[00:00:00] Speaker 00:
would you pay without it because then you don't even have a product.

[00:00:03] Speaker 00:
So this is at least an unusual situation.

[00:00:06] Speaker 00:
And it is consistent with the—you keep saying it's consistent with their theory of the case, the plaintiffs.

[00:00:12] Speaker 00:
And it actually isn't.

[00:00:13] Speaker 00:
I mean, the complaint says that the damages include—they suffered concrete and particularized harm, which includes lost money, wasting plaintiffs' time, and the stress, aggravation, frustration, loss of trust, loss of serenity.

[00:00:26] Speaker 00:
and loss of confidence in product labeling was part of their injury.

[00:00:30] Speaker 00:
So it's not inconsistent with their theory, and it may be not the usual theory, but it's not the usual case either, because the entire product depends on this being oil-free, and it seems more likely that they're gonna have to make either a disclaimer right on the cover in order to avoid this, but it's not really oil-free, or they're gonna have to abandon the product altogether.

[00:00:55] Speaker 02:
Your Honor, I would point out that the great weight of authority in this circuit and in the California courts is that the value is based on with representation and without.

[00:01:10] Speaker 00:
And on the representation, there were actually three- But is there any case like this one where the name of the product is actually the problem?

[00:01:17] Speaker 00:
Yes, Your Honor.

[00:01:18] Speaker 02:
Caro versus Proctor and Gamble.

[00:01:20] Speaker 02:
That's a California case from 18 California, App 4, 662.

[00:01:26] Speaker 02:
One and day one?

[00:01:28] Speaker 00:
What?

[00:01:28] Speaker 00:
One and day one, is that one?

[00:01:29] Speaker 02:
This is orange juice.

[00:01:31] Speaker 02:
Yes.

[00:01:31] Speaker 02:
And the name of the product had the word fresh in it.

[00:01:36] Speaker 02:
And the allegations, actually, that case is very apt for this one.

[00:01:40] Speaker 02:
The allegation was fresh conveyed, like this case, multiple messages, and the claimed plaintiff

[00:01:46] Speaker 02:
as in this case, testified that it wasn't false as to him.

[00:01:50] Speaker 02:
He claimed, fresh conveyed, premium and no additives.

[00:01:56] Speaker 02:
And in fact, he testified that he understood it wasn't premium.

[00:02:01] Speaker 02:
And in that case, the court refused to apply any presumption of materiality because the questions to different

[00:02:13] Speaker 02:
members of the class would overwhelm the common issues because it wasn't false as to them.

[00:02:20] Speaker 02:
That is here.

[00:02:21] Speaker 02:
Here, the plaintiff herself alleged and alleged that there were three messages, a performance claim of oiliness and two claims about whether these sort of technical disputes over whether the ingredients were oils mattered.

[00:02:38] Speaker 02:
But as to her oiliness and as to the undisputed evidence showed the mess of the class, it was not false.

[00:02:45] Speaker 02:
It was a great product at a great price that performed as she expected.

[00:02:50] Speaker 02:
And so here, there was no question that could be answered in one stroke the way the cases require.

[00:02:57] Speaker 00:
Switching gears now, you're talking about materiality.

[00:02:59] Speaker 02:
I'm talking about both falsity and materiality.

[00:03:03] Speaker 02:
Falsity, depending on what message the individual consumer took away, as Ms.

[00:03:09] Speaker 02:
Nuhi's own testimony showed, depending on what message she took away, it would not only not necessarily be false,

[00:03:17] Speaker 02:
But it might not be false or it might not be material.

[00:03:20] Speaker 02:
It's too complicated.

[00:03:22] Speaker 02:
As for this case is much more like Fairbanks or Stearns or Vioxx where something negated that other message or that the consumers were not taking the message away that the plaintiff alleged was false.

[00:03:38] Speaker 02:
So in some of those cases, there were people saying something here.

[00:03:42] Speaker 02:
Not only was oil free as a performance claim, not greasy, wouldn't cause zits, all those aspects.

