[00:00:01] Speaker 04:
Sorry, Madam Clerk, I think I stole your thunder.

[00:00:06] Speaker 04:
All right, we're back on record.

[00:00:10] Speaker 04:
In case number 25-536, Solano versus Kroger Company.

[00:00:14] Speaker 04:
We're ready to hear argument, counsel.

[00:00:23] Speaker 00:
May it please the court, James Siegel, on behalf of Fred Meyer, like to reserve three minutes of my time for rebuttal?

[00:00:28] Speaker 04:
Sure.

[00:00:29] Speaker 00:
In 2018, Oregon amended its bottle bill.

[00:00:32] Speaker 00:
Based on agency guidance, Fred Meyer collected $0.10 deposits on a number of new containers, then passed along what it collected to the relevant state authorities.

[00:00:42] Speaker 00:
Fred Meyer also made sure to refund the deposits of any customer who sought to return any container.

[00:00:48] Speaker 04:
Well, I think we have that point is contested, right?

[00:00:52] Speaker 00:
It is contested on appeal.

[00:00:53] Speaker 00:
I believe that evidence was unrebutted below that.

[00:00:56] Speaker 04:
What about exhibit six?

[00:00:58] Speaker 00:
Excuse me, Your Honor.

[00:01:00] Speaker 04:
Oh, sure.

[00:01:01] Speaker 04:
I wasn't trying.

[00:01:01] Speaker 04:
Again, not a trick question.

[00:01:02] Speaker 00:
No, no, no.

[00:01:03] Speaker 00:
I just don't know the exhibit numbers from the district court.

[00:01:05] Speaker 04:
Do this to me, and so that I have this stuff.

[00:01:07] Speaker 04:
It's exhibit number six, and I think it's a point well taken.

[00:01:09] Speaker 04:
It's an email, one of the emails from Becky Vogel.

[00:01:14] Speaker 04:
And the last line in it suggests that customers, oh, yeah, here we go.

[00:01:20] Speaker 04:
It's March 2018, and it suggests that customers who had tried to get refunds

[00:01:28] Speaker 04:
The last line is, this suggests that Fred Meyer is not only charging the 10 cents, but the grocer, yeah, the grocer is not only charging the 10 cent deposit on non-eligible items, but also refusing to refund the customer for the deposit charged.

[00:01:42] Speaker 04:
That's in our record.

[00:01:43] Speaker 00:
I see that, Your Honor.

[00:01:45] Speaker 00:
Yes.

[00:01:45] Speaker 00:
So there were sort of a handful of anecdotal examples.

[00:01:48] Speaker 00:
I think there were roughly 20 in total.

[00:01:49] Speaker 04:
There's also an allegation in the complaint.

[00:01:51] Speaker 04:
So how do we get to... I think you opened with this was uncontested.

[00:01:55] Speaker 00:
Well, it's uncontested that refunds were provided.

[00:01:58] Speaker 00:
So there was over 1,000 refunds provided.

[00:02:00] Speaker 04:
Well, some, but okay.

[00:02:01] Speaker 00:
Well, yes.

[00:02:02] Speaker 00:
And the question is whether the class members who received those refunds have Article III standing.

[00:02:06] Speaker 04:
What about the ones who didn't?

[00:02:08] Speaker 04:
They need a class member.

[00:02:09] Speaker 04:
The class representative has to have received

[00:02:11] Speaker 04:
be able to allege Article 3 injury and does here, it seems to me.

[00:02:16] Speaker 00:
Well, Your Honor, we can test that, but I think your point, I think the easier answer to your point is with respect to those unnamed class members who sought and received refunds.

[00:02:25] Speaker 00:
So those class members are the ones who lack standing.

[00:02:27] Speaker 04:
Doesn't this all bake in, if that's your argument, doesn't it all bake into a predominance inquiry?

[00:02:32] Speaker 00:
Well, there are two separate issues here.

[00:02:34] Speaker 00:
So one is the predominance issue, and yes, it does bake into the predominance issue, we think, under this Court's decision in advance.

[00:02:39] Speaker 04:
So what's your best standing argument then?

[00:02:41] Speaker 00:
Our best standing argument is that the injury the plaintiffs alleged in their complaint was that the containers they purchased were diminished in value by $0.10.

[00:02:49] Speaker 00:
And so what the district court said was that because they had suffered that $0.10 injury at the time of sale, that was enough to establish injury class Y. That's wrong.

[00:02:58] Speaker 04:
I think that there's a sound bite in the district court's order that sort of flirts with that idea.

[00:03:03] Speaker 04:
But I don't think that's what the district court relied on.

[00:03:05] Speaker 00:
Your honor, that's that's how I read the discourse decision and regardless the district court didn't address the actual pertinent article three question Which is whether the class members had standing at the time of suit because that's actually the relevant question under Can I can I let's break this down into parts?

[00:03:21] Speaker 01:
There are named plaintiffs who say they never got a refund, correct?

[00:03:26] Speaker 00:
That's right, and they never tried to seek a refund.

[00:03:28] Speaker 01:
Okay, but just You can add the additional facts later.

[00:03:33] Speaker 01:
Just try to respond to what I asked

[00:03:35] Speaker 01:
And why don't they have Article 3 standing?

[00:03:40] Speaker 01:
Now you can tell me why you think they don't.

[00:03:42] Speaker 00:
Because they had an available remedy to them, which is they could have sought and received a refund.

[00:03:47] Speaker 01:
Did they know of that available remedy?

[00:03:50] Speaker 00:
Your Honor, it was widely advertised.

[00:03:51] Speaker 00:
That's evidence in the record.

[00:03:52] Speaker 00:
They claim that they weren't aware that they could return them.

[00:03:54] Speaker 04:
I think the record shows the I Can Make It Right program had been widely advertised years earlier and then had gone, had morphed into an internal policy.

[00:04:03] Speaker 04:
And I think the record is quite contrary.

[00:04:06] Speaker 04:
Certainly the district court made a finding that it was not widely advertised here.

[00:04:10] Speaker 00:
I read the district court's decision to focus instead on whether it was widely advertised specifically with respect to this bottle bill issue.

[00:04:17] Speaker 00:
So essentially what the district court said was the fact that you had a make it right program providing that you could give refunds to anyone for any product, no questions asked, that's not enough.

