[00:00:08] Speaker 00: Mr. Stone Street for the appellants, Mr. Gagwin [00:00:52] Speaker 01: Good morning. [00:00:53] Speaker 01: Good morning, your honors, and may it please the court. [00:00:56] Speaker 01: This circuit settled the dispositive issues presented in this appeal in OPM. [00:01:03] Speaker 01: Mitigation cost, credit monitoring cost, credit repair cost, and time lost as a result of a data breach are actual damages. [00:01:13] Speaker 01: On this basis alone, we ask that you reverse and remand the district court opinion so that this case may proceed beyond the pleading stage. [00:01:22] Speaker 02: Before we get to the merits, could you talk about the jurisdictional issue that we flagged? [00:01:29] Speaker 01: Yes, Your Honor. [00:01:29] Speaker 01: In reviewing the building the Babbitt case, discussing the endangered species and the fairy shrimp, on the issue of the certification under Rule 54B, it is appellant's position that this court firmly possesses jurisdiction. [00:01:48] Speaker 01: The Building v. Babbitt case made clear that in assessing whether or not a 54B certification is proper, it is assessed under an abuse of discretion standard. [00:01:58] Speaker 02: The things that would be considered would be- Looking to the relatedness or not of the claims that you're trying to bring before us and the claims that are left in the district court. [00:02:12] Speaker 01: Yes, well, this is exactly the situation where a 54B is necessary because if this court were to determine it did not have jurisdiction and send it back down to the district court, the district court would then presumably enter a more clear order affirming that this court did have jurisdiction and we would be right back where we are. [00:02:32] Speaker 01: But more importantly, for the sake of . [00:02:35] Speaker ?: . [00:02:35] Speaker ?: . [00:02:36] Speaker 02: two possible problems here. [00:02:38] Speaker 02: One is that the district court didn't explain why it wanted to certify. [00:02:44] Speaker 02: But another one, regardless of any explanation, might be that the claims before the district court are entirely related to and bound up in the claims that are before us. [00:02:58] Speaker 02: They all arise out of the same data breach, and they [00:03:05] Speaker 02: The identical claims, a contract claim under Maryland law arising out of this breach is here and is also below. [00:03:14] Speaker 01: Your Honor, if we were to proceed below, it would go to final judgment at some point, either way, and we will be right back where we are with... And our main jurisdictional statute says we only take final judgments. [00:03:28] Speaker 01: And it was certified as a final judgment based on the inefficiency of proceeding with a very small percentage of the case and the risk of returning back to the district court and having to go through discovery and trial again. [00:03:44] Speaker 01: So it did support judicial economy and judicial efficiency to certify under Rule 54B. [00:03:49] Speaker 01: Make no mistake, the claims of the Tringlers, which were the only ones that were preserved, all of their other claims have been dismissed as well, with the exception of two. [00:04:00] Speaker 01: To return the case and determine that this court does not have jurisdiction will only guarantee that this case comes back up on appeal. [00:04:09] Speaker 01: The other reason to accept this certification of the judge is because the judge made it clear in its opinion, and I'll just read [00:04:16] Speaker 01: The quote, in reaching this outcome, the court acknowledges the difficulty of applying traditional tort and contract principles in the contemporary context of data security. [00:04:27] Speaker 01: So there you have the court requesting from this court some instruction. [00:04:32] Speaker 01: One business day before the appeal was filed in this case, and after the district court made its ruling, the decision at OPM came out. [00:04:41] Speaker 01: And in the context of the privacy claim, OPM recognized the exact damages that were rejected by the district court. [00:04:51] Speaker 01: So where the district court would not recognize [00:04:53] Speaker 01: mitigation cost or credit repair, OPM specifically did recognize. [00:04:59] Speaker 03: The problem is with the Tringler's claim. [00:05:03] Speaker 03: We have some of the Tringler's claims in front of us and others not. [00:05:07] Speaker 03: Yet we said in the Tolson case in 1984, when claims are so closely related, [00:05:17] Speaker 03: that they would fall a foul of the rule against splitting claims if brought separately. [00:05:22] Speaker 03: They do not qualify as separate claims within the meaning of Rule 54B. [00:05:28] Speaker 03: So how can we have some of the Tringler's claims [00:05:32] Speaker 03: before us on appeal, and others not, when they all come out of the same operative set of facts. [00:05:40] Speaker 01: The reason that this court has all of the claims before it is because of the exception to the general rule under 54B, where a district court can determine and give jurisdiction to appellate courts to provide instruction and to provide reasoning so that judicial ... Under Tolson, that doesn't seem to be a power that the district court has. [00:06:01] Speaker 01: It's also notable that those claims are stayed right now. [00:06:06] Speaker 02: Which cuts against you. [00:06:08] Speaker 02: Which proves that what's before us is intimately related to what's pending below. [00:06:17] Speaker 01: If what the court would be looking for is more clarity in the 54B order, I think it's important to recognize the policy behind 54B is to avoid piecemeal appeals. [00:06:31] Speaker 01: And what it will be guaranteeing if this is dismissed for lack of jurisdiction is that the case will be returned to this court in its third appeal of this case. [00:06:42] Speaker 05: I don't deny that there's some intuitive force to what you're saying because it just seems to me that your point is, look, [00:06:50] Speaker 05: There's basically the same stuff going on anyway. [00:06:53] Speaker 05: We might as well get an early answer on it so that we don't have to go forward in the district court and literally be told later on that we went forward to do something that we shouldn't have been doing anyway. [00:07:01] Speaker 05: That's kind of your argument is, look, why don't we just get an early assessment from the Court of Appeals on whether we should even go forward with claims that are really closely related to the ones that are up here. [00:07:11] Speaker 05: And that's just buying into the notion that all the claims are closely related. [00:07:14] Speaker 05: And your point is just, well, let's get an early answer. [00:07:16] Speaker 05: It's just, and I'm not saying that that doesn't have some intuitive force in the abstract, but it just seems to run up against exactly what our cases say. [00:07:23] Speaker 05: For example, even in the building industry case, what we said is the district court should properly consider such factors as whether the claims under review were separable from the others, and whether the nature of the claims already determined was such that no appellate court would have to decide the same issues more than once. [00:07:38] Speaker 05: But