing counsel argues are not shared in comments.

[00:29:19] Speaker 04:
Let's start with the standard of review here.

[00:29:21] Speaker 04:
This is a 23f appeal.

[00:29:23] Speaker 04:
It means the standard is for abuse of discretion.

[00:29:26] Speaker 04:
Further, Ninth Circuit case law indicates that the standard is even more deferential here in the case of a class certification grant than it would be in the case of a denial.

[00:29:35] Speaker 04:
That's from Abdullah versus U.S.

[00:29:37] Speaker 04:
Security Associates.

[00:29:39] Speaker 04:
And here, People Connect is not arguing that the district court applied an incorrect factor.

[00:29:45] Speaker 04:
It must therefore be arguing that

[00:29:48] Speaker 04:
The district court made a clear error of judgment in applying the relevant factors.

[00:29:51] Speaker 04:
So to find in their favor, that's what you'd have to find, that they made a clear error of judgment.

[00:29:55] Speaker 04:
It's a very high bar to surmount.

[00:29:57] Speaker 04:
And they haven't surmounted it here.

[00:30:00] Speaker 04:
So let's proceed to discussing predominance.

[00:30:04] Speaker 04:
And I want to start with what opposing counsel didn't address, which is all the issues that are in common, right?

[00:30:09] Speaker 04:
Because the predominance inquiry is not just about focusing on what's not shared in common, but weighing what's in common against what's not.

[00:30:18] Speaker 04:
Everyone agrees that the central issue is shared in common.

[00:30:21] Speaker 04:
That's whether people connect to use of class members' names and photographs without their consent is a commercial use in violation of California statute section 33-44.

[00:30:32] Speaker 02:
Also, all of you- Is he correct that the photographs are irrelevant at this point?

[00:30:38] Speaker 04:
The photographs are not part of the class definition, I agree.

[00:30:42] Speaker 04:
The people who are searched are identifiable by a combination of their name

[00:30:46] Speaker 04:
the school and the year they went to that school.

[00:30:48] Speaker 02:
But what happens when you're identified and you search is you get the photograph.

[00:30:53] Speaker 04:
You do get a photograph, that's correct, but you also get, as you can see in the briefing, and again I can't show it because it's a redacted portion, we have a search result in our briefing.

[00:31:02] Speaker 04:
Right.

[00:31:03] Speaker 04:
And that search result, you'll see it has the name, first and last name, I'm not going to say that woman's name because I'm not allowed to.

[00:31:09] Speaker 04:
It has the school she attended, the name of the school, and the year in which she attended it.

[00:31:14] Speaker 04:
And it's those three things, if you look at the district court opinion, Judge Chen correctly said a person is usually identifiable by the combination of those things.

[00:31:23] Speaker 01:
So, but maybe I misunderstood this because I actually thought, I mean, within that, there could be people who are both named John Smith, two people John Smith at the same school in the same year.

[00:31:35] Speaker 01:
And I had thought the way we were going to tell them apart was whether there's a picture that you can tell and that they could have an affidavit that said that.

[00:31:40] Speaker 01:
But maybe I'm wrong.

[00:31:41] Speaker 01:
Maybe we can't look at the picture.

[00:31:42] Speaker 01:
What do we do if there's two John Smiths?

[00:31:45] Speaker 04:
Well, first, I'll say individualized issues have to be substantiated, right?

[00:31:50] Speaker 04:
So if you look at the district court's language when he was addressing that issue, he says it's conceivable that there'd be two names that refer to the same person.

[00:31:56] Speaker 04:
Why did he say that?

[00:31:57] Speaker 04:
Because opposing counsel, whose burden it was to substantiate the issue, failed to identify a single case of that actually happening.

[00:32:04] Speaker 01:
It seems pretty obvious.

[00:32:05] Speaker 01:
I mean, I think it's probably pretty obvious that there are going to be some of those.

[00:32:10] Speaker 01:
In these huge public schools, there are going to be some people with the same name.

[00:32:13] Speaker 01:
days where our cases before us are all the same name.

[00:32:16] Speaker 01:
I mean, it happens that there are people with the same name.

[00:32:18] Speaker 04:
It's possible.

[00:32:19] Speaker 04:
It's possible there's John Smiths or multiple Garcias.

[00:32:21] Speaker 04:
Common names exist, absolutely.

[00:32:23] Speaker 04:
In those cases, they could look at the photograph.

[00:32:25] Speaker 04:
The reason we didn't include the photograph in the definition is that not all the photographs are centered in on the person's face.

[00:32:32] Speaker 04:
Most of them are.

[00:32:32] Speaker 04:
But sometimes they'll get a photograph that shows that they're a member of the band, something like that.

[00:32:37] Speaker 02:
I saw some members of the band are specifically included from the statue.

[00:32:42] Speaker 04:
Yes, if that photograph, if the only photograph that exists is one of them being in the band, that wouldn't implicate their likeness, but that doesn't exclude them from the statute.

[00:32:51] Speaker 04:
The statute covers something broader than just the likeness.

[00:32:54] Speaker 02:
If you're part of a group, it doesn't count.

[00:32:58] Speaker 04:
That is true, but we're now getting into a somewhat down the levels argument.