[00:04:27] Speaker 00:
What you needed to do was go out and say, we will give you a refund for any improperly charged bottle bill deposits.

[00:04:32] Speaker 04:
The case law that you're relying upon in response to Judge Herbert's question, the case law you're relying upon are the

[00:04:37] Speaker 04:
It seems to be readily distinguishable.

[00:04:39] Speaker 04:
In those fact patterns, there were broad recall campaigns, broadly advertised.

[00:04:44] Speaker 04:
Is your best shot the I Can Make It Right program?

[00:04:47] Speaker 00:
Yes, Your Honor, in terms of the wide advertising.

[00:04:49] Speaker 00:
And I think the Bandler case from the Second Circuit is probably the most factually on point, where it was just the general availability of court procedures that allowed you to recover your costs that the court said deprived the plaintiff there of Article III standing.

[00:05:02] Speaker 00:
Regardless, I'll acknowledge that the standing inquiry with respect to the named plaintiffs

[00:05:07] Speaker 00:
is more challenging.

[00:05:08] Speaker 00:
Yes.

[00:05:08] Speaker 00:
It's with respect to the unnamed plaintiffs who did in fact receive refunds that I think there is a much stronger Article III argument and one that plaintiffs have not overcome.

[00:05:18] Speaker 01:
Let's move back.

[00:05:19] Speaker 01:
Let me ask again about that.

[00:05:21] Speaker 01:
I'm sorry.

[00:05:21] Speaker 01:
I think everybody agrees that somebody who got a refund can't get another one.

[00:05:28] Speaker 01:
And I don't think the other side is pushing back on the notion that those people who got refunds don't have Article III standing.

[00:05:36] Speaker 01:
What I'm trying to figure out is what the consequence of that is.

[00:05:40] Speaker 01:
If the main plaintiffs have Article 3 standing, put aside your refund program, and the suit can proceed at that level, your second argument seems to be, well, there may be some class members who got refunds, and that defeats predominance.

[00:06:00] Speaker 01:
Is that your second argument?

[00:06:02] Speaker 00:
Yes, it both defeats predominance and is an independent issue under Article 3.

[00:06:08] Speaker 01:
Thank you, because it's that second one I wanted to get to.

[00:06:13] Speaker 01:
What case do you rely on for the proposition that Article 3 standing of the class, Article 3 standing in the lawsuit, is defeated if some class member doesn't have Article 3 standing?

[00:06:28] Speaker 00:
Your Honor, I think the Healy case was just court recently.

[00:06:31] Speaker 03:
So let me ask you about that because Healy talks about whether or not there's Article III standing at a later stage and at summary judgment, but you're arguing that there needs to be Article III standing at class certification.

[00:06:48] Speaker 03:
Yes, Your Honor, and I think the... So what case do you rely on for that?

[00:06:51] Speaker 00:
Well, there's no case in this circuit.

[00:06:53] Speaker 00:
This circuit has expressly held that question open.

[00:06:55] Speaker 00:
I think the Second Circuit and the Eighth Circuit and the Halverson case have both held that every class member does need to have standing at class certification.

[00:07:03] Speaker 00:
But I acknowledge that this circuit hasn't directly addressed that.

[00:07:06] Speaker 00:
But the Healy case sort of gets you 95% of the way there.

[00:07:10] Speaker 00:
And so what the Healy case held was that in TransUnion,

[00:07:14] Speaker 00:
the Supreme Court made clear that every class member has to establish standing at trial.

[00:07:19] Speaker 00:
And so that already forecloses the other side's argument, which is that, oh, this can be- It says after class certification.

[00:07:25] Speaker 03:
Healy says trans union compels unnamed class members to demonstrate evidence of standing here after class certification but prior to trial at summary judgment.

[00:07:33] Speaker 04:
Absolutely, and I'm not I don't mean to say that Healy itself held that it needs to be established a classification My point is simply that the logic of Healy Healy says we have consistently held that article three's requirements are satisfied before classes certified as long as at least one named plaintiff has standing

[00:07:51] Speaker 00:
Absolutely, Your Honor.

[00:07:52] Speaker 00:
And again, we don't contest that either.

[00:07:53] Speaker 00:
So I think it just takes things in stages.

[00:07:56] Speaker 00:
At the motion to dismiss stage, it could be under either a failure to plead standing or a failure to prove standing, if the defendant puts that at issue.

[00:08:05] Speaker 00:
It's clear that only the named plaintiff needs to have standing.

[00:08:08] Speaker 00:
That's because the unnamed class members aren't yet a part of the case in any sense.

[00:08:11] Speaker 00:
So it's also clear after class certification, after Healy, that once a class is certified,

[00:08:16] Speaker 00:
that all of those unnamed class members have to establish their standing.

[00:08:21] Speaker 00:
So the question is what happens at class certification?

[00:08:27] Speaker 00:
And our position, I think this is consistent with the logic field, is class certification is the point at which all those unnamed class members become parties to litigation.

[00:08:36] Speaker 04:
We have never held that.

[00:08:37] Speaker 00:
Your Honor, the Supreme Court has held in Devlin and other cases that there are significant consequences to the class being certified.

[00:08:46] Speaker 00:
I think that's also Healy.

[00:08:47] Speaker 04:
Well, of course.

[00:08:47] Speaker 04:
Absolutely, we take it seriously.

[00:08:49] Speaker 04:
And it seems like, you know, when I looked at your briefing, especially after Healy, which I think is not a case that cuts in your favor, but I appreciate that you're

[00:08:57] Speaker 04:
And I mean that not as a, I don't mean to be flip, that you read it differently.

[00:09:02] Speaker 04:
But it seems to me that it's really a tough case for you.

[00:09:06] Speaker 04:
You know, I thought that TransUnion leaves this open.

[00:09:10] Speaker 04:
It looked like they were going to take it up in Davis, but of course that was dismissed as improvidently granted.

[00:09:16] Speaker 04:
So at this point, the circuit in the law, in this circuit, it seems to me to be very tough for you.

[00:09:21] Speaker 04:
What's your, we're belaboring this point, but what's your very best shot at this?

[00:09:24] Speaker 00:
Well, Your Honor, I think the law in this circuit expressly leaves it open.

