good morning your honors may i please the court my name is richard faber i represent plaintiff jim cherry individually on behalf of a similarly situated class of persons identified in our complaint i'm here with joseph dolan and we also represented mr cherry in the trial court we submit that the district court erred in granting the motion to dismiss for five primary reasons first that the court resolved disputed reasonable inferences in defendant's favor instead of plaintiff's favor second that the contract is reasonably susceptible to the interpretation proffered by plaintiff third that the court erred in declining to consider how the parties america west and bank of america interpreted ten years of prior affinity marketing agreements fourth that the court erred in deciding the plaintiff did not occupy third party beneficiary status and fifth the court erred in deciding that the plaintiff did not occupy third party beneficiary status to assert a claim in that status he was precluded from asserting his statutory claims for relief and the portion of the breach of contract claim for good faith and fair dealing as a cardholder mr farber can you help me with regard to the third party beneficiary issue as i understand it your client is claiming rights under the agreement between bank of america and america west yes your honor and i looked at i guess the relevant portion of that contract and it seemed to me that all it does is talk about the rates at which bank of america would offer the credit card program through america west and i'm wondering why did judge tilbert err in finding that because that is a contract that's between those two parties it doesn't erner to the benefit of any of the subsequent card holders yes before i answer that let me back up a second i'd like to allot nine minutes for the four claims for relief six minutes for attorney's fees you're going to have to keep track of your own time all right five minutes for rebuttal primarily because the contract specifies that the rates precise numerical rates that are indicated on exhibit b to the exhibit cannot be changed unless ninety days prior written notice is provided to america west now that's not a change of a rate that america west is paying that's a change of a rate that the cardholder is paying and we point out to the court that nowhere below in either the motion to dismiss responses and replies yeah but america west i mean i fly america west frequently they sell tshirts they sell these credit cards at the airport they wanna know when would the rate changes this is a very competitive thing for absolutely we are not denying that america west is a beneficiary of the agreement for reasons that judge tilburg said you know he pointed out that america west has an interest and a competitive and commercially reasonable rate being charged as is required by the agreement as well but the agreement also says that the rates attached on exhibit b cannot be changed without prior ninety day written notice now their position is well but it only says intends to offer so if it says intends to offer then that's sort of an aspirational goal and there's nothing mandatory about that we would respond with three points first the ninety day notice provision becomes meaningless an illusory if the intent offer provision is only interpreted as an aspirational goal to what rate would the first ninety day notice provision to america west apply if not to the rates specified on exhibit b in the january two thousand and one agreement was there any evidence in the record that at the time that the card was issued to mr cherry and to the other putative members of the class that they were given the usual insert that comes with my credit cards that i never read that tells me all the terms and conditions including the rate that's gonna be charged and it also warns me that if there are changes in any of the terms and conditions that by my subsequent use of that card i am by that act agreeing to the changes in the term absolutely and there was evidence that that was the way that the rates were communicated yes to the card holder and we also alleged that the rates that were communicated to cardholders during the approximately ten years of that relationship were the rates that were specified in the agreements between bank of america and america west they weren't pulled out of the air they weren't made up pursuant to some claim of sole discretion they were the rates contained in the contracts but as i understand your argument the argument is that under the third party beneficiary theory that if those rates became more favorable as between bank of america and america west that your client was entitled to the lower interest rate even though he was operating under what i guess is a direct contract between the card holder and the credit card issuer which states what the interest rate will be so yes long as he continues to use the card yes and our contention in that regard with all inferences being resolved in plaintiff's favor is that the parties understood that that rate lower or higher was governed by the terms of the agreement and again back to the ninety day notice period of which agreements which agreement though that's what i'm trying to get at well in this case we're alleging they didn't comply with the terms of the two thousand and one agreement you're conceding that they complied with the terms of the direct agreement between the credit card holder and the issuer yes okay yes but that they had no authority to charge any rate other than the rate specified in the agreement with america west pursuant to the ninety day notice provision we would agree with defendant entirely if the contract did not have a requirement that before changing the rates in the agreements between america west and bank of america that bank of america provide america west ninety days written notice of that change because then they would in fact their reading of the agreement is fine but under the rules of construction that say when interpreting an agreement all provisions should be interpreted in a manner that give meaning to all provisions if we simply stick with the cardholder agreement itself then the ninety day notice provision has no meaning because bank of america has sole discretion to do whatever it wants but the ninety day notice provision benefits america west i mean unless we buy your thirdparty beneficiary theory it doesn't matter visavis the card holder unless he is truly a third party beneficiary and i guess i'm trying to if we rule in your favor what will that do to the practice of car dealerships that sell cars where the financing rate today is nine but two months from now you know it's lower let's say it's five