[00:03:49] Speaker 02:
Not only was that message one of the main messages that many people took away, including Ms.

[00:03:56] Speaker 02:
Newhey herself, but also that their experience, repeat purchasers would buy it.

[00:04:02] Speaker 02:
And they'd say, this is a great product.

[00:04:03] Speaker 02:
It feels great.

[00:04:04] Speaker 03:
Council, did you want to request some time?

[00:04:07] Speaker 03:
I do.

[00:04:08] Speaker 03:
Yes, Your Honor.

[00:04:08] Speaker 02:
Thank you.

[00:04:21] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:04:23] Speaker 04:
Adrian Bacon on behalf of plaintiff and the certified class.

[00:04:28] Speaker 04:
I'd just like to start by thanking you for missing out on the eclipse today to be here.

[00:04:35] Speaker 04:
This case is a narrow rifle shot.

[00:04:38] Speaker 04:
We've got a single product in a single state with a name of the product that's in the biggest, boldest letter on the face of the packaging intended by the company to be material to people is allegedly false.

[00:04:52] Speaker 04:
It's not an oil-free product.

[00:04:53] Speaker 04:
It contains soybean oil derivatives and palm oil derivatives as alleged and as substantiated by our expert.

[00:05:03] Speaker 04:
And so the question here,

[00:05:05] Speaker 04:
is a two-fold one, which is very simple.

[00:05:09] Speaker 04:
Is that most prominent name of the product claim on the face of the label material?

[00:05:14] Speaker 03:
Well, I want you to go to their main contention, their main beef here, right?

[00:05:18] Speaker 03:
What's their main beef?

[00:05:19] Speaker 03:
Their main beef is this.

[00:05:23] Speaker 03:
That you need Dr. Frentz, an analysis of Dr. Frentz, and although you only really put forth Dr. Roberts' testimony, that there wasn't

[00:05:37] Speaker 03:
in-depth review of that opinion, et cetera, et cetera.

[00:05:42] Speaker 04:
This court has never required that, and Comcast doesn't require that.

[00:05:46] Speaker 04:
Let's start by peeling back the layers of the onion of Comcast.

[00:05:50] Speaker 04:
And this court's done it several times.

[00:05:52] Speaker 04:
In fact, Judge Prezon, you've presided over a couple of those opinions.

[00:05:57] Speaker 04:
Damages are a post-certification issue.

[00:06:00] Speaker 04:
This court has said that many times, including in the Pulaski and Middleman versus Buquist.

[00:06:04] Speaker 00:
I didn't quite hear that.

[00:06:05] Speaker 00:
What is a post-certification issue?

[00:06:07] Speaker 04:
Damages are a post-certification issue.

[00:06:10] Speaker 00:
All we know also says several times that damages doesn't have to be proven on a class basis anyway.

[00:06:15] Speaker 00:
So I kind of wondered about that, but I gather that you're endeavoring to do that.

[00:06:20] Speaker 04:
We are endeavoring to do that, and there's plenty of cases that say that you don't have to do that, including the Tobacco II case out of the California Supreme Court, which is incorporated into Stearns and all the decisions after that.

[00:06:34] Speaker 04:
As to our UCL claim, we do have to show damages on a class-wide basis, but it's inferred when you have such a bold, prominent misrepresentation on the face of a label that is clearly material.

[00:06:47] Speaker 00:
And so the reason that I raise materiality is because the question about- Isn't UCLA the claim that doesn't have damages anyway and only has injunction and restitution?

[00:06:59] Speaker 04:
That's absolutely correct, Your Honor.

[00:07:01] Speaker 00:
UCL does not require- You have to prove damages when you don't even have to prove damages.

[00:07:05] Speaker 04:
We don't even have to show it, but we do have to show some method of

[00:07:08] Speaker 04:
in order to get a result at trial, obviously.

[00:07:12] Speaker 00:
Well, but to get restitution just means you give them their money back.

[00:07:15] Speaker 00:
So that issue doesn't even arise under the UCLA, as I understand it.

[00:07:21] Speaker 04:
That's absolutely correct.