[00:33:06] Speaker 04:
But my position on that would be, we're not relying on the photograph alone.

[00:33:10] Speaker 04:
If it were a list of 500 names, that might be analogous to a picture of everyone in a band.

[00:33:16] Speaker 04:
But here, look at the search results.

[00:33:18] Speaker 04:
That individual's name is highlighted.

[00:33:20] Speaker 04:
That individual's year is highlighted.

[00:33:22] Speaker 04:
That individual's school is highlighted.

[00:33:26] Speaker 04:
Even if the photograph adjacent to it has five people in it, only that person's name, only the year that they attended the school, and only that school name will appear in the written search results.

[00:33:36] Speaker 04:
That's what identifies that unique identity and separates them out from a crowd.

[00:33:42] Speaker 04:
You're right, Your Honor, if it was just a photograph with a large number of people,

[00:33:45] Speaker 04:
The statute wouldn't be implicated, but here it is.

[00:33:47] Speaker 02:
All right, so go ahead.

[00:33:48] Speaker 02:
But it seems like one issue that's quite central here that I'd like to hear what you have to say about is that Judge Chen did in his order discuss the merits and to some degree rely on it.

[00:34:03] Speaker 02:
Does that mean that we have to do that too?

[00:34:08] Speaker 04:
No, it does not, Your Honor.

[00:34:11] Speaker 04:
There are several points to make on this issue, some of which Your Honors have made.

[00:34:15] Speaker 02:
Because if it's so, then we end up reviewing this motion to dismiss on a 23-F, which seems like something we oughtn't to be doing.

[00:34:22] Speaker 04:
Correct.

[00:34:23] Speaker 04:
It is a merits issue.

[00:34:24] Speaker 04:
And even if the judge refers to his earlier ruling, it wasn't a central underpinning of his ruling on the class certification motion.

[00:34:31] Speaker 02:
But it did start there for whatever reason.

[00:34:33] Speaker 04:
Well, perhaps more fundamentally, opposing counsel didn't raise this issue as a reason to deny class certification.

[00:34:39] Speaker 01:
We all might have different views on this.

[00:34:41] Speaker 01:
I disagree.

[00:34:42] Speaker 01:
I think they preserved it.

[00:34:43] Speaker 01:
So can you go to how you can win even if this is preserved instead of just relying on the waiver?

[00:34:47] Speaker 01:
I'd like to hear how you think you get around this search to searchable business.

[00:34:51] Speaker 01:
Absolutely.

[00:34:52] Speaker 04:
My first point is one your honor raised yourself in your questioning of opposing counsel, which is the issue is shared between all the class members.

[00:34:59] Speaker 04:
If searchability is not enough to establish a cause of action under section 344, the entire class loses their claims.

[00:35:08] Speaker 04:
It is a merit.

[00:35:10] Speaker 01:
So his answer to that was the named plaintiff claims to have been searched.

[00:35:15] Speaker 01:
So it seems actually like some of the people in the class maybe are asserting a searched claim and don't just lose if it has to have been searched.

[00:35:23] Speaker 01:
What's your response to that?

[00:35:25] Speaker 04:
That is what we wrote in our complaint, but that's not now the class that we're proceeding on behalf of.

[00:35:29] Speaker 04:
We're not proceeding on behalf of a class of people who are actually searched.

[00:35:32] Speaker 04:
And by the way, I want to be very precise on the reason for that.

[00:35:35] Speaker 04:
The reason is because they want

[00:35:37] Speaker 04:
on summary judgment against an earlier named plaintiff who had been searched for, or at least we allege they had been searched for.

[00:35:42] Speaker 04:
They're in possession of the records of whether they searched.

[00:35:45] Speaker 04:
They argued on statute of limitations ground that that person's claim was out because the time of that display was before the relevant, sorry, because the time of the publication was before the relevant limitations period, even though the display had occurred within it.

[00:36:00] Speaker 04:
Judge Chen bought that argument.

[00:36:02] Speaker 02:
And which led him to buy the other argument.

[00:36:04] Speaker 02:
Correct.

[00:36:04] Speaker 04:
It's a logical implication.

[00:36:06] Speaker 04:
If the cause of action under section 344, as opposing counsel successfully argued before the district court, arises at the time of publication, then it can't be that you don't have a cause of action when the publication has occurred.

[00:36:19] Speaker 02:
I don't know that it can't be.

[00:36:20] Speaker 02:
And the real question is, do we need to decide that?

[00:36:24] Speaker 04:
No, you don't need to decide that.

[00:36:27] Speaker 01:
Can we go back to, OK, so you say now your name plaintiff claims to have been searched, but that doesn't matter.

[00:36:32] Speaker 01:
You're trying to proceed on a class of just people who are searchable.

[00:36:36] Speaker 01:
And therefore, if it turns out they have to have been searched, you're saying you lose.

[00:36:43] Speaker 04:
Yes.

[00:36:44] Speaker 04:
Our class claims would fail on the merits if that were the case, yes.

[00:36:47] Speaker 01:
And so is there some ethical conflict or something?

[00:36:50] Speaker 01:
What happens with the people, including your name plaintiff,

[00:36:55] Speaker 01:
say they were searched within this class, and how do we deal with those people if you now are losing on behalf of them?