taking the same consideration you're pointing to and having it dictate the opposite conclusion that precisely because they're intimately associated with one another all the more reason not to certify and to have the proceedings go forward in the district court all the way to the end and then everything comes up at once. [00:07:55] Speaker 01: I guess the response. [00:07:59] Speaker 01: The first response that is it is more than just a request for an early determination on some of these issues. [00:08:05] Speaker 01: It has now become at least an appellate's opinion that that. [00:08:09] Speaker 01: early opinion has already been issued in OPM. [00:08:12] Speaker 01: That would be first. [00:08:13] Speaker 01: But secondly, I think what has happened with the Tringlers and everyone else's claim is that the court has made and ruled for a special arena of damages in the context of data breach cases. [00:08:25] Speaker 01: And the court has said, I must perceive a later actual misuse in identity to have to recognize any claims at all. [00:08:33] Speaker 01: So in that respect, that is a separable issue. [00:08:37] Speaker 01: So what the court would be looking at, [00:08:39] Speaker 01: would be, is it correct to say, and it's interesting because OPM also had victims of tax refund fraud, but to say, we recognize that that is separable and these other claims, which would be loss mitigation, credit repair, credit monitoring, is a separable damage that would impact nine of the claims and the vast large majority of the putative class that this court could resolve. [00:09:03] Speaker 01: So it is separable. [00:09:05] Speaker 01: Conceptually, because it was a false determination and distinction unique just to the data breach context that the court would require immediate misuse of data in order to proceed past the dual B6 stage. [00:09:20] Speaker 01: And that is what the reversible error is throughout the entire opinion, is this false distinction and damages in requiring an immediate misuse of the data. [00:09:32] Speaker 01: We believe that the court does firmly possess jurisdiction. [00:09:35] Speaker 05: What we would ask is that but do you think we put firmly possessed jurisdiction for the reason that all the district court had to do was make the certification that's called for by the letter of fifty four be regardless of the reason why there's no just reason for delay because I read [00:09:53] Speaker 05: building industry to stand for the proposition that it's not enough just to encamp what the rule says. [00:09:59] Speaker 05: There also has to be a basis for understanding what the reason is for thinking there's no just reason for delay. [00:10:05] Speaker 05: And the district court didn't do that in its order at least. [00:10:07] Speaker 05: It didn't expand upon the reasons. [00:10:09] Speaker 05: So then the question becomes for us [00:10:11] Speaker 05: Do we look past the fact that there's no explanation on the face of the order and try to find an explanation from the record, which may or may not be there? [00:10:19] Speaker 05: Or do we not care about the fact that there's no explanation of the reasons for jurisdictional purposes? [00:10:25] Speaker 01: So, Your Honor, I think you do care, and you answered it yourself, Your Honor, in saying that you would look at the record. [00:10:34] Speaker 01: So in reading Building v. Babbitt, [00:10:36] Speaker 01: It states that if it's self-evident from a review of the record, then you can possess jurisdiction. [00:10:42] Speaker 05: So I think you... Then that's your view, is that this is a case... You think A, we need to be able to find reasons as a jurisdictional matter, because I'm not even sure about that, actually. [00:10:52] Speaker 05: I'll bracket that. [00:10:53] Speaker 05: And then B, you think this is a case in which the reasons are apparent from the record. [00:10:58] Speaker 01: That's exactly right, Your Honor. [00:10:59] Speaker 01: We believe that it is evident, to use the Babbitt language, from the record that this court possesses jurisdiction. [00:11:06] Speaker 01: And we believe, to make the pragmatic point, that [00:11:11] Speaker 01: In viewing the 54B certification and determining that the language was not explanatory enough, it would really go against judicial economy and judicial administration because it could create duplicative discovery. [00:11:25] Speaker 01: It could create another delay and another piecemeal appeal. [00:11:29] Speaker 01: So the very public policy behind 54B supports that this panel would review the record and find that it does [00:11:38] Speaker 05: And what does the record tell? [00:11:39] Speaker 05: If your argument is we look at the record and it's obvious, what is obvious? [00:11:44] Speaker 01: Well, this is what the record would tell is that the case is at its inception and never again will this court have to determine if the pleading properly supports or properly alleges damages. [00:11:57] Speaker 01: That decision will never have to be made again. [00:11:59] Speaker 01: That can be made dispositively here today. [00:12:01] Speaker 01: Does the pleading allege actual damages sufficiently? [00:12:06] Speaker 01: That is a point that this court can rule upon and will never have to rule upon and has no risk of ruling upon again. [00:12:20] Speaker 02: classic argument for the 1292B certification. [00:12:26] Speaker 02: There is a threshold legal issue in the case that can be decided early and that will drive resolution of the case. [00:12:36] Speaker 02: That's a 1292B argument. [00:12:39] Speaker 02: It's not a 54B argument because the 54B law turns on relatedness of the claims and you haven't given us [00:12:49] Speaker 02: Any reason to think that the Tringler's breach of contract claim is transactionally unrelated to their negligence and fraud and statutory claims. [00:13:01] Speaker 02: You're just trying to put some, you have a vehicle for making the argument you want to make. [00:13:06] Speaker 02: It's just not through a 54B certification. [00:13:10] Speaker 01: Interestingly enough, Your Honor, the record will show that the appellants asked for that type of certification. [00:13:17] Speaker 01: And the district court then issued an order and said, well, should we do it through the question 1292 route or should we do it through 54B? [00:13:28] Speaker 01: And then both parties recognizing that proceeding through the case and doing discovery when it would ultimately be appealed at the end, [00:13:35] Speaker 05: then said 54B would be acceptable to us, Your Honor, but initially the record... We can't do harmless error and say that it would be the same answer under 1292B anyway, right? [00:13:45] Speaker 05: So we have to address it as a 54B certification. [00:13:50] Speaker 01: I would just say that point is made to show that the record has more than just the... It appears that the court is highly concerned with the limited language in the 54B order. [00:13:59] Speaker 01: And I would just say that that is part of the record showing that the dispositive questions on this appeal, which is whether or not these types of damages will be recognized in this circuit, can be answered through OPM. [00:14:12] Speaker 01: So a simple reversal and remanding with instruction to