[00:09:26] Speaker 00:
So both in Oleen and in Vann, the court made clear that it wasn't resolving that question.

[00:09:31] Speaker 00:
It only addressed the predominance question.

[00:09:33] Speaker 04:
It does talk about predominance.

[00:09:34] Speaker 04:
That's why I started about five minutes ago, because for you, in this case, doesn't this bake into predominance?

[00:09:40] Speaker 00:
No, I do think it's an independent basis for reversal.

[00:09:43] Speaker 00:
Again, this court doesn't necessarily need to address any of these issues, because the district court here held that each class member had standing at the point of sale.

[00:09:49] Speaker 00:
And so it didn't really address any of these issues at all.

[00:09:51] Speaker 04:
I don't read the district court order to be that cut and dry.

[00:09:54] Speaker 04:
that the district court said, because there was injury at the time of sale, that it's all done.

[00:09:58] Speaker 04:
I agree with Judge Hurwitz, and I don't hear the plaintiffs arguing this.

[00:10:03] Speaker 04:
Even if there was injury at the time of sale, if those folks had been refunded and could not show Article III injury, this would be a very different case.

[00:10:11] Speaker 04:
I don't hear them pushing back on that.

[00:10:14] Speaker 00:
Well, Your Honor, I believe that, I mean, at least 1,000 refunds were provided.

[00:10:18] Speaker 00:
That does undercut the standing.

[00:10:19] Speaker 04:
That's why we get to 23B3, right?

[00:10:23] Speaker 00:
Very well, Your Honor.

[00:10:24] Speaker 00:
But I believe the district court didn't address that predominance inquiry.

[00:10:27] Speaker 00:
And that's the basis for the need for a remand, because the district court didn't say, OK, is there a viable way to determine which class members were injured and which class members were not?

[00:10:37] Speaker 00:
It said that inquiry is unnecessary because everyone was injured at the time of sale.

[00:10:41] Speaker 00:
But if it's accepted and I believe... Well, it's an on-off switch.

[00:10:43] Speaker 04:
This is a little bit unique because it's an on-off switch.

[00:10:46] Speaker 04:
It's essentially an identified price premium of 10 cents.

[00:10:50] Speaker 04:
They either incurred it or didn't incur it, right?

[00:10:53] Speaker 04:
They either sort of did or didn't, as opposed to any kind of a graduated analysis.

[00:10:59] Speaker 04:
And if it's just a question of whether or not they purchased the product, whether they got the refund, that on-off switch kind of analysis is one that we see in consumer cases

[00:11:07] Speaker 04:
all the time.

[00:11:08] Speaker 00:
Well, Your Honor, in the Van Two case, it was a similar sort of inquiry that was necessary because, again, there were a number of refunds provided.

[00:11:16] Speaker 00:
And the question was whether those refunds were sufficient to also cover the lost time value of money.

[00:11:20] Speaker 00:
And this court held that the mere fact that there was examples of 18 refunds

[00:11:25] Speaker 00:
which would have covered that Article III injury that were given before the suit was filed, that was enough to require remand and could preclude predominance.

[00:11:32] Speaker 04:
So I was on Vann.

[00:11:33] Speaker 04:
I'm sure you're aware of that.

[00:11:34] Speaker 00:
I'm aware, yes.

[00:11:34] Speaker 04:
And you're really shorthanding it there.

[00:11:37] Speaker 04:
There was a lot more going on in Vann, right?

[00:11:39] Speaker 04:
There was a lot more going on.

[00:11:40] Speaker 04:
And so I think this is a tougher, much tougher case for you.

[00:11:44] Speaker 04:
We want it and I just reiterate that's the plaintiff's burden to show both predominance and standing right and it's abusive discretion standard here and I don't know how this is in any way comparable to Van before we go on and I just cut off to decide I'm mindful of that but can you give me your best run at Van again.

[00:12:00] Speaker 00:
Yes your honor so the issue in Van was the I know the issue.

[00:12:04] Speaker 04:
I was on the case, and you know that I was on the case.

[00:12:06] Speaker 04:
So what's your best read of it for your client?

[00:12:08] Speaker 00:
My best read of it is that when a defendant puts on evidence that there's a specter of individualized determinations that might preclude predominance, the plaintiff has to respond to that with evidence.

[00:12:18] Speaker 00:
Any time?

[00:12:19] Speaker 00:
Yes, once the defendant makes a showing.

[00:12:21] Speaker 00:
We made that showing here, both by showing that we had provided refunds, over 1,000 refunds, which would eliminate the Article III injury that the plaintiffs had alleged.

[00:12:29] Speaker 00:
And by showing that many of those refunds were for the full purchase price of the product, which addresses the sort of the lost time value.

[00:12:34] Speaker 04:
You started by saying, in this case, I think by saying you couldn't, that Fred Meyer didn't have that data at all, and then came back with, I think, $1,275, and that's never explained.

[00:12:42] Speaker 04:
But I still think you're seriously misreading Vann, and I'm taking up too much of your time.

[00:12:47] Speaker 04:
So let's get to Judge Desai's question.

[00:12:49] Speaker 03:
I just have a question, and it's related to this discussion that we're having.

[00:12:55] Speaker 03:
Let's just assume that I agree with you that the district court

[00:12:58] Speaker 03:
was wrong in concluding that there were no uninjured class members.

[00:13:03] Speaker 03:
I'm not really following your argument as to why that somehow requires a remand in this case.

[00:13:11] Speaker 03:
And I hear what you're saying, which is we don't have a case in the circuit that makes clear that there can be uninjured members in the class at the time of class certification.

[00:13:21] Speaker 03:
But we know that at this stage, if the

[00:13:27] Speaker 03:
named plaintiffs have standing, that's enough.

[00:13:30] Speaker 03:
So are you just asking us to make that clear?

[00:13:33] Speaker 03:
And if we need to make that point clear, do you think we should do that in a published opinion so that there is law of the circuit that indicates that there can be uninjured members of the class?

[00:13:45] Speaker 00:
Your Honor, so just to take the first part of your question first, if the

[00:13:49] Speaker 00:
District Court got it wrong in hoping that there were no uninjured class members.

[00:13:53] Speaker 00:
That requires a remand because, again, that changes the entire predominance inquiry.