[00:37:01] Speaker 04:
They would have their own independent claim.

[00:37:05] Speaker 04:
Very practically, what we do is go talk to people.

[00:37:09] Speaker 04:
Well, it'd be hard for us because they are actually in possession of all the data about who's been viewed.

[00:37:13] Speaker 04:
That's part of the puzzle here.

[00:37:15] Speaker 04:
You might have been viewed.

[00:37:16] Speaker 04:
I might have been viewed.

[00:37:17] Speaker 04:
I don't know.

[00:37:18] Speaker 04:
They don't disclose that.

[00:37:19] Speaker 04:
And they've been real cagey about disclosing it in this litigation for reasons you might imagine.

[00:37:24] Speaker 04:
very practically, those people who had been searched would still have viable claims.

[00:37:28] Speaker 02:
They can have a separate claim that says, I was a member of this class because I was searchable, but that class lost, but I was actually searched.

[00:37:37] Speaker 04:
Yeah.

[00:37:37] Speaker 04:
And I don't want to get into the details of whether tolling would apply, but probably it would.

[00:37:41] Speaker 04:
They would have told during the time that this class was certified, and they can go bring their own claim.

[00:37:47] Speaker 01:
The class of people searched is logically a subset of the class of people searchable.

[00:37:56] Speaker 01:
So why wouldn't they be stopped?

[00:37:59] Speaker 01:
Why wouldn't there be a problem?

[00:38:00] Speaker 01:
Because they would have been in the class that tried to bring this claim and somehow lost.

[00:38:04] Speaker 01:
I don't know.

[00:38:04] Speaker 01:
I'm not totally sure why they could succeed at that point.

[00:38:07] Speaker 01:
They would have had a claim they'd lost against the dependent.

[00:38:10] Speaker 04:
Yes, but they would have lost on grounds that don't apply to them right they would have lost on the ground that We're walking that hypothetical right where it applies to them because they were both searched and searchable So they were part of the class because they were searchable yes, but if the ruling at the class stage is We lose on liability because you have to have been searched Right then they can come back and bring a claim say well.

[00:38:35] Speaker 04:
I was searched now.

[00:38:36] Speaker 04:
I have a claim

[00:38:37] Speaker 04:
We have a new understanding.

[00:38:38] Speaker 02:
Yes, maybe, no.

[00:38:39] Speaker 02:
We really don't have briefing on that question.

[00:38:40] Speaker 02:
But what about the, as I understood your opponent's argument, was that even if what you're saying is right, i.e.

[00:38:53] Speaker 02:
we shouldn't be looking at the merits, the district court did in fact look at the merits.

[00:38:58] Speaker 02:
And that was part of his reasoning in certifying the class, and we have

[00:39:04] Speaker 02:
Since it's an abuse of discretion standard, he abuses discretion to that degree and we can't approve it on this basis.

[00:39:16] Speaker 04:
Your Honor, the judge's mention of this issue was simply in referring back to an earlier ruling he had already made.

[00:39:22] Speaker 04:
As I read the decision, he had already made that ruling.

[00:39:27] Speaker 04:
He's not saying the class certification decision now depends on my evaluation of that issue.

[00:39:34] Speaker 04:
He's just quoting his earlier ruling.

[00:39:37] Speaker 04:
So it does not form a part of his Rule 23 decision, which is what you all are here to consider.

[00:39:44] Speaker 02:
Well, if we thought otherwise, and I don't know whether I do, there would be two options.

[00:39:48] Speaker 02:
One is to review it on the basis that he determined it, i.e.

[00:39:52] Speaker 02:
to review essentially the merits or the motion to dismiss, or to remand the whole thing.

[00:39:59] Speaker 02:
Is that right?

[00:40:01] Speaker 02:
Or could we go and talk about, on some harmless error basis, that he was right, that he didn't abuse his discretion, even if he considered the marriage incorrectly?

[00:40:18] Speaker 04:
Well, Your Honors, I don't think he could... Well, okay, so you're asking me to assume that you have already decided that Judge Chen was wrong.

[00:40:29] Speaker 02:
and considered- Not wrong in the merits, but wrong to have considered the merits.

[00:40:32] Speaker 04:
Wrong to have considered the merits.

[00:40:34] Speaker 04:
I'm struggling with that because I don't understand how that could be the case, but if you did- Well, he might have said the kind of thing I was trying to ask.

[00:40:41] Speaker 01:
He might have thought, well, it's going to be a good class whether it's searched or searchable, so I don't have to decide that, so I'm certifying the class.

[00:40:47] Speaker 01:
But it doesn't seem like that's what he did.

[00:40:49] Speaker 01:
It seems like he instead said, I can certify the class because the answer is searchable.

[00:40:54] Speaker 04:
because he had already found that answer earlier in the case on the basis of their argument.

[00:40:59] Speaker 01:
But okay, whatever, but a premise of his, I think it's fair to say that a premise of his class certification analysis was that we're proceeding under a statute that needs searchable, not searched.

[00:41:14] Speaker 04:
I'm not sure I would fully agree for the reasons we already discussed.

[00:41:16] Speaker 04:
We would lose this on a class-wide basis if we lose on that legal point.