[00:07:22] Speaker 04:
It's a restitutionary claim, and under tobacco too, we don't have to show that.

[00:07:27] Speaker 04:
We just have to show a general deception to the general public, not necessarily any damage that is suffered by any particular consumer.

[00:07:36] Speaker 04:
But going to commonality, I just want to point to a grievous error in defendant's analysis, which is that they say that the court had no evidence of materiality and had to look at our survey to prove that.

[00:07:49] Speaker 04:
That's not true.

[00:07:50] Speaker 04:
On top of the fact that it's on the label, on the biggest, boldest print, that it's the name of the product, you've also got

[00:07:58] Speaker 04:
The biggest complaint from customers about the product being that it's oily and greasy.

[00:08:04] Speaker 03:
Hey, counsel, I want to get you back to my question.

[00:08:06] Speaker 03:
OK, sorry.

[00:08:07] Speaker 03:
My question was their question, which is the experts.

[00:08:10] Speaker 03:
Explain to me why the court shouldn't have conducted a specific Daubert analysis with regards to Dr. Ferenz and that you've only included Dr. Roberts.

[00:08:23] Speaker 04:
There's several reasons for that, but the most obvious is the one that Your Honor pointed out that Anne said at the hearing, which is that they never filed a Daubert motion requesting that our expert be stricken.

[00:08:35] Speaker 04:
The court doesn't have to strike an expert if it's not ever asked to.

[00:08:38] Speaker 00:
But they did file a motion with regard to the admission of evidence, and they mentioned Daubert and Daubert concepts.

[00:08:44] Speaker 04:
They filed objections, that's true, and those objections- What's the difference?

[00:08:48] Speaker 00:
I mean, they didn't specifically ask for a hearing, but they did object on Daubert grounds.

[00:08:52] Speaker 04:
They didn't ask for relief, affirmatively.

[00:08:54] Speaker 04:
They objected to the admission of the evidence.

[00:08:56] Speaker 00:
The court considered those.

[00:08:58] Speaker 00:
So the relief they were asking for was not to admit the evidence.

[00:09:01] Speaker 04:
But the district court considered those in its order.

[00:09:04] Speaker 04:
And the question comes down to an abuse of discretion.

[00:09:07] Speaker 04:
Was it an abuse of discretion for Judge Hatter?

[00:09:09] Speaker 04:
to allow the evidence to go through at this phase of the case?

[00:09:13] Speaker 04:
Was it an abuse of discretion for him to?

[00:09:15] Speaker 03:
Well, they're saying yes, because the expert with the big opinion is the secondary expert.

[00:09:21] Speaker 04:
This misconstrues the nature of what this survey and what Dr. Roberts's testimony are meant to do.

[00:09:28] Speaker 04:
All these pieces of evidence are meant to do is satisfy, at this stage, Comcast.

[00:09:33] Speaker 04:
And what Comcast requires is that we have to put forth a proposed methodology that is tied to the theory of liability in the case.

[00:09:42] Speaker 00:
But what bothers me the most is that the questions are not set out.

[00:09:47] Speaker 00:
And so it's very hard to judge whether the question of the

[00:09:59] Speaker 00:
Population universe seems less troublesome.

[00:10:02] Speaker 00:
It doesn't seem that difficult when you have records.

[00:10:05] Speaker 00:
But whether the survey is going to survey anything useful depends on what you're going to ask.

[00:10:11] Speaker 00:
We have no idea.

[00:10:13] Speaker 04:
Well, we do have some idea.

[00:10:14] Speaker 04:
We have a pretty good idea of what's being asked.

[00:10:16] Speaker 04:
He did lay this out in an 18-page report.

[00:10:19] Speaker 04:
And I can tell you this because, again, I'll speak out of turn because this is in the record.

[00:10:24] Speaker 04:
We've done the survey at this point because the class has been certified.

[00:10:29] Speaker 00:
that's being asked, I can speak to that a little bit, but- Do you have another case in which, a modern case in which, since all these rules were laid out, in which a class was certified with this little information about how the study is actually going to be done?