follow the authority in OPM could address all of these issues efficiently for the parties. [00:14:24] Speaker 05: And that's what we're asking. [00:14:25] Speaker 05: But even if all that happens is [00:14:27] Speaker 05: that it's improper under 54 B and suppose it goes back down and then the district court says all right you know what on reflection it actually should have been a 1292 be all along so we'll do it under 1292 B and it comes back up well then it's at least properly before us as a jurisdictional matter and that would be acknowledging that it wasn't properly before us which even if it seems like just a runaround it's an under understanding that point I guess what the [00:14:51] Speaker 01: Hopefully both parties, but particularly the plaintiffs because the breach happened in 2014 want to avoid is sending it back down only to send it immediately back up under 1292 when this court does have the discretion to look at the 54 be order. [00:15:07] Speaker 01: and determine this is enough of an issue and is separable enough of an issue to say that this is a final order and reverse it and recognize the same damages. [00:15:16] Speaker 05: It just doesn't seem separable because it seems like everything you're saying bolsters the proposition that you made in the district court, which is, look, you definitely should stay everything that's pending right now because it's completely bound up in what's up on appeal. [00:15:30] Speaker 05: There's no sense in going forward. [00:15:31] Speaker 05: And all of that just seems like a great argument for why this isn't a 54B case. [00:15:37] Speaker 05: Even if the parties hadn't thought of it that way before, it all seems to support the proposition that this isn't typically what we look at in a 54B context. [00:15:47] Speaker 01: If your honors are willing to accept the same exact issues under 1292, what we would request from the court is an additional review under Building v. Babbitt of the record [00:15:58] Speaker 01: to determine if it can be apparent for you all to possess jurisdiction so that this case can move forward. [00:16:04] Speaker 01: It is still at the inception of the case. [00:16:06] Speaker 05: Can I ask you one question? [00:16:07] Speaker 05: I know we've taken your time with the judicial question, but obviously it's important because we have to determine whether we have the authority to even have this case. [00:16:13] Speaker 05: So one possible way to look at the 54B question, [00:16:17] Speaker 05: and I just asked for your reaction on this, is that under building, in the under building industry's case, the jurisdictional requirement is that the 54B certification be made by the district court. [00:16:29] Speaker 05: The district court can't have appropriate words and make the determination. [00:16:33] Speaker 05: And one way to look at it, possibly, I'm not saying I necessarily think this is right, but it's possible, is that the district court did do that here. [00:16:40] Speaker 05: And then there's the second question of whether there's an adequate explanation of the reasons why there's no just reason for delay. [00:16:47] Speaker 05: And as to that, one possible way to look at it is, we'll look as to that, that part of it isn't jurisdictional. [00:16:53] Speaker 05: That part of it has to be flagged by somebody who's objecting on appeal. [00:16:58] Speaker 05: And in this case, there was no objection made by anybody, that there was no adequate explanation of the reasons. [00:17:04] Speaker 05: Because as I understand building industries, I think the appellee there actually raised an objection. [00:17:09] Speaker 05: And then the argument would be, well, as to that, it's an abuse of discretion review where somebody actually flags it. [00:17:16] Speaker 05: But it's not jurisdictional in the sense that the court has to notice it of its own volition even if nobody flagged it. [00:17:23] Speaker 01: Yes. [00:17:24] Speaker 01: Yes, Your Honor, and no one did object, and it's in discussions with Appellee's Council, we understand that they still do not object to this court-possessing jurisdiction. [00:17:37] Speaker 01: That is a distinction in the case. [00:17:39] Speaker 02: No one's objected to it, and I mean, frankly... The only problem with that is that policing the limits of the 54B certification is designed not to protect the rights of litigants, but [00:17:54] Speaker 02: the integrity of the final judgment rule, which is our issue. [00:17:59] Speaker 01: Yes, and that's well taken, Your Honor. [00:18:02] Speaker 01: The lack of explanatory language in the 54B order could still be reviewed based on building the habit in the narrow lens of abuse or discretion to confer jurisdiction of this court. [00:18:17] Speaker 01: So this court could still determine, although it's not to the explanation to give us the full explanation that we would appreciate because no one has objected, because [00:18:31] Speaker 01: of the progress and record of this case, that we still would accept jurisdiction and make rulings on the issue. [00:18:37] Speaker 01: If it's okay with your honors, could I address just a few of them? [00:18:41] Speaker 02: We'll give you time, but let me just ask one more question along these lines, which is, [00:18:48] Speaker 02: Assume for the sake of argument that I think 54B is all about interrelatedness of the claims and the argument you want to make just goes under the 1292B bucket. [00:19:04] Speaker 02: 54B is about interrelatedness. [00:19:08] Speaker 02: Is there any explanation that the district court could have given or could give on remand that [00:19:18] Speaker 02: What's before us is not interrelated with what's pending below. [00:19:23] Speaker 01: I think the argument for that, that it's not interrelated, is that this is a field of damages for all of the claims, not just the tringlers. [00:19:33] Speaker 01: This is a field of damages for all of the claims that the district court refuses to recognize. [00:19:39] Speaker 01: So that would be the unrelated separable issue, is that this is a field of damages that the court refused to recognize, so it should be addressed by this court. [00:19:48] Speaker 01: And it's our position. [00:19:49] Speaker 01: that it already has been addressed by this circuit in OPM because of the exact damages that OPM recognized, including credit repair. [00:19:57] Speaker 03: Don't you need to show that what's in front of us is not related to what's still in the district court? [00:20:05] Speaker 03: That's the interrelatedness question. [00:20:08] Speaker 03: How would you answer that? [00:20:10] Speaker 03: How would you say what's still down at the district court on the shrinkage claim is fundamentally different from what's on appeal? [00:20:16] Speaker 01: Okay, so the fundamental difference would be that really the only things that the tringlers could get were the immediate out-of-pocket loss after the breach, which is not the question on this appeal, that you have immediate misuse of data. [00:20:33] Speaker 01: The real question on this appeal is are reasonable mitigation efforts, even without later misuse, [00:20:41] Speaker 01: Actual damages. [00:20:42] Speaker 01: That's the real question on this appeal. [00:20:45] Speaker 01: So that that is a