[00:13:57] Speaker 00:
So District Court never engaged in the predominance inquiry that would be required if there are, in fact, uninjured class members.

[00:14:02] Speaker 04:
Well, let's assume that it's likely there are some uninjured class members.

[00:14:06] Speaker 04:
That's rule 23B, right?

[00:14:09] Speaker 04:
There has to be a predominance decision.

[00:14:11] Speaker 00:
Yes, Your Honor, and that decision wasn't reached here, and the plaintiff didn't put in any evidence that would establish that there was a viable way to determine at trial which plaintiff's members of the class were in fact injured and which were not.

[00:14:22] Speaker 04:
Do you want to reserve time?

[00:14:23] Speaker 00:
Yes, thank you, Your Honor.

[00:14:24] Speaker 04:
You bet.

[00:14:36] Speaker 02:
May it please the court kelly jones appearing for plaintiffs appellees and now certified class members So your honor Your honor is already discussed here what the what we're here for we're talking about article 3 injury Injury in fact which is concrete and we know from TransUnion as we were discussed what we have here is monetary injury.

[00:15:00] Speaker 02:
It's a traditional classic

[00:15:02] Speaker 02:
tangible injury has been reaffirmed by the Supreme Court.

[00:15:05] Speaker 04:
That's not his argument.

[00:15:06] Speaker 04:
He's not denying that.

[00:15:08] Speaker 02:
Correct, Your Honor.

[00:15:09] Speaker 02:
And so skipping to that, the plaintiffs here, they have that concrete injury, and in fact, all class members, even the ones that we'll get to in a minute, and I think this addresses Judge Hurwitz's question earlier, even the class members that may have received refunds also have.

[00:15:27] Speaker 02:
concrete monetary injury that has not been fully reimbursed.

[00:15:31] Speaker 01:
Well, let's stop there because let's assume I don't buy your argument that loss of the time value of 10 cents establishes a concrete injury.

[00:15:44] Speaker 01:
If I don't buy that argument, you do have class members who didn't suffer a concrete injury, correct?

[00:15:54] Speaker 02:
If I understand the question correctly, if you don't buy the lost time value of money, then yes.

[00:16:01] Speaker 02:
Okay.

[00:16:02] Speaker 02:
Yes.

[00:16:03] Speaker 01:
Now, put aside the Article 3 issues, because I think it's pretty clear under our case law, the fact that you have people named plaintiffs who did suffer an injury and the fact that there may be class members who didn't suffer it doesn't necessarily prevent certification.

[00:16:21] Speaker 01:
I want to get to the last issue your friend was addressing.

[00:16:24] Speaker 01:
When we get to actual liability, and again, assume I don't buy the time value of money argument, how do we determine who was injured and who wasn't?

[00:16:39] Speaker 02:
Your Honor, so in many of these class actions, I think we cite the Brazil OV Con Agro decision.

[00:16:45] Speaker 02:
And so in that case, particularly, the court was dealing with that there's no ascertainability requirement in Rule 23.

[00:16:53] Speaker 02:
And consumer class action, especially when there's a lot of cases where there's cash transactions, et cetera, then there has to be a claims process.

[00:17:02] Speaker 02:
This is one of those cases where there's going to have to be a post.

[00:17:04] Speaker 03:
So your argument is that it doesn't prevent class certification.

[00:17:07] Speaker 03:
So you would agree with Judge Hurwitz that

[00:17:11] Speaker 03:
If he doesn't buy or if this panel does not buy the argument that the time value of money is an injury and so that there are some uninjured members of the class, the question I think that I would like to hear an answer to is, does that prevent class certification?

[00:17:29] Speaker 01:
No.

[00:17:30] Speaker 01:
Does it bear on predominance though?

[00:17:34] Speaker 01:
And that's what I guess my, that's what the other side is arguing.

[00:17:37] Speaker 01:
It may not categorically prevent class certification,

[00:17:41] Speaker 01:
But if there have to be individual determinations for thousands of members of a class, does that mean that the predominance requirement is not met?

[00:17:54] Speaker 02:
Your Honor, if that were the case, where we had to have thousands of determinations and individualized questions to determine whether somebody was injured, then I'd say that could defeat predominance.

[00:18:05] Speaker 02:
That's not the case here, as the district court correctly found.

[00:18:08] Speaker 02:
And I think, again, going back to long-standing precedent, which we see in the Healy case is quite fantastic.

[00:18:17] Speaker 02:
It's the opposite of, frankly, of what Fred Meyer says it does.

[00:18:21] Speaker 02:
And I think, Judge Christen, you read quotes from there.

[00:18:24] Speaker 02:
I have the other quotes.

[00:18:25] Speaker 02:
There's more than that in there to show exactly that.

[00:18:28] Speaker 02:
That says TransUnion and Healy TransUnion didn't upset that, that only the class plaintiffs

[00:18:37] Speaker 04:
one class plaintiff has to prove they have standing in order for certification and that's just in this circuit now and as I said you know I don't know I thought we were going to get an answer out of Davis about injury here we don't have that now so I'll grant you that I think that's the controlling law now

[00:18:54] Speaker 04:
But could you go back to predominance, which is what Judge Herbert was asking about?

[00:18:58] Speaker 02:
Yes.

[00:18:58] Speaker 02:
And so, and I was trying to get there maybe a little slowly.

[00:19:01] Speaker 02:
And so there's two ways that Fred Meyer attacks at one, and we've already dealt with this.

[00:19:04] Speaker 02:
Just, oh, Article 3 says that plaintiffs have to prove absent class member standing at certification.

[00:19:11] Speaker 02:
No.

[00:19:11] Speaker 02:
That's not the rule, and that would be impractical.

[00:19:13] Speaker 02:
And we can talk about why that would be impractical.

[00:19:15] Speaker 01:
It may be impractical.

[00:19:16] Speaker 01:
I fear the Supreme Court's headed there, but it hasn't gotten there yet, and neither is this circuit.

[00:19:20] Speaker 01:
So let's assume that's the law as you describe it.

[00:19:24] Speaker 01:
So let's address predominance.

[00:19:26] Speaker 02:
So, yes.

[00:19:26] Speaker 02:
And the second way they attack it is predominance.

[00:19:29] Speaker 02:
And contrary to Fred Meyer's explanations up here, if we look at the district court opinion, directly address predominance, because that's what it was supposed to do.