[00:41:22] Speaker 01:
But he was assuming you were winning on it.

[00:41:24] Speaker 01:
That's my point.

[00:41:25] Speaker 01:
He was only thinking about, couldn't we certify a class where the claim is searchable?

[00:41:29] Speaker 04:
I agree with that.

[00:41:30] Speaker 04:
That's what the opinion shows.

[00:41:31] Speaker 04:
That doesn't mean that it was a logical underpinning of the certification.

[00:41:36] Speaker 01:
Well, he didn't think about what are we going to do with this problem of searched and the people who might have been searched and whatever.

[00:41:41] Speaker 01:
He didn't talk about that because he thought it didn't matter, right?

[00:41:45] Speaker 04:
That's correct.

[00:41:46] Speaker 04:
It didn't matter for purposes of class certification.

[00:41:48] Speaker 01:
But he thought that because he had already interpreted the statute on the merits.

[00:41:54] Speaker 04:
Again, based on their argument that they prevailed on.

[00:42:00] Speaker 02:
Do you want to, and I think you did in your briefs, defend the merits question?

[00:42:08] Speaker 01:
Why is searchable the right answer?

[00:42:12] Speaker 04:
There's several reasons.

[00:42:15] Speaker 04:
First, we have several district courts that have lined up along the finding that... Okay, but why?

[00:42:20] Speaker 01:
Why is it right?

[00:42:21] Speaker 01:
Because we don't care if they did it right.

[00:42:22] Speaker 04:
The statutory language.

[00:42:23] Speaker 04:
Let's start there.

[00:42:24] Speaker 04:
What does it say?

[00:42:24] Speaker 04:
It says commercial use of someone's name and likeness.

[00:42:28] Speaker 04:
And it doesn't say that the commercial use has to be viewing by a third party.

[00:42:32] Speaker 02:
Furthermore, the focus... But how are you using the... I should say that I have

[00:42:39] Speaker 02:
serious problems with the merits of this.

[00:42:41] Speaker 02:
How are you using somebody's identity if it's sitting on your website, but you're not doing anything with it unless and until somebody asks for that person?

[00:42:59] Speaker 04:
They are doing something with it.

[00:43:00] Speaker 04:
They have published web pages that have these individuals' names and photographs on them right now.

[00:43:05] Speaker 04:
There are URLs that have the names of photographs.

[00:43:07] Speaker 02:
Published in the sense that they exist on their website?

[00:43:11] Speaker 04:
Correct.

[00:43:11] Speaker 04:
In the same sense that if they had bought a newspaper and put it on the street in one of those bins that you can pull a newspaper out of, they are commercially using that

[00:43:21] Speaker 04:
that they're showing on the front of the newspaper, whether or not someone wants to have it.

[00:43:24] Speaker 02:
But they were showing an image on the front of the newspaper.

[00:43:27] Speaker 02:
That's the whole point here is that the premises that all they're showing on the front of their website is that we have the class of 1966 from East Meadow High School, that's where I went, 62 actually.

[00:43:42] Speaker 02:
On our website, that's what they're publicizing.

[00:43:48] Speaker 02:
They're not publicizing me.

[00:43:49] Speaker 04:
Well, they're publicizing a search bar where you can search for anyone, including for members of the class of 1962.

[00:43:54] Speaker 04:
I'm sorry, I forgot the name of the class.

[00:43:58] Speaker 04:
That's what they're publicizing.

[00:43:59] Speaker 04:
And yes, our theory is that.

[00:44:01] Speaker 01:
But isn't the analogy more like the front of the newspaper says, I've got pictures inside, and the person's on page eight.

[00:44:07] Speaker 01:
So how are they using your page eight picture to sell the newspaper if they can't see it through the screen?

[00:44:13] Speaker 04:
That's very concrete.

[00:44:16] Speaker 04:
We have two types of users, but I'm going to simplify.

[00:44:18] Speaker 04:
In both cases, if you look through enough photographs, you get hit with a paywall that says to keep doing this, buy a subscription for, I forget, last time I looked, it was $2.99 a month.

[00:44:29] Speaker 02:
But this isn't even what the newspaper hypothetical, because they're not even saying I have a picture of Joe Smith on page 8, go look at page 8.

[00:44:38] Speaker 02:
They're not saying you have a picture of anybody in particular.

[00:44:42] Speaker 02:
They're just saying we have the class of 1962 at East Middle High School.

[00:44:46] Speaker 04:
I disagree, Your Honor.

[00:44:47] Speaker 04:
I think the way modern promotion of anything on the internet works is often in response to a search.

[00:44:55] Speaker 04:
If you type someone's name into an internet browser, it's likely classmates.com's link to their result is going to pop up.

[00:45:01] Speaker 04:
That's how things get promoted today.

[00:45:03] Speaker 02:
But that's where this parade of horribles comes from, right?

[00:45:06] Speaker 02:
Where they then say, I don't know if it's horrible, but then Google is going to be responsible for everything you can search for.

[00:45:12] Speaker 02:
Well, if Google had- When you search Google,

[00:45:15] Speaker 02:
When you come up with images and you look at people's photos or you search your name and you find whatever you find, then everything that Google leads you to becomes a California privacy problem.