separable question that can be distinctly answered for this court. [00:20:50] Speaker 05: But then why stay the things in the district court like I just it's hard for me to see how two things can be true that that was essentially for the that was to say [00:21:01] Speaker 01: preservation of the party's resources, your honor, to not proceed through discovery and then wait for the appellate opinion and then go back through discovery. [00:21:10] Speaker 01: So that's effectively why that was stated. [00:21:13] Speaker 03: Well, why not go through discovery if it's on a different issue? [00:21:15] Speaker 03: Why would anything that's going to happen appear? [00:21:17] Speaker 03: The defendant. [00:21:19] Speaker 03: It seems to me that a judgment was made that in fact they are. [00:21:22] Speaker 01: There were concerns because it's a putative class of moving forward with some of the claims for the appellants and not the vast majority of the other ones. [00:21:32] Speaker 01: So that was the primary reason for the appellants. [00:21:34] Speaker 01: But care first. [00:21:36] Speaker 01: did not consent to the stay or agree with the stay. [00:21:40] Speaker 01: So I wouldn't take that as indicative of whether or not they're related. [00:21:44] Speaker 01: It really was just a matter of the plaintiff trying to properly maintain this putative class for the million customers of Care First in this case. [00:21:54] Speaker 03: Let's go with the merits. [00:21:58] Speaker 01: Okay. [00:21:59] Speaker 01: Thank you, your honor. [00:22:02] Speaker 01: In going to the merits, I first want to address the District of Columbia Consumer Protection and Procedures Act claim, which is one of the strongest claims in the case. [00:22:10] Speaker 01: And that claim has been eliminated for everyone. [00:22:13] Speaker 01: That claim does not exist anymore. [00:22:16] Speaker 01: This claim is predicated on two things, the misrepresentations that Care First would safeguard data, but also the specific misrepresentation that the data would be encrypted. [00:22:28] Speaker 01: Failing to encrypt the data made it both more accessible and more valuable to the data thieves who still possess it to this day. [00:22:36] Speaker 01: So that is a material misrepresentation. [00:22:39] Speaker 01: This is a claim that should not have been dismissed by the district court. [00:22:43] Speaker 01: Your honors can look at the Velkoff v. MedStar opinion, where the District of Columbia Court of Appeals ruled in the context of a data breach, where it was dismissed at the trial level, the Court of Appeals of the District of Columbia ruled that the District of Columbia Consumer Protection and Procedures Act claim should persist and reverse the dismissal under 12b6, which is exactly what happened in this case through the District Court. [00:23:09] Speaker 01: That is a 2018 opinion [00:23:12] Speaker 01: And the district court should have applied it in the consumer claim is a strong claim. [00:23:16] Speaker 01: It should have persisted. [00:23:17] Speaker 01: It's also the appellant's position that the case of Koharis was too broadly applied. [00:23:23] Speaker 01: First, because Koharis V State Farm itself [00:23:27] Speaker 01: went to the summary judgment stage. [00:23:29] Speaker 01: This case is still in its inception at the 12b stage. [00:23:33] Speaker 01: So to take the summary judgment opinion of Koharis, which had the benefit of discovery, and rule that there's no way any of the plaintiffs in this case could maintain any torts was reversible error. [00:23:46] Speaker 01: In effect, we're asking for this court to follow the circus logic. [00:23:52] Speaker 03: Tell me about your argument about Randolph. [00:23:54] Speaker 03: Why doesn't Randolph [00:23:56] Speaker 01: So eliminate your mitigation. [00:23:59] Speaker 01: The reason is we have to follow Randolph. [00:24:01] Speaker 01: You do not have to follow Randolph. [00:24:03] Speaker 01: You do not have to follow Randolph because Velkoff was in 2018 and Velkoff was clear that in the context of a data breach, first you have standing. [00:24:12] Speaker 01: which is a different ruling than Randolph, where they ruled Randolph did not have standing, and then second, that the claims could persist past the damages phase. [00:24:21] Speaker 01: So if this court is looking for a District of Columbia Court of Appeals case to find instructive, it should take the more recent analysis in Velkoff. [00:24:30] Speaker 01: The fact that Randolph [00:24:34] Speaker 01: Also, Randolph was the stealing of a laptop, Your Honor. [00:24:38] Speaker 03: I'm sorry, I'm not recognizing the Velkoff case, and maybe that's my fault, but is it in your brief? [00:24:43] Speaker 03: I'm not either. [00:24:46] Speaker 03: I don't believe that it was, Your Honor. [00:24:47] Speaker 03: Well, why not? [00:24:50] Speaker 03: It seems to be absolutely critical to the argument you're making to me right now. [00:24:55] Speaker 03: You argued Randolph. [00:24:56] Speaker 03: That's what I'm prepared to talk about and understand. [00:24:59] Speaker 03: Why are we getting a new case here? [00:25:01] Speaker 01: I came across it. [00:25:04] Speaker 01: It seemed like a very strong and good case and I don't know if it perhaps it came out later. [00:25:09] Speaker 03: You know the rules. [00:25:10] Speaker 01: Yes. [00:25:10] Speaker 01: So let's. [00:25:11] Speaker 01: Okay. [00:25:12] Speaker 01: Well, okay. [00:25:12] Speaker 01: I'll discuss Randolph. [00:25:14] Speaker 01: Yeah, I'll discuss Randolph. [00:25:15] Speaker 03: That's the horse you rode in here on. [00:25:18] Speaker 01: The other reason that Randolph should not be relied upon by this court is because it was the stealing of a laptop, which is hardware, which is the same as SAIC. [00:25:31] Speaker 01: So there's a field of data breach opinions that recognize if it's just a laptop that's taken or a tablet, that could just be a regular thief who is stealing hardware. [00:25:40] Speaker 01: The danger of . [00:25:41] Speaker 01: . [00:25:41] Speaker 01: . [00:25:41] Speaker 03: Is this the type of thing that we certify to the D.C.? [00:25:43] Speaker 03: ? [00:25:44] Speaker 03: court, they haven't had a data breach case like this, right? [00:25:48] Speaker 03: At least they didn't have it in Randolph. [00:25:50] Speaker 03: Are you telling me Velkoff is a data breach case? [00:25:52] Speaker 01: So, well, I believe that Velkoff ruled that you do have standing in a data breach and you do have consumer claims from the... I don't know anything about that. [00:26:00] Speaker 01: But to answer your question, because Epic also, Epic also, in its amicus brief, I think asked the court to certify, the appellants would prefer [00:26:11] Speaker 01: The reversal in remand with instruction to proceed and follow the . [00:26:15] Speaker 01: . [00:26:15] Speaker 01: . [00:26:16] Speaker 03: Sure, but we're here in diversity. [00:26:19] Speaker 03: We have to follow the law of the District of Columbia. [00:26:21] Speaker 03: We don't get to decide what that law ought to be, right? [00:26:25] Speaker 01: Yes, Your Honor. [00:26:26] Speaker 03: That's the problem with your OPM argument. [00:26:29] Speaker 01: We just don't get to do that. [00:26:30] Speaker 