[00:19:38] Speaker 02:
And that was plaintiff's burden.

[00:19:39] Speaker 02:
So they raised the issue of these refunds, which by the way was, and we'll hopefully talk about it later, was raised not until their opposition to class certification.

[00:19:49] Speaker 02:
Plaintiff had no idea.

[00:19:50] Speaker 02:
Fred Meyer argues that, well, you didn't allege the loss of time value as a subset of the injuries for these supposedly refunded class members, but we didn't know about any

[00:20:01] Speaker 02:
I didn't understand that in the record.

[00:20:05] Speaker 04:
It seems to me, I thought they had denied and said, you know, we can't quantify these refunds, we don't have a way, and then the 1275 came out.

[00:20:14] Speaker 04:
Was there an explanation that I missed in this record about where that came from?

[00:20:18] Speaker 02:
There there is I think you kind of nailed it on the head originally okay, so originally in a Where this all comes from is from our?

[00:20:29] Speaker 04:
Response to an interrogatory question that was a sort of late in the class certification into the weeds I'm just I get that there was a discrepancy I'm trying to figure out do we know was there is there an answer to why why I?

[00:20:40] Speaker 02:
No, we still have no answers.

[00:20:42] Speaker 02:
And I think this partly goes to the fact of why proving absent class member standing is nearly impossible or impractical to do at the class certification, especially because of the standard of class certification.

[00:20:56] Speaker 02:
Getting back to predominance.

[00:20:57] Speaker 02:
Sorry, Your Honor.

[00:20:58] Speaker 04:
Just before you leave this, because I think it might be important when we get to predominance.

[00:21:02] Speaker 04:
I think it's 1,275 refunds.

[00:21:04] Speaker 04:
I think that's through the I Can Make It Right program, right?

[00:21:10] Speaker 04:
And that wasn't a trick.

[00:21:11] Speaker 02:
There's two.

[00:21:12] Speaker 02:
There's some generic.

[00:21:14] Speaker 02:
I think there's some other generic Fred Meyer program, both of which by 2018 were not communicated outward-facing.

[00:21:21] Speaker 04:
Here's my question, counsel.

[00:21:23] Speaker 04:
I think what we have on the record is 1,275 refunds for this kind of orange juice.

[00:21:30] Speaker 04:
Of some amounts some of those were full and some partial is my understanding and we don't know why those refunds were given when they were given is that right.

[00:21:39] Speaker 02:
I think that that's correct and going back to I think your your beginning point and why this is contested is originally suppose it was impossible.

[00:21:46] Speaker 02:
to know if any of the refunds were given for those specific products or had a bottle deposit.

[00:21:52] Speaker 02:
And then suddenly, we get this bold response to interrogatory, which then Fred Meyer uses to try to defeat classroom education.

[00:22:02] Speaker 04:
I'm not assuming bad faith.

[00:22:03] Speaker 04:
I'm just trying to figure out if we know what those are and whether or not this is going to be a predominance problem.

[00:22:08] Speaker 04:
So it sounds like we don't know how many of those are full or partial refunds.

[00:22:12] Speaker 04:
Is that right?

[00:22:15] Speaker 02:
Correct.

[00:22:17] Speaker 04:
Go ahead.

[00:22:18] Speaker 02:
And you were talking about predominance.

[00:22:19] Speaker 02:
And so if I can, getting back to Judge Hurwitz, were you going to say something?

[00:22:22] Speaker 02:
I was going to get back to predominance.

[00:22:23] Speaker 01:
I'm still stuck on predominance.

[00:22:25] Speaker 01:
I'm not suggesting how I come out on it.

[00:22:27] Speaker 01:
I just need your help on this.

[00:22:30] Speaker 01:
If I were Fred Meyer, I would say, all right, we're going to have a class that includes some people, given my assumption about time value of money, that are not entitled to relief.

[00:22:42] Speaker 01:
And it's $200 a person, as I take it, your argument.

[00:22:46] Speaker 01:
I'd like to show they're not entitled to a lease.

[00:22:50] Speaker 01:
How do I do that?

[00:22:54] Speaker 02:
As to the absent class members who may have received refunds?

[00:22:59] Speaker 01:
Yeah.

[00:22:59] Speaker 01:
I mean, you're saying as long as they make a claim, they're entitled to a refund?

[00:23:05] Speaker 02:
So, and I think this is, so the jury will decide liability on the elements of the UTPA claim.

[00:23:11] Speaker 02:
And what we know from Healy is that the jury, or if defendant raises that summary judgment, absent class member standing, attacking, for example, these people that could have, then plaintiff will come forward with evidence, the evidence that we have already outlined, right?

[00:23:26] Speaker 01:
Now isn't it your burden, so you get to liability, you're class is certified, you get to the liability stage and Joe Blow comes in and says,

[00:23:35] Speaker 01:
I bought one of these and I never got a refund.

[00:23:39] Speaker 01:
I take it Fred Meyer is entitled at that stage to cross examine it.

[00:23:43] Speaker 01:
Correct?

[00:23:44] Speaker 02:
Correct.

[00:23:45] Speaker 01:
And I think that's why we cite... Now there's 8,000 of those people.

[00:23:49] Speaker 01:
Why doesn't that defeat predominance?

[00:23:53] Speaker 02:
Because, Your Honor, that issue of, let's say, lost time value money, that's going to be dealt with.

[00:24:00] Speaker 01:
We have the lost time value money.

[00:24:01] Speaker 01:
I've asked you to put it aside.

[00:24:03] Speaker 01:
Just as somebody who says, I didn't get a refund, I want my...

[00:24:07] Speaker 01:
And therefore I'm entitled to a $200 penalty.

[00:24:10] Speaker 01:
And Fred Meyer says, prove you didn't get a refund.

[00:24:13] Speaker 01:
And he gets up and says, I didn't get a refund.

[00:24:15] Speaker 01:
And I say, well, let me cross examine you about that.

[00:24:18] Speaker 01:
Let me finish.

[00:24:22] Speaker 01:
So I'm envisioning at least a proceeding in which there are hundreds of determinations about whether somebody got a refund or didn't.

[00:24:33] Speaker 01:
Why doesn't that defeat predominance?