[00:45:32] Speaker 04:
Oh, I wouldn't say that, Your Honor.

[00:45:33] Speaker 04:
There's a big distinction, which is, so one, well, two distinctions.

[00:45:38] Speaker 04:
One, the search results on classmates.com are tied to a specific person.

[00:45:41] Speaker 04:
When you type in their name, you're going to get results about that person and they're very... And that's true about Google, too.

[00:45:46] Speaker 04:
Yes.

[00:45:47] Speaker 04:
The difference is in Google, you're not going to get hit with a paywall after page two that says we have more information about this person.

[00:45:54] Speaker 01:
They're still going to make money on you by having the ad on the side.

[00:45:57] Speaker 04:
That's fair, but that would be a much looser connection to a commercial use and a commercial purpose than the one that happens here, which is here, you've hit a paywall, you want to see more photographs of person X, you've got to pay.

[00:46:13] Speaker 01:
What do you think is going to happen

[00:46:15] Speaker 01:
with the identifying how many people are in the class and when, if they think that there's this problem of multiple people with the same names or people who actually aren't in there.

[00:46:27] Speaker 01:
Like, how are we going to figure out, or might have consented, how are we going to resolve these fact disputes that they say would happen after judgment?

[00:46:33] Speaker 01:
Do you have a theory of how this could happen before judgment?

[00:46:37] Speaker 04:
Yes, Your Honor.

[00:46:38] Speaker 04:
It could happen through summary judgment in many cases.

[00:46:41] Speaker 04:
So many of the issues that they've

[00:46:44] Speaker 04:
that they've raised could be resolved in summary judgment.

[00:46:46] Speaker 04:
But let me ask the specific issue you're most worried about so I can answer.

[00:46:50] Speaker 01:
I mean, pick any of them.

[00:46:53] Speaker 01:
Pick any fact dispute that they say needs a jury to determine.

[00:46:58] Speaker 01:
And I think you were saying they could just be done by affidavit.

[00:47:01] Speaker 01:
Can you explain how it would happen before judgment if there's going to be some affidavit?

[00:47:06] Speaker 04:
Sure.

[00:47:06] Speaker 04:
So one issue is whether the, and the one that I think opposing counsel spent the most time talking about, is whether the particular

[00:47:12] Speaker 04:
individual who's making a claim for damages, registered an account on classmates.com at some point.

[00:47:18] Speaker 04:
And they're right, by the way.

[00:47:19] Speaker 04:
A lot of people used classmates.com 10 years ago and forgot about it.

[00:47:23] Speaker 04:
And so there's going to need to be a proof upstage to verify that.

[00:47:27] Speaker 04:
But actually, the point they made is the one I would point to, that they've already done that in this case.

[00:47:31] Speaker 04:
Several of our named plaintiffs have been knocked out because they came and said, hey, we have this person's name and email address in our records as having registered for a classmates.com account 10 years ago.

[00:47:41] Speaker 04:
And our name plaintiff said, OK, I see that.

[00:47:43] Speaker 04:
I didn't remember that.

[00:47:44] Speaker 04:
But I see that now.

[00:47:46] Speaker 04:
And then they didn't have a claim anymore.

[00:47:47] Speaker 01:
But what happens if your person says someone used my name by mistake?

[00:47:53] Speaker 01:
I mean, I never did that.

[00:47:56] Speaker 01:
And now we've got a fact dispute.

[00:47:58] Speaker 04:
We would have a fact dispute in that case.

[00:48:00] Speaker 04:
And then the issue, as in all class actions, is whether those fact disputes are so significant that they would overwhelm the predominant.

[00:48:09] Speaker 02:
But the issue, as the case law describes it, is whether there was a winnowing plan.

[00:48:13] Speaker 02:
Was there a winning plan here?

[00:48:14] Speaker 04:
A winnowing plan.

[00:48:17] Speaker 02:
In other words, to judge Chen, explain how he was going to do this.

[00:48:22] Speaker 04:
Yes.

[00:48:23] Speaker 04:
He did so by reference to Braseno, which used affidavits in a much similar way.

[00:48:28] Speaker 04:
And in fact, in Braseno, there was less information available to test the claims of the people who said by affidavits that they had purchased a product.

[00:48:34] Speaker 01:
But there, there was this pool.

[00:48:37] Speaker 01:
I mean, so there, the amount of damages was going to be known ahead.

[00:48:41] Speaker 01:
So here, they're saying, because it's not like that, it has to be done before the judgment.

[00:48:45] Speaker 01:
So I'm wondering what the plan would be.

[00:48:47] Speaker 01:
I don't think Fresenio said it always has to be the way it was in that case, but so how would it work if it's not that way?

[00:48:55] Speaker 04:
I would agree, Your Honor, that the only distinction that opposing counsel have managed to make between this case and Fresenio is whether the total amount of damages can be known at the time of final judgment.

[00:49:07] Speaker 04:
And they misread Berseno to say that that's a requirement.

[00:49:10] Speaker 01:
OK, right.

[00:49:11] Speaker 01:
So say it's not a requirement, but it still has to be worked out somehow.

[00:49:13] Speaker 01:
So how are you going to work it out?