01: In the order of preference for the appellants being [00:26:36] Speaker 01: dismissal of the appeal reversal and certification to the district, Columbia Court of Appeals certification will be the second. [00:26:44] Speaker 01: Did you ask us to certify? [00:26:46] Speaker 01: We did not request that we requested reversal. [00:26:48] Speaker 01: I know that the meekest brief requested that certified question from reviewing the briefs at hand. [00:26:56] Speaker 03: There was also, I'm just worried we don't have, if we don't have a case from the District of Columbia that resolves the question clearly, and you're saying Randolph does not, right? [00:27:07] Speaker 03: You're saying Randolph does not. [00:27:08] Speaker 03: Does not. [00:27:09] Speaker 03: Then why isn't that what a court sitting in diversity is supposed to do? [00:27:14] Speaker 01: That could be. [00:27:17] Speaker 01: The reason that the appellants believe that reversal would be necessary is because the exact damages in this case that the district court refused to recognize have been recognized by the circuit. [00:27:28] Speaker 01: So that's why the appellants are requesting. [00:27:31] Speaker 03: But not under D.C. [00:27:32] Speaker 03: law, right? [00:27:33] Speaker 01: But damages presumably would be damages. [00:27:36] Speaker 01: So damages in the context of the Privacy Act, which in fact has a heightened requirement for damages. [00:27:43] Speaker 01: It required a pecuniary loss. [00:27:45] Speaker 03: Here the bar is not- We don't know what the answer is under DC law, and that's the law that we have to apply. [00:27:49] Speaker 01: I have not a- That's correct, Your Honor. [00:27:51] Speaker 01: That is correct. [00:27:53] Speaker 01: Okay. [00:27:54] Speaker 01: Thank you. [00:27:54] Speaker 01: So the appellants are asking for the reversal and remand. [00:27:57] Speaker 01: Thank you, Your Honors. [00:28:00] Speaker 01: Okay. [00:28:00] Speaker 01: Thank you very much. [00:28:06] Speaker 04: Good morning, Your Honor. [00:28:07] Speaker 04: Let's do jurisdiction first. [00:28:08] Speaker 04: Absolutely. [00:28:09] Speaker 04: May it please the Court, Matt Gaywood on behalf of the appellees. [00:28:12] Speaker 04: I think there are two concepts on the jurisdictional point that there was some conflation during Mr. Stone Street's argument. [00:28:21] Speaker 04: One is the jurisdictional prerequisite, what actually gives the court jurisdiction. [00:28:28] Speaker 04: And that's mandated by the rule itself. [00:28:31] Speaker 04: The district court has to expressly determine that there's no just reason for delay and it has to be a final judgment. [00:28:38] Speaker 04: There's no question in this case that the jurisdictional bar has been met. [00:28:44] Speaker 04: The question is, and it's the second point, the second point is, is it evident [00:28:52] Speaker 04: that the district court did not abuse its discretion in making the certification. [00:28:59] Speaker 05: And you don't think that's jurisdictional? [00:29:01] Speaker 05: It's not part of the inquiry you don't think is jurisdictional? [00:29:03] Speaker 04: For example, there's a Fifth Circuit case this year that looked specifically at that issue and said that the statement of reasons is not a jurisdictional bar. [00:29:12] Speaker 04: What's the Fifth Circuit case? [00:29:13] Speaker 04: It's Johnson versus Aquin loan servicing. [00:29:18] Speaker 04: 916 F3rd 505. [00:29:20] Speaker 04: The Third Circuit has also expressly looked at that issue and for a long time in the Third Circuit they viewed it as a jurisdictional bar and then it was determined in a later case that it's not a jurisdictional bar. [00:29:32] Speaker 02: Well it's one thing to say that giving a statement of reasons is not required much less a jurisdictional prerequisite [00:29:46] Speaker 02: It's a different thing to say that when we review substantively, even if we think there's no requirement to state reasons, still very clear under Sears-Robic and those cases that we actually have to review the interrelatedness of the claims. [00:30:06] Speaker 02: Are you saying that substantive inquiry is not jurisdictional? [00:30:13] Speaker 04: I'm saying it's not jurisdictional. [00:30:14] Speaker 04: It's part of this Court's analysis to determine whether the District Court abused its discretion in making the certification order. [00:30:22] Speaker 04: And really that second bucket is the key for this Court, right? [00:30:27] Speaker 04: Did the District Court abuse its discretion? [00:30:29] Speaker 04: We would say it did not. [00:30:30] Speaker 04: The Supreme Court's been clear in Curtis Wright and Sears that the District Court has significant discretion in determining whether to certify under 54B or not. [00:30:39] Speaker 02: Likewise said that the criterion for evaluating the discretion is the relatedness of the claims. [00:30:46] Speaker 04: That's right. [00:30:47] Speaker 04: The Curtis White case especially made clear what to look for in determining . [00:30:52] Speaker 02: . [00:30:52] Speaker 02: . [00:30:52] Speaker 02: What is the colorable argument giving some degree of discretion to the district court? [00:31:00] Speaker 02: What's the colorable argument that the claims before us are unrelated to the claims pending below? [00:31:07] Speaker 04: They are absolutely unrelated and the district court made this clear if you look at the record. [00:31:11] Speaker 04: There are two buckets of claims before you. [00:31:13] Speaker 04: One is all of the tort claims from every one of the named plaintiffs, including the Tremblers. [00:31:18] Speaker 04: The district court dismissed all of them and her final judgment on all of them. [00:31:22] Speaker 04: That's one bucket. [00:31:23] Speaker 04: I think that's an easier bucket in explaining the difference between what is left at the district court versus what is here. [00:31:29] Speaker 02: Sorry, say it one more time. [00:31:31] Speaker 04: All of the tort claims brought by all of the named plaintiffs. [00:31:35] Speaker 04: The district court said as a matter of law, as a matter of D.C. [00:31:39] Speaker 04: law, what's being stated in these alleged tort claims [00:31:43] Speaker 04: do not constitute viable causes of action that the case can move forward into discovery. [00:31:48] Speaker 04: So as a matter of law, this court must decide whether any named plaintiff can bring the tort claims that are being alleged in the complaint. [00:31:55] Speaker 04: That's the first bucket. [00:31:57] Speaker 04: The second bucket is the damages issue for all those claims that require actual damages to proceed, an allegation of actual damages. [00:32:06] Speaker 04: The district court carved out the two named plaintiffs, and it was very explicit in this, the district court carved out the two named plaintiffs that alleged exposure to their data plus actual misuse. [00:32:20] Speaker 02: So let's just take those one at a time. [00:32:24] Speaker 02: Okay, the tort claims. [00:32:29] Speaker 02: You still have... There are five tort claims. [00:32:33] Speaker 02: Right. [00:32:34] Speaker 02: I mean, you know, the way I was thinking about it is you have 11 claims and five sets of plaintiffs, right? [00:32:43] Speaker 04: There are