[00:24:36] Speaker 02:
outside again of the of the which i'd like to discuss outside of the lost market valley which i do think the district court did rule on in van and and that ruled on it let's assume

[00:24:48] Speaker 01:
Okay, I mean, again, I'm asking you to assume it away.

[00:24:50] Speaker 01:
You have five minutes left.

[00:24:51] Speaker 01:
You can address it.

[00:24:52] Speaker 02:
Okay, yes.

[00:24:53] Speaker 01:
Deal with the question I asked.

[00:24:54] Speaker 02:
Yes.

[00:24:55] Speaker 02:
Outside of that process, so the jury is hypothetical.

[00:24:59] Speaker 02:
The jury determines liability against Fred Meyer.

[00:25:04] Speaker 02:
Like in all such cases we cite to Brazil, there'll be a claims process.

[00:25:08] Speaker 02:
We already filed a notice that got stayed because of the pending appeal to give notice to the class, a professional claims administrator, like they see in Brazil.

[00:25:17] Speaker 02:
Then people will have to submit claims.

[00:25:19] Speaker 02:
There's a portion of people that we think we can track through Fred Meyer's reward program that may have not received refunds, but also were injured through that process that we can identify.

[00:25:32] Speaker 02:
But there's going to be a big portion of the class members aren't identifiable.

[00:25:35] Speaker 02:
That's through the claims process.

[00:25:37] Speaker 02:
And as this court said in Brazil, that's an opportunity in due process, Your Honor, for a defendant to say, look, they submit claims.

[00:25:46] Speaker 02:
There's an affidavit here saying that they purchased this product and that they did not receive a refund.

[00:25:51] Speaker 02:
And then that process is in which defendant can challenge those.

[00:25:55] Speaker 02:
claim forms and actually the whole process of designing the claim form itself through the, well, defendant can participate in.

[00:26:03] Speaker 02:
It won't be the court doing that and having thousands of mini trials.

[00:26:06] Speaker 02:
This happens commonly in class.

[00:26:09] Speaker 03:
How does that not shift the burden over to the defendant to disprove the claims through the claim processing?

[00:26:16] Speaker 03:
Judge aside if you could I not quite how does what you've just described not shift the burden over to the defendant?

[00:26:23] Speaker 03:
Which is when it is your burden to be able to establish with each of the people who are seeking payment through the claims processing Process it's your burden to be able to show that each and every one of those people are entitled to payment How does what you're describing not shift the burden?

[00:26:39] Speaker 02:
Because, Your Honor, that will be decided in the liability by the jury.

[00:26:43] Speaker 02:
So the jury doesn't decide which class members are getting it.

[00:26:47] Speaker 02:
The jury is going to decide liability.

[00:26:50] Speaker 02:
And frankly, like it would any damages, this issue, as Healy says, could be issue of fact that also has to be resolved by the jury in terms of the lost time value, for example.

[00:27:03] Speaker 02:
And so the jury determines liability on plaintiff's class-wide UTPA claim.

[00:27:09] Speaker 02:
And then it goes to the claims process for people to opt out and or to submit an affidavit that says, I purchased this product.

[00:27:19] Speaker 02:
I'm one of the injured class members.

[00:27:21] Speaker 02:
And then there's a post-judgment phase where the court then, and just like the court said in TransUnion, that's important because everyone has to have standing in order to get damages.

[00:27:33] Speaker 02:
And so that process is then to go back.

[00:27:35] Speaker 02:
There won't be any judgment that Fred Meyer has to pay X amount of class members or dollars until that claims process happens.

[00:27:44] Speaker 04:
I think what you're not grappling with is that there are times when this kind of argument is made, and it's going to take a very involved inquiry.

[00:27:57] Speaker 04:
I mean, those cases are cited in this briefing.

[00:27:59] Speaker 04:
Cases where we have to figure out, courts had to figure out what was the pre-crash value of a used car.

[00:28:04] Speaker 04:
And that became too burdensome.

[00:28:05] Speaker 04:
And it falls apart at that.

[00:28:07] Speaker 04:
There are certainly cases where the analysis falls apart at the predominant stage.

[00:28:12] Speaker 04:
And what seems to me to be unique about this case is that it's a 10-cent on-off switch.

[00:28:20] Speaker 04:
I mean, it's a liquid at damages, essentially, and people either incurred it or didn't.

[00:28:24] Speaker 04:
And if that's the question, it seems to me that we encounter that

[00:28:28] Speaker 04:
in every consumer class action?

[00:28:33] Speaker 02:
Correct, Your Honor.

[00:28:34] Speaker 04:
Are you relying on Brasenio?

[00:28:36] Speaker 04:
Is that the answer to Judge Decisive?

[00:28:38] Speaker 02:
I think that Brasenio answers a lot of the questions, because I think, and the case is cited within Brasenio, I should say, because the Brasenio court spent a lot of time talking about this process, although in the context of arguments about ascertainability of the class members.

[00:28:55] Speaker 02:
And in these type of low-value consumer transactions where people don't keep receipts, et cetera, that's a necessary, that claims process is as often as necessary.

[00:29:04] Speaker 04:
Why doesn't Vann defeat your case?

[00:29:06] Speaker 04:
Opposing counsel relies heavily on Vann, too.

[00:29:09] Speaker 02:
And thanks for asking, Your Honor, because I think much like Healy, it's the opposite.

[00:29:13] Speaker 02:
And the district court's spent much efforts in its predominant section, going back to Judge Hurwitz's section, if we look at it, in the 23B3, saying exactly why and talking about Vann and distinguishing Vann, and that was because

[00:29:25] Speaker 02:
Fred Meyer filed a supplemental notice after Van 2, after this court ruled, and it went back to the district court.

[00:29:33] Speaker 02:
And then the district court took this court's notice.

[00:29:36] Speaker 02:
And then the defendant submitted a bunch more information and said, and decertified, essentially, the district court, which you would think.

[00:29:45] Speaker 02:
The key differences here, and we talk about the point of sale, the district court didn't err by saying that the injuries were occurred at the point of sale.

[00:29:52] Speaker 02:
That ten cents is incurred by everybody, every class member, even the ones that potentially received refunds at that time of sale.

[00:29:59] Speaker 04:
I think that's why Judge Hertzwitz is asking you, I think, very correctly.