[00:49:14] Speaker 04:
Two things.

[00:49:15] Speaker 04:
First and foremost, we have an estimate of the class size.

[00:49:18] Speaker 04:
We have expert testimony that's used sampling and statistical methods.

[00:49:22] Speaker 04:
They have an expert on their side they use to challenge it to estimate what the size of the class is after taking into account the exclusions for those who had registered accounts on classmates.com.

[00:49:31] Speaker 04:
We can use statistics to do that.

[00:49:33] Speaker 04:
That's a method the Supreme Court itself

[00:49:35] Speaker 04:
endorsed in the Tyson case, which we cite in our briefing.

[00:49:38] Speaker 01:
And what about this searchable business where it's going to be people more than one name of the same person?

[00:49:44] Speaker 01:
Sorry, more than one person with the same name.

[00:49:46] Speaker 04:
Yes.

[00:49:47] Speaker 04:
Well, our expert reports actually already take that into account.

[00:49:49] Speaker 04:
You can use sampling for that as well.

[00:49:51] Speaker 04:
So you can get to a

[00:49:54] Speaker 04:
an accurate and fundamentally challengeable by them, estimate of the aggregate liability, before you even go into the proof upstage.

[00:50:00] Speaker 04:
So even if it were a due process requirement.

[00:50:02] Speaker 01:
I mean, you might get an estimate of the class, but it's not going to be exact.

[00:50:05] Speaker 01:
And also, like any given Joe Smith, how do they know if they get the $750?

[00:50:11] Speaker 04:
So with respect to the latter question, they submit a claim.

[00:50:15] Speaker 04:
They go on the website, they search for themselves, if they see their own name, photograph, year, school.

[00:50:19] Speaker 01:
OK, but now you went back to photograph, but before we were going to say you can't use the photograph.

[00:50:23] Speaker 04:
Fine, I'll take photograph out of that statement.

[00:50:24] Speaker 04:
If they see their own name, well, the question is, is it them?

[00:50:27] Speaker 04:
Is it recognizable as them?

[00:50:29] Speaker 04:
So the class definition is they've got to have the name match and the year and the school, right?

[00:50:36] Speaker 04:
In the moment, if I'm looking at the result and it has a photograph and I'm the one making the claim, I'm for sure going to be able to check that photograph when I put in the affidavit and say, yep, that's me.

[00:50:44] Speaker 04:
And then people can actually have the chance to challenge that, including matching their name against their database of subscribers.

[00:50:52] Speaker 04:
We ask for an email as well, because they take emails from subscribers when the subscription occurs.

[00:50:59] Speaker 04:
And I'm sorry, did I address your original question or not?

[00:51:01] Speaker 01:
I'm not sure you did.

[00:51:02] Speaker 01:
I mean, if your way that you're going to get the total amount of damages before judgment is some estimate of how many people are going to be able to file these affidavits, and then some different number does, what happens then?

[00:51:14] Speaker 04:
There is no requirement in class action law that the final liability

[00:51:23] Speaker 04:
be known at some early stage in the case.

[00:51:27] Speaker 04:
It happens all the time that we do class actions where the total number of class members isn't known, it's estimated.

[00:51:33] Speaker 02:
But also, even if you can estimate the number of class members, then there's the question of who's going to make the claims, which is usually much fewer.

[00:51:41] Speaker 04:
Correct.

[00:51:42] Speaker 02:
So whatever number you come up with, it's going to be a high-end number.

[00:51:47] Speaker 04:
Probably, yes, because claims rates are what they are.

[00:51:50] Speaker 04:
That's fair.

[00:51:51] Speaker 04:
And that's another sense in which their due process rights are preserved here.

[00:51:54] Speaker 04:
But in essence, their rule would penalize this class action for having more certainty than the typical class action.

[00:52:02] Speaker 04:
Why?

[00:52:02] Speaker 04:
Because here, we have statutory minimum damages.

[00:52:05] Speaker 04:
We have $750 for each person who submits a claim.

[00:52:08] Speaker 04:
We know that ahead of time they have that level of certainty.

[00:52:10] Speaker 04:
That's actually more certainty than you get in most class actions with the amount of damages.

[00:52:13] Speaker 02:
Because once you know who the people are, that's it.

[00:52:15] Speaker 02:
You don't have to do anything else.

[00:52:17] Speaker 04:
Correct, right?

[00:52:18] Speaker 04:
So their position is like, knowing who the people are is more important.

[00:52:25] Speaker 04:
But here, we know what the damages are going to be on a per person basis.

[00:52:29] Speaker 04:
That's more certainty than you get than you got in Tyson, certainly, where both of those elements were unknown.

[00:52:34] Speaker 04:
Both the amount of time people had spent donning and doffing and the precise number of people in the class were both unknown and certification was affirmed by the Supreme Court.

[00:52:44] Speaker 01:
Can we go to rebuttal?

[00:52:47] Speaker 01:
Okay, you're over your time, thank you.

[00:52:48] Speaker 01:
Let's put three minutes on the clock for rebuttal.

[00:52:50] Speaker 01:
Thank you, Your Honor.

[00:52:54] Speaker 00:
So, Your Honor, I appreciate the time and I will be brief.