seven named plaintiffs. [00:32:48] Speaker 02: Right, but I'm counting the tringlers. [00:32:50] Speaker 04: All seven are here on appeal with respect to the tort claims. [00:32:54] Speaker 02: I understand that, but the possible permutations of plaintiffs and claims, if you count the tringlers and the Bailey's as one said, is 55 different boxes in the matrix of five plaintiffs and 11 claims, and 53 of them are before us, and two are not. [00:33:15] Speaker 04: It's actually more than 53. [00:33:17] Speaker 04: It's over 70 once you count them all, I believe, when you count the Tringlers as well. [00:33:25] Speaker 04: There are 11 causes of action. [00:33:27] Speaker 02: For instance, on the Tringlers contract claim versus tort claims, number one, they arise out of the same set of operative facts, and number two, [00:33:43] Speaker 02: A lot of the legal issues on the merits turn on arguments about the extent to which tort claims are or are not viable because they may or may not be essentially mispleaded contract claims. [00:34:00] Speaker 04: But the issues that this court has to decide in deciding this appeal [00:34:06] Speaker 04: are not intertwined with the same issues of law with the claims that are remaining at the district court. [00:34:12] Speaker 04: And this is what was key in the Babbitt case. [00:34:14] Speaker 04: So if you look at the two issues in Babbitt, the one that was decided by the district court and the one that came to the circuit on appeal, the two issues related to the Fish and Wildlife Service decision to list the certain species of fairy shrimp as critically endangered, that's one of the issues. [00:34:35] Speaker 04: should the species have been listed as critically endangered. [00:34:38] Speaker 04: The second issue that was not decided by the district court that was remanded to the Department of Interior was should the habitat where the shrimp live, should it be listed as a critical habitat under the Endangered Species Act. [00:34:56] Speaker 04: This court in its penultimate paragraph in Bobbitt when it was looking at the 54B certification, it specifically said that the issues of fact and law with respect to these two issues before it were so intertwined that by us deciding the issue that was before them at the time, there's no guarantee that we wouldn't have to decide this again down the road. [00:35:17] Speaker 04: In those two issues, they're both required by the Secretary of Interior to make those two decisions within the same [00:35:25] Speaker 04: section of the Endangered Species Act and the Secretary of Interior is actually supposed to make both those determinations concurrently according to the Act. [00:35:34] Speaker 04: So they are inherently intertwined. [00:35:36] Speaker 04: The two issues are intertwined. [00:35:38] Speaker 04: That was one of the reasons that Bobbitt couldn't look at the record where you have just the one-page certification order from the District Court and say that it was clear from the rest of the record that [00:35:51] Speaker 04: we should hear the issue that is on appeal because there was no guarantee in that case that you wouldn't have to decide the issue again down the road. [00:35:58] Speaker 04: Here there's no risk of that because the two issues before this court are there's no chance that you have to decide these two issues again. [00:36:06] Speaker 04: The one is can anybody bring a tort claim and two is there's an individual that has [00:36:13] Speaker 04: data exposure, but no misuse, do they allege actual damages? [00:36:18] Speaker 04: Those issues are not going to come back to this court at any point in time. [00:36:21] Speaker 02: I understand. [00:36:22] Speaker 02: It just feels to me a lot more like a 1292b argument than a 54b argument. [00:36:31] Speaker 02: Let's try this one. [00:36:34] Speaker 02: Suppose there's a two-count complaint for strict liability [00:36:41] Speaker 02: and negligence arising from, in a products liability context. [00:36:48] Speaker 02: And on a motion to dismiss, district court says, district court sitting in diversity says, the law of this state does not recognize strict liability. [00:36:58] Speaker 02: I'm dismissing that claim. [00:36:59] Speaker 02: Let's go to discovery on the negligence claim. [00:37:02] Speaker 02: Can that be certified under 54B on the theory that, well, the existence of strict liability under state law is a discrete, severable issue that's not going to come up again? [00:37:15] Speaker 04: If the district court believes it could be certified, it can be certified given the significant discretion that the Supreme Court has said that the district judge has. [00:37:22] Speaker 04: The key is whether the district judge is making that decision in the interest of sound [00:37:28] Speaker 04: judicial administration. [00:37:29] Speaker 04: That's the language that's in the Curtis Wright case, and I think it may be in the Sears case as well. [00:37:35] Speaker 05: Really, it's the district judges. [00:37:37] Speaker 05: Why does everything stay in the district court? [00:37:40] Speaker 05: Because when I looked at the papers, the district judge in his 54B certification says, pursuant to Federal Civil Procedure 54B and upon consideration of the party's responses to the court's February 14th minute order, and then cites two documents. [00:37:55] Speaker 05: When I looked at those documents, the documents seemed to indicate [00:37:58] Speaker 05: that it makes good sense to stay everything because it's intimately bound up with what's on appeal. [00:38:03] Speaker 04: I disagree with that characterization. [00:38:06] Speaker 04: The appellants specifically asked for a stay of the tringlers part of the case while the rest of the case goes up on appeal. [00:38:14] Speaker 04: Before we had an opportunity to file a response to that request that they made to the court, the court, and I think it was either a day later, maybe the same day, or a day later, I can't remember the dates, the court issued [00:38:29] Speaker 04: the ruling staying the rest of the case without us having an appropriate amount of time to respond to that. [00:38:36] Speaker 04: We would have absolutely . [00:38:38] Speaker 04: . [00:38:38] Speaker 04: . [00:38:38] Speaker 04: ? [00:38:38] Speaker 05: Wasn't that the basis for asking for the stay? [00:38:41] Speaker 05: That things were bound up and so there's no reason to go forward now or am I not remembering that correctly? [00:38:48] Speaker 04: we did not ask for the stay. [00:38:50] Speaker 04: The other side did. [00:38:51] Speaker 04: I think in part it's because of what Mr. Stunstreet said. [00:38:55] Speaker 04: It's a putative class action. [00:38:58] Speaker 04: So the next stage in the case presumably from the appellant's standpoint is to try to certify a class. [00:39:04] Speaker 04: And it presumably does not make sense to try to do that until everyone is absolutely sure of what named plaintiffs are [00:39:13] Speaker 04: named plaintiffs trying to certify a class on behalf of. [00:39:18] Speaker 04: So I think it's a little more nuance than just waiting for these issues to be resolved. [00:39:27] Speaker 04: So I see. [00:39:28] Speaker 04: Okay. [00:39:29] Speaker 04: Do you want to move to merits then? [00:39:30] Speaker 