[00:30:03] Speaker 04:
that we have to assume that some people weren't injured here.

[00:30:05] Speaker 04:
I mean, that's the rub.

[00:30:07] Speaker 04:
We have to assume that some people weren't injured, which is why at the top of the analysis, I think we go to this bakes into a predominance inquiry.

[00:30:14] Speaker 04:
And your best answer to Van not unraveling your class certification effort is no.

[00:30:20] Speaker 02:
It doesn't at all.

[00:30:22] Speaker 02:
It says why that predominance is met here.

[00:30:26] Speaker 02:
We look at district court opinion, we look at Vann.

[00:30:27] Speaker 02:
What happened in Vann?

[00:30:29] Speaker 02:
Everybody in Vann, every single class member in Vann, including the plaintiff, had already been refunded for the phantom Alaskan sales tax.

[00:30:38] Speaker 02:
in that case.

[00:30:39] Speaker 02:
So all of the injury in that case was lost time value of money.

[00:30:43] Speaker 02:
And this court said even a fraction of a cent qualifies for that.

[00:30:47] Speaker 02:
And what happened was when the evidence, the district court didn't properly look at the evidence, this court said that said, well, some members, not because they were refunded, they were all refunded for that tax, but because

[00:30:58] Speaker 02:
There was two different types of renumeration that happened at the point of sale.

[00:31:02] Speaker 02:
And your Honor knows this, so I know I'm talking.

[00:31:04] Speaker 04:
I know, but I haven't heard anybody correctly.

[00:31:05] Speaker 04:
I wonder if either one of you read Vann.

[00:31:07] Speaker 04:
That's what I'm wondering.

[00:31:07] Speaker 02:
Oh, I've read it many times, Your Honor.

[00:31:09] Speaker 04:
Okay, so here's the difference in Vann.

[00:31:10] Speaker 04:
So you have an opportunity to respond.

[00:31:12] Speaker 04:
There were several things going on, a lot of cross-currents in Vann.

[00:31:15] Speaker 04:
The first is that it's only 18, correct?

[00:31:18] Speaker 04:
But there's an exhibit in that case that the district court simply overlooked.

[00:31:22] Speaker 04:
He thought there were two.

[00:31:23] Speaker 04:
And we said, no, you have to, that's clearly one issue.

[00:31:27] Speaker 04:
You have to have overlooked that exhibit.

[00:31:29] Speaker 04:
That's the first thing that happened.

[00:31:30] Speaker 04:
The second is that there were refunds given in that case for a lot of different reasons.

[00:31:34] Speaker 04:
And the third is that there were plaintiffs in that case who had been apprised of the problem, that the computer was inappropriately collecting sales tax.

[00:31:43] Speaker 04:
And they went forward with the transaction anyway, suggesting that they weren't dissuaded.

[00:31:48] Speaker 04:
They didn't have an Article III injury.

[00:31:51] Speaker 04:
on those transactions.

[00:31:53] Speaker 04:
So there was lots going on, and the opposing council acknowledged, and I appreciate that, what we did there was remand for the inquiry.

[00:32:00] Speaker 04:
Anyway, so now I've read Vann, and at least I told you what I have taken out of it, and I think it's important.

[00:32:09] Speaker 04:
I think it is the case that you need to grapple with, and I've taken you over your time, but let me just check with my colleagues.

[00:32:15] Speaker 04:
Is there anything further?

[00:32:17] Speaker 04:
No.

[00:32:18] Speaker 04:
All right, council, do you want to wrap up, please?

[00:32:19] Speaker 02:
Yes, and so I just want to leap right back into it, and we put it in the brief, and I think, and maybe not as clearly as we could, because rereading the district court's opinion, and the sort of third reason, if we look at it under its predominance analysis and discussing Vann, it does distinguish, and those distinctions are important, because at the point of sale, all these coupons or whatever were received at the point of sale, the court said,

[00:32:46] Speaker 02:
coming back on remand that the ones and even the Ninth Circuit, this court said that at the time of sale, if they receive something that compensated them at the time of sale for the lost time value of money, then they wouldn't have standing.

[00:33:02] Speaker 02:
But there was another subset of class members who didn't receive.

[00:33:06] Speaker 04:
Council, this is supposed to be a wrap-up.

[00:33:07] Speaker 04:
This is supposed to be a wrap-up because you're three and a half minutes over your time.

[00:33:10] Speaker 02:
As we point, there's no evidence that any class member, even those that received refunds, could have received any compensation for the lost time value of money, even if they received the purchase price of the whole product, that was a refund for the product and the 10 cents, not the lost time value of money.

[00:33:26] Speaker 02:
Thank you.

[00:33:26] Speaker 04:
Thank you for your argument.

[00:33:28] Speaker 04:
I'm gonna stop you there because we've taken you significantly over time.

[00:33:31] Speaker 04:
Council, could you come back up?

[00:33:31] Speaker 04:
Madam Clerk, would you please put two minutes on the clock for Council?

[00:33:36] Speaker 00:
Thank you, Your Honor.

[00:33:37] Speaker 00:
So counsel's response on the predominance issue was Brasenio in the claims process.

[00:33:42] Speaker 00:
That doesn't work anymore after Healy and TransUnion.

[00:33:45] Speaker 00:
So both of those cases made clear that standing is something that has to be determined at trial.

[00:33:49] Speaker 00:
It can't be determined subsequently at the claims process.

[00:33:52] Speaker 00:
And I didn't hear any answer.

[00:33:53] Speaker 00:
I haven't seen anything in the record that would show how this could be determined at trial.

[00:33:57] Speaker 00:
So I think to answer Judge Hurwitz's questions, how would this play out?

[00:34:01] Speaker 00:
The way I imagine it would play out is that

[00:34:04] Speaker 00:
we would put in evidence showing that more than 1,000 refunds were provided for varying amounts of money.

[00:34:10] Speaker 00:
And then it would then be plaintiff's burden to show that each individual class member, in fact, both paid the $0.10 deposit and did not receive a refund, because that's what they would need to show to show that they had standing at the time of suit.

[00:34:23] Speaker 01:
And I'm not aware of it.

[00:34:25] Speaker 01:
Why would that defeat predominance?