[00:52:56] Speaker 00:
I want to make four points.

[00:52:59] Speaker 00:
First, Judge Friedland, I think that the question about whether you can and need to address searchability was addressed with your colloquy with my colleague.

[00:53:12] Speaker 00:
He said that the district court never reached the question of whether you could certify a search class, that he thought it didn't matter.

[00:53:18] Speaker 00:
His whole premise was that he was going to be correct on searchable.

[00:53:24] Speaker 00:
And so he didn't need to reach with search.

[00:53:26] Speaker 00:
And there's no doubt that if he had done that analysis, there would have been no predominance.

[00:53:30] Speaker 00:
I think also counsel said that although he kept

[00:53:35] Speaker 02:
The people who are searched are also searchable.

[00:53:38] Speaker 02:
So they're in the class.

[00:53:39] Speaker 02:
And what's the problem?

[00:53:40] Speaker 00:
The problem is, Your Honor, that if we're right and that's not enough, they can't certify the other class.

[00:53:45] Speaker 00:
And Judge Friedland, if I could, he said, oh, the entire class loses.

[00:53:49] Speaker 00:
But what he made clear is not that the entire class loses.

[00:53:52] Speaker 00:
It's that you couldn't certify the class.

[00:53:54] Speaker 00:
And of course, he can't say the class loses because his own plaintiff would lose and because he can't give away the stronger claims searched to save the weaker claims.

[00:54:04] Speaker 01:
So that's the first thing there could be a later lawsuit, but I don't know if I'm persuaded by that.

[00:54:08] Speaker 00:
I think it's exactly right.

[00:54:09] Speaker 00:
So I just think your colloquy with him proved our point.

[00:54:12] Speaker 00:
Second.

[00:54:13] Speaker 00:
I don't want to get too much into the merits, Judge Berzon.

[00:54:16] Speaker 00:
I don't know if you were asking the questions, but your questions would have been things I would have said without the question mark.

[00:54:21] Speaker 00:
So on the question of use 3344, the argument just cannot stand.

[00:54:26] Speaker 00:
I just want to make crystal clear.

[00:54:28] Speaker 00:
When he says, and the way the district court said these are published, what they meant was they are on the database.

[00:54:34] Speaker 00:
If you type in Ian Gershengorn,

[00:54:36] Speaker 00:
it will create something and return it.

[00:54:38] Speaker 00:
It is not published in a newspaper sense.

[00:54:40] Speaker 00:
It hasn't been put out.

[00:54:42] Speaker 00:
It's not in a box.

[00:54:43] Speaker 00:
It's a search just like Google.

[00:54:46] Speaker 00:
Third, like we could talk a lot about

[00:54:49] Speaker 00:
The expert, and I have responses, this is not Tyson's.

[00:54:52] Speaker 00:
This is Walmart.

[00:54:53] Speaker 00:
This isn't something an individual plaintiff could say, oh, it's statistically likely that I'm readily identifiable.

[00:54:59] Speaker 00:
But my main point here, this third point, is this is not how you do a winnowing plan.

[00:55:04] Speaker 00:
It is not you asking plaintiffs' counsel while we sit here, how should this be done?

[00:55:09] Speaker 00:
This is what Vann says the district court had to do.

[00:55:12] Speaker 02:
I thought he did, essentially.

[00:55:12] Speaker 00:
I don't think he did, Your Honor, and I think the fact that plaintiffs' counsel couldn't answer those basic questions about what would this look like shows that that plan never happened.

[00:55:20] Speaker 00:
And, Your Honor, you can look... It wasn't called a plan.

[00:55:23] Speaker 02:
I mean, he did say you can get affidavits, and then you can check it against the base.

[00:55:27] Speaker 00:
We don't know what those affidavits would say, when they would come, what they would do, all of the questions.

[00:55:31] Speaker 02:
Do you think it's interesting how to do it in that level of detail?

[00:55:33] Speaker 00:
all of the questions that Judge Friedland was asking, this is not how you do a winnowing plan.

[00:55:37] Speaker 00:
And then I'd like to make, I know my time's short, I want to make one last point on LabCorp.

[00:55:41] Speaker 00:
So LabCorp, I agree.

[00:55:42] Speaker 00:
First, it may get digged.

[00:55:44] Speaker 00:
Second, if the court rules that this class can go forward, then what LabCorp says may be deeply relevant.

[00:55:50] Speaker 00:
because what LabCorp is addressing is whether under Rule 23 or Article 3, you can have a class that has a lot of people, more than a diminished number of people, without standing.

[00:56:00] Speaker 00:
If you let this class go forward and rule against us on... And why do you think they don't have standing?

[00:56:06] Speaker 00:
I think they don't have standing because we don't think people under TransUnion who are sitting in a database and are never searched have Article 3 standing.

[00:56:13] Speaker 00:
You've never argued that.

[00:56:14] Speaker 00:
So Your Honor, first of all, if it's article three.

[00:56:16] Speaker 02:
I understand, but you have never argued it.

[00:56:18] Speaker 00:
We haven't, but we've made the same arguments through our statutory lens.

[00:56:22] Speaker 00:
And under this court's precedent prior to LabCorp, which is why the Supreme Court granted LabCorp, the argument was not available to us, right?