04: Yes, Your Honor. [00:39:33] Speaker 04: I'm also unaware of the case that Mr. Stunstreet just referenced, but [00:39:38] Speaker 04: This is not a case where even the certification of the D.C. [00:39:42] Speaker 04: Court of Appeals is necessary because the standard for a certified question is, is the local law genuinely unclear? [00:39:52] Speaker 04: Under Randolph, it's not genuinely unclear. [00:39:54] Speaker 04: The district court didn't think so. [00:39:56] Speaker 04: Randolph is clear that mitigation damages, cost of credit monitoring [00:40:04] Speaker 04: Do not qualify as damages. [00:40:06] Speaker 03: Let's back up a little bit. [00:40:08] Speaker 03: What wasn't the district court wrong to state that actual damages are an element of breach of contract claim under DC law, given that nominal damages are always available for breach of contract. [00:40:21] Speaker 04: I think the key is that damages are a requirement of breach of contract. [00:40:26] Speaker 04: That's what we have argued. [00:40:29] Speaker 03: We've got a D.C. [00:40:30] Speaker 03: law, Francis v. Raven Wright v. Howard University, who says that you get an award of nominal damages for breach of contract. [00:40:39] Speaker 03: Why? [00:40:39] Speaker 03: Some damages still have to be alleged. [00:40:44] Speaker 03: Why? [00:40:46] Speaker 03: Why? [00:40:46] Speaker 03: They come with the breach of contract. [00:40:48] Speaker 03: If you establish breach of contract under D.C. [00:40:51] Speaker 03: law, you get damages. [00:40:58] Speaker 04: We still think that they have to be alleged. [00:41:02] Speaker 03: Here we go. [00:41:02] Speaker 03: Reading from Francis versus Raymond. [00:41:06] Speaker 03: Under District of Columbia law, plaintiffs are not required to allege the damages caused by a breach of contract to survive a Rule 12b6 motion to dismiss. [00:41:14] Speaker 03: Wright v. Howard. [00:41:15] Speaker 03: The absence of specific monetary injury does not prevent the accrual of the cause of action for breach of contract. [00:41:20] Speaker 03: Even where monetary damages cannot be proved, a plaintiff who can establish a breach of contract is entitled to an award of nominal damages. [00:41:27] Speaker 03: Now you don't. [00:41:30] Speaker 03: That's not even getting to the litigation and overpayment claims. [00:41:39] Speaker 03: OK, I understand. [00:41:41] Speaker 05: That argument hasn't been made, as far as I know. [00:41:43] Speaker 05: No, it's not been made. [00:41:44] Speaker 05: critical. [00:41:45] Speaker 03: It's a fundamental misstatement of D.C. [00:41:48] Speaker 03: law at the district court, wouldn't it be, if I'm understanding this correctly? [00:41:56] Speaker 04: I'm not sure, Your Honor. [00:41:56] Speaker 04: I've not reviewed those cases. [00:41:58] Speaker 04: I can't respond to that. [00:41:58] Speaker 02: If we reverse on that point, on the contract claim, [00:42:05] Speaker 02: Do you still, I mean, I guess there's still a separate issue that was put to us about whether things like mitigation expenses or benefit of the bargain are non-nominal damages adequately pleaded in this case? [00:42:27] Speaker 02: You want us to separately address those questions, even if the breach of contract claim has to go back? [00:42:34] Speaker 02: at least phenomenal? [00:42:35] Speaker 04: I think we have to, yes. [00:42:38] Speaker 02: I don't think we have to, but I mean if we're buying into your argument about loose piecemeal appeals to resolve issues sooner rather than later, presumably we might. [00:42:52] Speaker 04: Well, there are other causes of action that require actual damages more sufficiently than the cases that Judge Griffith just read. [00:43:03] Speaker 04: For example, the tort claims were originally dismissed for lack of damages. [00:43:07] Speaker 02: Yeah, tort claims seem to be different. [00:43:09] Speaker 04: And there are other claims that were dismissed for lack of damages as well that are not just a breach of contract. [00:43:18] Speaker 03: We don't need to go to the damages on the tort claims. [00:43:21] Speaker 03: I thought your argument there, the district court's argument there is they're duplicative, right? [00:43:24] Speaker 04: Well, the district court actually dismissed them for lack of damages first. [00:43:28] Speaker 04: I see. [00:43:28] Speaker 04: Then he alternatively, he said even if they had fled damages, they can't bring these tort claims for reasons X, Y and Z. Right. [00:43:36] Speaker 04: Specifically that the alleged misconduct that [00:43:39] Speaker 04: a balanced raise for the tort claims derived specifically from the same misconduct that comes from the contract claim. [00:43:46] Speaker 02: Can I ask you about the D.C. [00:43:48] Speaker 02: consumer protection claims? [00:43:50] Speaker 02: That seems to me the other one that's strong for your opponents. [00:43:56] Speaker 02: So why does that [00:43:59] Speaker 02: claim require any allegation of damages. [00:44:03] Speaker 02: It doesn't. [00:44:04] Speaker 04: And we didn't argue that it did. [00:44:05] Speaker 02: Okay. [00:44:06] Speaker 04: Your Honor, the reason that claim fails is because it also... So your only argument is because it's bound up in the contract. [00:44:13] Speaker 04: That's right. [00:44:14] Speaker 02: And why is that? [00:44:16] Speaker 04: Because the D.C. [00:44:17] Speaker 04: Court of Appeals [00:44:20] Speaker 04: sorry, it may be a district court case interpreting the D.C. [00:44:25] Speaker 04: Court of Appeals, but the Slensky case specifically addresses allegations made under a breach of contract versus under the D.C. [00:44:34] Speaker 04: Consumer Protection Act. [00:44:35] Speaker 04: And when it's bound up in the exact same alleged misconduct, there's not a cause of action under the D.C. [00:44:40] Speaker 02: Consumer Protection Act. [00:44:48] Speaker 02: square with how consumer protection statutes work, right? [00:44:54] Speaker 02: Classic, I mean, consumer protection statutes expand on common law fraud claims and a classic [00:45:05] Speaker 02: Common law fraud claim is a huckster salesman makes misleading representations to prospective consumers to try to induce them to enter into a commercial contract and buy something that [00:45:20] Speaker 04: In your example, though, the claim would not be a breach of contract claim. [00:45:27] Speaker 04: The claim would arise from allegedly fraudulent activity prior to the enforcement of the contract. [00:45:32] Speaker 02: That seems like the kind of thing that's in the heartland of a normal consumer protection statute. [00:45:39] Speaker 02: The statute is pretty broadly written. [00:45:41] Speaker 02: It picks up [00:45:44] Speaker 02: picks up conduct that would constitute fraud as well as simply making a representation that a good has a characteristic that it doesn't have. [00:45:55] Speaker 04: But the case law, at least in DC, appears clear that as long as it's the same alleged misconduct that the breach of contract also claims that the cause of action under the Consumer Protection Act does apply. [00:46:07] Speaker 05: But I think the question is whether that, that may be true if you buy the premise that in this case [00:46:13] Speaker 05: the tort part of it is