[00:10:50] Speaker 04:
There's not a circuit-level case with respect to conjoint surveys or the type of consumer survey that we're talking about in this case, but there are plenty of cases that this Court has held we don't need to present a damages model.

[00:11:03] Speaker 00:
But we don't need to run the damages model.

[00:11:06] Speaker 00:
We know that.

[00:11:08] Speaker 00:
We don't need to present it.

[00:11:09] Speaker 00:
I don't know.

[00:11:11] Speaker 00:
What case says you don't need to present the model?

[00:11:14] Speaker 04:
Well, we did present the model, though.

[00:11:16] Speaker 04:
We presented that this was going to be a both qualitative and quantitative study.

[00:11:24] Speaker 04:
The qualitative portion would happen first.

[00:11:26] Speaker 04:
That would consist of focus groups of between.

[00:11:29] Speaker 00:
What about this question that they're raising about, was he going to ask them

[00:11:34] Speaker 00:
going to have this reveal and ask them after the reveal, now what would you pay for it?

[00:11:39] Speaker 00:
Or was he going to ask them simply, what would you pay for this product like this way, and what would you pay for this product this way, without the oil free claim on it?

[00:11:55] Speaker 00:
Those are quite different ways to do it.

[00:11:58] Speaker 00:
He seemed to say he was going to do the first.

[00:12:01] Speaker 00:
He seems to have repeated that quite a lot.

[00:12:04] Speaker 00:
So maybe as to particularity, there isn't a problem there.

[00:12:08] Speaker 00:
And I don't know what you ultimately did, but that does seem to be what he's saying he would do.

[00:12:14] Speaker 00:
Is that a problem?

[00:12:16] Speaker 04:
Well, it's not a problem unless or until the defendant raises that problem in a Daubert motion with respect to the specific questions as they were asked to people, which isn't before this court.

[00:12:27] Speaker 00:
Why not with respect to the questions that were going to be asked to people, which they did raise?

[00:12:31] Speaker 04:
I think there's a lot of hyperbole being stated with respect to... But there is a lot of hyperbole, I agree, but they did at least...

[00:12:40] Speaker 00:
target that particular problem, which they think is a problem.

[00:12:44] Speaker 00:
As I say, I think it's consistent with the complaint, and I don't know why you're tied into the other system necessarily.

[00:12:50] Speaker 00:
But they did target it, and so the question is whether that distinction, whether he committed to doing it that way and we're supposed to judge it on that theory or we're supposed to say we don't know which one it was going to do.

[00:13:06] Speaker 04:
When we deposed Dr. Reibstein, who was the main expert who critiqued that issue with Dr. Roberts' report, he said that those issues could be controlled for in the survey, and we believe we

[00:13:19] Speaker 04:
done that satisfactorily.

[00:13:21] Speaker 04:
So I don't think it's an issue.

[00:13:23] Speaker 04:
I think this is a couple of lines that have been blown out of proportion with respect to this idea of the big reveal.

[00:13:30] Speaker 04:
But keep in mind, part of the harm in this case, as Your Honor has mentioned in our complaint, is the fact that there's a loss of confidence in the market and consumers lose confidence in the product when

[00:13:42] Speaker 04:
they learned that the reason that they bought it was based on a lie.

[00:13:46] Speaker 04:
So I don't think that it's a non-cognizable form of injury to suggest to people, you've been lied to, how much did that affect you?

[00:13:55] Speaker 04:
Now you can ask that question in a way that limits bias, and we think that Dr. Roberts will oversee the survey that's doing that.

[00:14:02] Speaker 04:
We've given instructions for everybody to make sure to limit that bias as much as possible.

[00:14:08] Speaker 04:
But the structure of proposing an idea where you present a product with a false statement on it, ask people about that product, ask a series of open-ended questions to determine how they believe that it's important, and then narrow those questions to a targeted survey sample group and ask more targeted questions, and then do the same thing with respect to... But why, I mean, why shouldn't the requirement be

[00:14:35] Speaker 00:
one step further on than what he did.