[00:56:29] Speaker 00:
The circuit precedent foreclosed it, which is why the Supreme Court granted CERT.

[00:56:33] Speaker 02:
Right, and if it ends up, well, it wasn't why, actually, because, excuse me, because the issue in LabCorp was, assuming that some people in the class don't have standing, is that a problem?

[00:56:44] Speaker 00:
Yes, your honor.

[00:56:45] Speaker 00:
If they hold as a matter of Article 3 that you can't go forward with such a class, then the court would have to address it because this could not go forward.

[00:56:54] Speaker 00:
The court literally wouldn't have jurisdiction.

[00:56:56] Speaker 00:
And we would submit that if the court said as a matter of- Something went wrong with the microphone.

[00:57:01] Speaker 02:
I don't know why.

[00:57:01] Speaker 00:
I'm sorry, your honor.

[00:57:02] Speaker 00:
Can you hear me now?

[00:57:03] Speaker 02:
Well, go ahead.

[00:57:04] Speaker 02:
But there is something wrong.

[00:57:06] Speaker 00:
I'm sorry.

[00:57:06] Speaker 00:
It's your fault.

[00:57:08] Speaker 00:
Go ahead.

[00:57:09] Speaker 00:
OK.

[00:57:10] Speaker 00:
So if the court holds as a matter of Article 3, which I don't think they will,

[00:57:13] Speaker 00:
then the court would have to address it.

[00:57:15] Speaker 00:
But if they held, as a matter of Rule 23, that you couldn't have more than a diminished number of people with Article 3 standing, which is what the Solicitor General argued, so if they adopt the Solicitor General's view, then this class, we think, could not go forward, and that would be a change in Ninth Circuit law, and so we would be entitled, I think, to brief that.

[00:57:34] Speaker 00:
So if the court rules against us...

[00:57:37] Speaker 02:
So you didn't argue any of this, and you certainly didn't argue it as a matter of Rule 23.

[00:57:44] Speaker 00:
Your Honor, I have to agree with that.

[00:57:46] Speaker 00:
But as the Lab Court decision shows, that was foreclosed by circuit case law.

[00:57:50] Speaker 00:
So it's not something we could have put forward in good faith.

[00:57:54] Speaker 00:
We could have dropped a footnote to say we're preserving it for the Supreme Court.

[00:57:56] Speaker 02:
I mean, our question right now is, should we wait for the Lab Court decision?

[00:57:59] Speaker 00:
So Your Honor, I think as a practical matter, the Lab Court decision is going to come down by July 1.

[00:58:05] Speaker 00:
I don't know how quickly you're going to move, but I argued a case in December.

[00:58:08] Speaker 00:
We're still waiting for it.

[00:58:08] Speaker 00:
So my guess is July 1 is not going to be.

[00:58:11] Speaker 00:
So I think you should wait for LabCorp.

[00:58:13] Speaker 00:
LabCorp could shed light both on the Article 3 question, but also it may say some stuff that resonates or implicates the van kind of issues about how you think about classes that have people who can and can't win.

[00:58:25] Speaker 00:
The focus is on Article 3.

[00:58:26] Speaker 00:
So I think you should, if the answer is, should you decide in the next two weeks, I would say no.

[00:58:30] Speaker 02:
My only guess is that you've probably forfeited any issue under Rule 23.

[00:58:36] Speaker 00:
So Your Honor, we love it.

[00:58:37] Speaker 02:
But there still might be a backup Article 3 issue.

[00:58:40] Speaker 00:
Yes, for sure.

[00:58:41] Speaker 00:
And I guess all I would like is, I mean, if and when the court does, if the court doesn't dig, which is certainly a possibility that they will.

[00:58:50] Speaker 00:
But if they don't dig, we would like the chance to brief it.

[00:58:53] Speaker 00:
And just to plant in your head, Judge Berzog, this notion,

[00:58:56] Speaker 00:
that yes, we didn't argue it, but it was foreclosed by circuit precedent.

[00:58:59] Speaker 00:
I think that's quite a high standard to hold us to.

[00:59:01] Speaker 02:
I'm sorry, I didn't hear that.

[00:59:02] Speaker 00:
I said, just to plant a seed in your head, if the court ends up ruling on the Rule 23 issue, I think it would be quite harsh to hold it against us for not raising it, because it was foreclosed by circuit precedent.

[00:59:15] Speaker 00:
And so for us to preserve everything that's foreclosed by circuit preference.

[00:59:20] Speaker 00:
Excuse me?

[00:59:21] Speaker 02:
The people in LabCorp raised it.

[00:59:23] Speaker 00:
So the people, I actually haven't gone back to look at the LabCorp briefing.

[00:59:26] Speaker 00:
I think there's some question about what they preserved and what they didn't.

[00:59:29] Speaker 00:
But I take your honor's point.

[00:59:30] Speaker 00:
We just ask for the chance to brief it.

[00:59:32] Speaker 00:
Thank you very generous.

[00:59:33] Speaker 00:
I appreciate the extra time.

[00:59:34] Speaker 01:
Thank you both sides for the helpful arguments.

[00:59:36] Speaker 01:
This case is submitted and we are adjourned.