bound up with the contract part of it. [00:46:16] Speaker 05: But you could also view it as there's two different things being alleged. [00:46:20] Speaker 05: One is that if the internet policy is bound up with the contract, then it's effectively reach a contract claim. [00:46:28] Speaker 05: But then there's another claim in the alternative that, look, even if it's not, [00:46:32] Speaker 05: even if it's separate from the contract, then we still have tort liability predicated on a breach of the Internet privacy policy. [00:46:39] Speaker 05: And then you don't have the problem that it's bound up with the contract claim. [00:46:42] Speaker 04: That argument was made in appellant's reply brief. [00:46:45] Speaker 04: That argument, though, is not sustainable when you look at this complaint and you see what actually is alleged. [00:46:52] Speaker 04: So the complaint specifically brings the privacy policy within the four corners of the contract. [00:46:59] Speaker 05: It does, but the question is whether it does that exclusively. [00:47:04] Speaker 05: I think it's fair to say that it's part of the contract claim, but the question is then is there also a separate claim that says, look, even if we don't look at the Internet policy as [00:47:16] Speaker 05: bound up in the contract claim, it still creates a predicate for tort liability. [00:47:20] Speaker 04: But if you do the latter, there is no contract claim. [00:47:22] Speaker 05: That is the breach of contract claim. [00:47:24] Speaker 05: Why can't they plead it in the alternative? [00:47:28] Speaker 05: They're just saying, yeah, maybe it's true. [00:47:31] Speaker 04: They can. [00:47:31] Speaker 04: We don't believe that this complaint actually does that. [00:47:34] Speaker 02: But if they did, it would be OK to say there are misleading statements in the internet, privacy policy, [00:47:43] Speaker 02: If they're part of the contract, we claim breach of contract. [00:47:47] Speaker 02: If they're not, we claim fraud and consumer protection. [00:47:52] Speaker 04: I haven't seen a D.C. [00:47:53] Speaker 04: Court of Appeals decision addressing that specific type of complaint based on your hypothetical. [00:47:59] Speaker 04: I think so. [00:48:00] Speaker 05: Which just seems like it's alternative pleadings. [00:48:04] Speaker 04: I think so. [00:48:04] Speaker 04: We just don't have that here. [00:48:05] Speaker 05: And the cases that you're out relying on don't address that situation. [00:48:08] Speaker 05: They address a situation in which there is only a contract claim. [00:48:14] Speaker 05: It's all bound up in the contract. [00:48:15] Speaker 05: You don't have the pleading in the alternative. [00:48:17] Speaker 04: Well, in those cases, they're trying to bring tort claims and also DC Consumer Protection Act claims, but also a contract claim. [00:48:27] Speaker 04: Right. [00:48:28] Speaker 04: That's right. [00:48:34] Speaker 04: Thank you, Your Honor. [00:48:43] Speaker 01: First, what I begin with saying that we do, and obviously we agree that there has been appellate jurisdiction conferred to this court with respect to Mr. Gatewood's arguments on the 54B. [00:48:55] Speaker 01: I do want to address Judge Katz's point on the consumer protection claim and the statutory schematic and how this complaint was pledged, because we're the ones who drafted it. [00:49:09] Speaker 01: This is how it was pledged. [00:49:11] Speaker 01: breach of contract, express or implied, unjust enrichment, and a consumer protection claim. [00:49:18] Speaker 01: So already, Your Honors can see that there was pleading in the alternative. [00:49:22] Speaker 01: So that was exactly right. [00:49:23] Speaker 01: And even more to Judge Katz's point, [00:49:27] Speaker 01: If there are the entire point of consumer protection statutes are to provide additional relief, the interpretation of the district court that a contract could abrogate those claims would mean there's no such thing as lemon law protections. [00:49:40] Speaker 01: There's no such thing as misrepresenting the type of product that consumers are buying where there would be contracts. [00:49:47] Speaker 01: So that is exactly on point in the [00:49:51] Speaker 01: The misrepresentation that this data was encrypted is critical because it made the information stolen more valuable and more accessible to the data thieves who still possess it. [00:50:03] Speaker 01: So those were the points that we wanted to address to the court. [00:50:09] Speaker 02: So what do you make of Coheras? [00:50:11] Speaker 02: I mean, I agree with everything you just said about both consumer protection and fraud. [00:50:19] Speaker 02: And moreover, I mean, I find it implausible even as to negligence, right? [00:50:27] Speaker 02: I mean, the doctor gets sued for malpractice. [00:50:30] Speaker 02: He's only doing the operation because he has a contractual relationship with the patient. [00:50:35] Speaker 02: But all of that said, Co-Harris [00:50:38] Speaker 02: says what it says and says if something is bound up in the contract, then no tort claims. [00:50:45] Speaker 01: I think the real distinction in Coheras is first that it was at the summary judgment stage, and as your honors have keyed in on, this is a pleading dismissal. [00:50:55] Speaker 01: So to make the determination based on Co Harris, which that case itself, it was a broken radiator and a claim made to State Farm and Insurance, was able to proceed to discovery to see if it could support the tort claim. [00:51:08] Speaker 01: So the issue that there could be separate tortures conduct to support a claim, which could be a fact here, [00:51:17] Speaker 01: to support a negligence claim has never been developed. [00:51:21] Speaker 01: So it was premature for the district court to apply coherence and dismiss every single court claim which Mr. Gatewood informed the court and it was important for the 54B issue that all of those tort claims are before the court. [00:51:34] Speaker 02: So suppose the internet policy were a contract term, would coherence bar [00:51:44] Speaker 02: fraud and DCCPA claims for the misleading aspect of that contract term? [00:51:54] Speaker 01: It is our position that it would not because Co-Harris would dismiss tort claims, not the Consumer Protection Act claims and not the other claims that are in the complaint. [00:52:06] Speaker 01: I think it's a difficult position that the case is in because a lot of what has happened in recognizing, like your honor did with contract damages and your honor did with consumer protection, $1,500 damages, which was conceded. [00:52:20] Speaker 01: That's a damage. [00:52:22] Speaker 01: All of these damages are real damages that this circuit has repeatedly recognized and because when we asked for the [00:52:33] Speaker 01: We didn't ask for the 54B ruling, but now because of the difficult appellate jurisdictional issues, really what we're requesting jointly from the defendant is that this court take a look at that record and see if there is a way to make it evident from the record that this court can possess firmly jurisdiction and let this case begin. [00:52:54] Speaker 01: Thank you, Your Honors. [00:52:56] Speaker 03: Thank you very much. [00:52:57] Speaker 03: The case is submitted.