[00:14:41] Speaker 00:
We understand in other words that he really at least needed to lay out what was he going to ask and how was he going to choose the population, not actually do it and so on.

[00:14:55] Speaker 00:
But just my somewhat untutored perception is that this case is something on the margin

[00:15:05] Speaker 00:
in terms of cases in general, in terms of how much is actually shown at this point.

[00:15:10] Speaker 00:
And your main concern seems to be the cost of it, but it doesn't seem like it would be all that costly.

[00:15:17] Speaker 00:
if that's even a legitimate consideration to at least give us ... Because the way you've done it now, now he's done a survey and now they're going to have to go back and the judge is going to have to say, well, they're going to complain about the survey and it may turn out that the survey doesn't work because the questions were asked in some way that skewed the survey.

[00:15:43] Speaker 00:
Why should we say you at least have to do that much?

[00:15:46] Speaker 04:
That's no different than how class actions have been going for the past 20 years in California district courts under this court's guidance.

[00:15:54] Speaker 04:
The vast majority of district court opinions have never required more than what we did in this case.

[00:15:59] Speaker 00:
So can you point me to one or more cases like that?

[00:16:04] Speaker 04:
Yes.

[00:16:05] Speaker 04:
We cited many in our brief.

[00:16:07] Speaker 04:
There was a case which Judge Coe oversaw up in the northern district, I think, involving Kellogg.

[00:16:12] Speaker 04:
I believe it's that Hadley case.

[00:16:15] Speaker 04:
And there are others.

[00:16:16] Speaker 04:
which I can pull out of our brief.

[00:16:20] Speaker 04:
And I'll look for that while I'm doing double duty and answering one of the other points you raised, Judge Berzon.

[00:16:27] Speaker 04:
This expert survey, and I know this because we have the bills, cost $389,354.80.

[00:16:33] Speaker 04:
This court is being asked to draw a line somewhere.

[00:16:41] Speaker 00:
That's why I'm trying to be very specific.

[00:16:43] Speaker 00:
I'm not saying you should have had to run the survey.

[00:16:47] Speaker 00:
I mean, that's expensive.

[00:16:48] Speaker 00:
But writing five more pages about it, I would ask this question and that question, and this is how I'd find the population.

[00:16:54] Speaker 04:
That's not how the process was designed.

[00:16:56] Speaker 04:
Let me explain how this proposal from Dr. Roberts actually works in practice and why that's not quite as feasible as Your Honor is suggesting.

[00:17:05] Speaker 04:
There's two approaches here that have to happen sequentially.

[00:17:09] Speaker 04:
First, you run a qualitative analysis.

[00:17:12] Speaker 04:
And what the qualitative analysis, as Dr. Roberts laid out, proposes,

[00:17:16] Speaker 04:
is that there are focus groups, three to four people, in some cases six to eight, depending on

[00:17:23] Speaker 04:
the sample size that is drawn, and you bring these people in and you ask them open-ended questions about the product, how they feel about it, what their impressions are.

[00:17:32] Speaker 04:
Think about what you traditionally envision when you think of a focus group that a company is running.

[00:17:37] Speaker 04:
And you run that with several dozen consumers in different focus groups that are overseen by moderators.

[00:17:43] Speaker 04:
Those questions are also overseen by Dr. Roberts and observed.

[00:17:47] Speaker 04:
And then after this happens, which takes a couple of months to develop, then you go to phase two, which is the quantitative portion, which is what defendant wants us to put together before we certify the class, which is the actual questions that get asked to people.

[00:18:04] Speaker 04:
There are several hundred thousand dollars worth of expert expenses and groundwork and legwork that have to go in before

[00:18:11] Speaker 04:
you get to the quantitative phase of the survey, which is afterwards.

[00:18:16] Speaker 04:
So what they were asking Dr. Roberts to do in his deposition is to just make up questions without having done the homework first of actually going and doing the qualitative survey.

[00:18:28] Speaker 04:
That's not how his proposal works.