[00:34:26] Speaker 01:
So let's assume it proceeds that way, and they bring in a bunch of affidavits.

[00:34:33] Speaker 01:
from people that said I never got a refund.

[00:34:37] Speaker 00:
I believe they'd have to bring in an affidavit from every single class member, and then we'd- No, no, only from the class members that they seek damages for.

[00:34:46] Speaker 01:
But they seek damages- To the extent I don't have such an affidavit, we don't get damages.

[00:34:51] Speaker 01:
Well, Your Honor, they- It strikes me as a perfect, it can happen at trial, it strikes me as a perfectly manageable process.

[00:35:00] Speaker 00:
Well, Your Honor, essentially,

[00:35:02] Speaker 00:
then every class member, there would essentially be no unnamed class members, just a small subset of the class would appear?

[00:35:09] Speaker 01:
No, I'm asking you to assume that we get past your Article III arguments, which, and now we're at trial, and it's their burden to show at trial that the damage that a class member suffered damages, and they can't show it as to some number of people because they don't have affidavits or other proof that they suffered damage.

[00:35:31] Speaker 01:
Those people are now excluded or now don't get a recovery.

[00:35:35] Speaker 01:
But I don't understand why that's unmanageable.

[00:35:38] Speaker 03:
Or why that defeats predominance.

[00:35:40] Speaker 00:
So even if we're talking about now just a subset of the class, say they put in an affidavit at trial saying, I paid a deposit, I didn't get a refund.

[00:35:47] Speaker 00:
Fred Meyer is still entitled to challenge that.

[00:35:49] Speaker 00:
We're still entitled to call them to the stand and challenge that.

[00:35:52] Speaker 00:
Because this is a trial.

[00:35:53] Speaker 00:
This can't be left in the claims process.

[00:35:55] Speaker 03:
So we have the... So I think the question that Judge Hurwitz is asking, and I have a similar question, which is, let's say we agree with you on that point, that this has to be done at the trial summary judgment stage and not at some point later through the claims process.

[00:36:10] Speaker 03:
Right.

[00:36:11] Speaker 03:
Why does that require us to rule in your favor on the predominance issue?

[00:36:17] Speaker 00:
Because, Your Honor, the plaintiffs haven't put in any evidence to show that this could be done in any sort of manageable way at trial, because again, it would boil down to

[00:36:25] Speaker 00:
individual testimony by each individual class member.

[00:36:28] Speaker 04:
I haven't heard you respond.

[00:36:30] Speaker 04:
On this point, if you could bake in, I haven't heard you respond to the observation that I think your argument would wipe out every consumer class action case.

[00:36:39] Speaker 00:
No, Your Honor.

[00:36:39] Speaker 00:
That's not the case.

[00:36:40] Speaker 00:
I think the... Why not?

[00:36:43] Speaker 00:
Because there are many cases in which a refund wasn't provided.

[00:36:46] Speaker 00:
And so that's one.

[00:36:47] Speaker 00:
There may be cases in which the class can be defined in a way that would not contain members who lack Article III standing.

[00:36:54] Speaker 00:
Or there might be ways in which a plaintiff can put forward evidence showing that there will be a viable way at trial to distinguish between those class members who are injured and those who are not.

[00:37:02] Speaker 00:
The issue here is that what we know is that lots of class members aren't injured, but we don't know which ones.

[00:37:07] Speaker 00:
We don't have a viable way to determine which ones are injured and which ones are not.

[00:37:11] Speaker 04:
It does sort of circle back inevitably to the position your client first took where they couldn't tell about these refunds at all.

[00:37:17] Speaker 04:
And then they came up with this number, but we don't know where.

[00:37:20] Speaker 04:
and opposing counsels saying we think that we may be able to identify those people through the records.

[00:37:24] Speaker 04:
So that is difficult for you.

[00:37:27] Speaker 04:
You're just about out of time, but hang on.

[00:37:29] Speaker 04:
Do you have something on this point Judge Herbich?

[00:37:31] Speaker 01:
There's a broad class definition here of anybody who purchased during a period.

[00:37:37] Speaker 01:
What if the class were redefined to be anybody who purchased during a period and did not receive a refund?

[00:37:44] Speaker 01:
Would you be making the same arguments?

[00:37:46] Speaker 00:
No, Your Honor, we'd likely make different arguments.

[00:37:49] Speaker 00:
The defense haven't proposed that class division.

[00:37:51] Speaker 00:
I think that's something.

[00:37:51] Speaker 01:
No, I understand.

[00:37:52] Speaker 01:
But we have some power.

[00:37:56] Speaker 01:
And so I guess I'm asking, what if we told the district court to redefine the class as those who did not receive refunds?

[00:38:03] Speaker 00:
We wouldn't be making the same arguments.

[00:38:04] Speaker 00:
We'd be making different arguments, including failsafe class arguments.

[00:38:07] Speaker 00:
So this was dealt with in a footnote in a lien, essentially saying, in some circumstances, you might.

[00:38:11] Speaker 03:
And you would still be making your standing argument.

[00:38:14] Speaker 00:
Well, depending on how the class is defined, we might still be making our standing argument.

[00:38:18] Speaker 00:
Yes, your honor.

[00:38:18] Speaker 00:
It would really depend.

[00:38:19] Speaker 00:
But again, that's not an issue that was litigated below and sort of tough for me to say in the abstract how that would play out.

[00:38:25] Speaker 04:
Fair enough.

[00:38:25] Speaker 04:
Do you want to make closing?

[00:38:27] Speaker 00:
I just want one closing remark is that the council said that, oh, the district court distinguished Vann.

[00:38:33] Speaker 00:
The basis on which the district court distinguished Vann was that every class member here had Article III standing.

[00:38:38] Speaker 00:
That's what it held.

[00:38:40] Speaker 00:
And because that's wrong as a matter of law, that alone is enough to reverse and remand, let it do the predominance inquiry, which we submit they can't possibly satisfy, but at least should be up to the district to determine that.

[00:38:49] Speaker 00:
Thank you.

[00:38:50] Speaker 04:
Thank you for your spirited advocacy, both of you.

[00:38:52] Speaker 04:
It's helpful, and we appreciate it.

[00:38:54] Speaker 04:
We're going to take that case under advisement and stand in recess.

[00:39:00] Speaker 02:
All rise.