[00:18:31] Speaker 04:
You have to do these in tandem with one another.

[00:18:33] Speaker 04:
You can't just say, well, you need to tell us what questions you're going to ask.

[00:18:37] Speaker 04:
That presupposes that you know what the questions are going to be.

[00:18:40] Speaker 04:
The questions are derived from the focus groups, which is part of the same study.

[00:18:44] Speaker 03:
After the class CERT stage, could they still come back and challenge the experts and the analysis?

[00:18:52] Speaker 04:
Absolutely.

[00:18:53] Speaker 04:
Judge Hatter left discovery for experts and for merits issues and for summary judgment and for damages wide open as a result of stipulated orders that the defendant stipulated to.

[00:19:07] Speaker 04:
Four times we allowed for this in the schedule.

[00:19:10] Speaker 04:
So what they're effectively saying is that it's an abuse of discretion for Judge Hatter to have done that, to have allowed them the opportunity to come back after the survey is done and file Daubert motions and then

[00:19:21] Speaker 04:
If they're successful asking for the class to be decertified, this typicality issue that they're raising with our client, the best way to handle that would be if the district court ultimately decides that Judge Roberts proposed methodology as it was implemented,

[00:19:41] Speaker 04:
is not sufficient under the Daubert standards, and they strike his expert report.

[00:19:45] Speaker 04:
The defendant could decertify the class and say, Ms.

[00:19:49] Speaker 04:
Newhey, your claims are too individualized.

[00:19:52] Speaker 04:
You don't have any sufficient method under Comcast of determining damages.

[00:19:56] Speaker 04:
And then the case would effectively be relegated to an individual case worth $4 or $5 plus whatever attorney's fees we would get.

[00:20:03] Speaker 03:
Any additional questions?

[00:20:06] Speaker 00:
None.

[00:20:07] Speaker 00:
Yeah, I do have a question.

[00:20:10] Speaker 00:
There are a couple of related cases currently in the court, one of which has been argued, I think, which you've acknowledged.

[00:20:18] Speaker 00:
And the one that's been argued has, under our court rules, priority with regard to the issue that's decided.

[00:20:25] Speaker 00:
Should we be awaiting the issue in that case?

[00:20:28] Speaker 04:
Well, I wouldn't presume to know whether different panels talk to each other, but I do think these issues- Well, they talk to each other to the degree of finding out whether they're going to decide the issues.

[00:20:37] Speaker 04:
I think that these are incredibly interrelated.

[00:20:40] Speaker 04:
I watched the oral argument on that case.

[00:20:46] Speaker 04:
I've read their briefing.

[00:20:47] Speaker 04:
I think the legal and factual issues are very similar.

[00:20:51] Speaker 04:
The only difference is that we have this scheduling order issue, which makes our case even an even easier case for you to uphold this class certification ruling, because in their case they didn't do the survey either.

[00:21:02] Speaker 00:
But it's the same question with regard to the stage at which the

[00:21:10] Speaker 00:
methodology was exposed in that case, and is it at basically the same stage?

[00:21:17] Speaker 04:
There's a subtle procedural difference, which I think is very important, which could potentially be a scenario in which there's a reversal in that decision and it's upheld here, which would be the fact that the scheduling order in their case had concluded discovery, whereas in this case it has not.

[00:21:37] Speaker 04:
And so if this court were to find that important procedurally.

[00:21:41] Speaker 00:
But you do think they're closely related.

[00:21:43] Speaker 04:
Otherwise, they're almost the same case.

[00:21:45] Speaker 04:
I see.

[00:21:46] Speaker 04:
In fact, I think the questions which you asked, Judge Berzon, with respect to our survey questionnaire were presented almost identically in the other matter.

[00:21:57] Speaker 00:
Well, that's helpful to know.

[00:21:58] Speaker 04:
So I don't think that we're in a different posture with respect to the rule 23 factors right here, or Comcast, or these materiality issues.

[00:22:08] Speaker 04:
And they did raise both in the other case.

[00:22:10] Speaker 03:
Thank you, counsel.

[00:22:11] Speaker 04:
Thank you.

[00:22:20] Speaker 03:
Counsel, I'll give you two minutes.

[00:22:23] Speaker 02:
All right, Your Honor.

[00:22:24] Speaker 01:
Lightning round.

[00:22:24] Speaker 01:
Could I follow up on exactly what the last question was that Judge Berzon asked?

[00:22:28] Speaker 01:
What's your view of the issues that are before the other panel?

[00:22:32] Speaker 02:
There are some differences and some similarities.

[00:22:36] Speaker 02:
There is no damages mismatch error in that case, the way there is here, where on the face of it, they're measuring the wrong thing under Reitman versus Champion Foods, for example, and Pulaski and Kwikset.

[00:22:49] Speaker 02:
The expert in that case said, I'm going to do a conjoint.

[00:22:54] Speaker 02:
That's it.

[00:22:54] Speaker 02:
That's all he said.

[00:22:56] Speaker 02:
And it was after completely the close of discovery, not just there was more discovery going to be happening.

[00:23:06] Speaker 02:
I mean, it was completely shut down.

[00:23:08] Speaker 02:
So those may lead to some different scenarios.

[00:23:11] Speaker 02:
And also, the defendant argued differently.

[00:23:13] Speaker 02:
There was a lot of confusion as to whether there was a bright line rule being advocated for, which we have very clearly not advocated for here.

[00:23:21] Speaker 02:
As to what?

[00:23:22] Speaker 02:
A bright line rule as to whether they had to run the model.

[00:23:25] Speaker 02:
OK, a few points.

[00:23:28] Speaker 02:
First on Judge Mendoza, your original question, why no Daubert hearing?

[00:23:32] Speaker 02:
We did have a hearing.

[00:23:34] Speaker 02:
It wasn't framed as a Daubert hearing, but it was a hearing set for the, we didn't hold the hearing.

[00:23:39] Speaker 02:
There was a hearing scheduled, noticed.

[00:23:42] Speaker 00:
You're using hearing in an interesting way.

[00:23:45] Speaker 00:
There was no evidentiary hearing to the qualifications of the expert asked for or held.

[00:23:54] Speaker 02:
That's correct.

[00:23:55] Speaker 02:
There was one that was noticed for August 15th, and the judge took it under submission.

[00:24:01] Speaker 00:
But that was an oral argument.

[00:24:02] Speaker 00:
It was just an oral argument.

[00:24:05] Speaker 02:
Your Honor, there is no obligation for a district court.

[00:24:10] Speaker 02:
There's no rule that a district court has to hold a Daubert evidentiary hearing.

[00:24:14] Speaker 00:
But as to whether you ever asked for what we would call a Daubert hearing, the answer is no.

[00:24:19] Speaker 02:
The answer is no.

[00:24:20] Speaker 02:
There was no request for a Daubert hearing, but we did ask to be heard before the court in a noticed motion on our evidentiary motion, on our evidentiary objections.

[00:24:31] Speaker 01:
But you agreed that there's a difference between

[00:24:35] Speaker 01:
briefing an issue and asking for oral argument and asking for testimony to be taken to test the qualifications of the expert.

[00:24:45] Speaker 02:
Here, there was so little evidence actually before the court.

[00:24:52] Speaker 01:
There was a lot of filler that there was not substantially a difference.

[00:24:57] Speaker 01:
You did the former, not the latter.

[00:24:58] Speaker 01:
We did the former.

[00:24:59] Speaker 01:
You wanted to argue based on your papers.

[00:25:02] Speaker 01:
You did not ever ask the judge to bring evidence, live testimony,

[00:25:09] Speaker 01:
before the court to make the Daubert determination.

[00:25:14] Speaker 02:
That's correct, Your Honor.

[00:25:15] Speaker 03:
Counsel, you're out of time.

[00:25:16] Speaker 03:
Thank you so much for your arguments today.

[00:25:18] Speaker 03:
I appreciate both counsel's arguments today.

[00:25:21] Speaker 03:
Thank you.