does that mean that somebody who bought the car at nine is now entitled to have the interest rate lowered on the car because gmac is offering better interest rates down the road no if that car dealership had a marketing relationship for instance with the phoenix suns and the phoenix suns sent business to that car dealership pursuant to an agreement between the phoenix suns and the car dealership and within that agreement it said here are the interest rates that you will charge these customers in financing and you may not change those interest rates until you provide us phoenix suns ninety days notice of any change that those are the rates and that are applicable absent that notice which we've alleged didn't occur now as to the broader negotiations for the car two months down the road the dealer says i will sell you this car but the interest rate is going to be at you know fifteen and then i either buy the car or i don't i use the card or i don't understanding with the warning in my contract that the interest rate that applies is gonna be a higher interest rate well again all of that is fine except there's no authority in this case for bank of america to issue cards to any america west customers absent this affinity marketing relationship here's another what is this are we talking about arizona law here yes ma'am okay what is the strongest case under arizona law that involves a situation remotely like this well there's a threepart test to determine whether a party is a third party beneficiary we would throw out this argument to the court with respect to the cardholders yeah but what is the strongest case in arizona that recognizes a third party beneficiary relationship in a situation remotely like this i would suggest to date it's the namm case which we cite which is very similar in this respect you've got an agreement between a hospital and blue cross that has nothing to do directly with the actual patient subscribers within that agreement pricing terms were set and what the court held was in mayhem that the actual insureds were third party beneficiaries for two reasons one they said they were named numerous times throughout the agreement two they said the effect of the agreement was to preclude the hospital from charging more right than what's specified in the agreement here the effect of the agreement is to preclude bank of america from charging more than the specified in those pricing terms absent ninety days written notice to america west and we would just throw out this general point but isn't there a difference in namm because in namm i am a patient or an enrollee of the blue cross medical program and i am promised that if i check into the hospital that whatever the rates are that are being reimbursed by blue cross for the services provided to me i'm not gonna have to pay any more than what my insurer pays for the covered services and that promise was not made as i understand this record to the credit card holder but the rates being charged are rates set in a contract between blue cross and the hospital but its a different contract mr farber and i mean blue cow brown cow you know if the terms of the contract are different i'm not sure how you are supported by that well here's what we would say just concerning that the contract generally there is no provision any provision in the contract between america west and bank of america that can be meaningfully implemented without the participation of the cardholders that goes to marketing and retention it goes to issuing applications it goes to bank of america and america west paying each other without the direct intentional and primary participation of the card holders which is the standard of the threepart test that agreement means nothing the cardholders have to be involved in that sense we think they are primary if you're involved by continuing to use the credit card but in not continuing is there any reason by simply being an active card holder is there any reason why you couldn't have canceled the card and gotten a new one or the new rate no and my brother who's an economist he does that all the time well and that was our point below that what they argued below was that their intention in this contract and that they complied with it was who's they bank of america that what the parties intended was that this eight hundred and forty nine was available and that what the card holders should have done all existing cardholders like mr cherry should have called the bank of america canceled their card filled out the new application with all of the downside to all of that process that we set forth in our brief and we don't think that was their commercially reasonable intent we think their but isn't that why my mailbox is full of credit card i mean i get these things all the time ya know if you sign up with the first national bank of south carolina you get a better rate than them there balances yeah absolutely except in this case there would be no reason for bank of america and america west to negotiate a contract where they decided that okay how should we handle this let's set an interest rate where we're deliberately going to encourage thousands of our customers to cancel their cards forfeit their fees will lose revenue mileage won't be posted because people don't do it right exactly but they could if it were that important to get the rate all they have to do is ask right well one of our points is that we think it's relevant and important that an examination be permitted of how america western and bank of america in appropriated their contracts during the previous nine years now what the district court said was that it would not consider that issue and it said two reasons for that one of which was contradictory on page sixty five sixty six of er it says in its order we will not consider i will not consider how the parties implemented their previous contracts because in their previous contracts they used the term may be effective as against intents to offer and therefore i'm not gonna consider those contracts so he used a term from the contracts to support his decision that he wouldn't consider the contract okay you've got a little over five minutes left do you want to talk about the fees briefly yes thank you we have just a i have a question about that it's not a certified class correct that's correct how did the fact that the class is essentially still putative rather than certified strengthen or weaken your argument that attorney's fees should be awarded on a prorata basis across the entire class well we think it does neither because a class representative owes duties to the class as we've set out just as a certified representative owes duties to the class that it will have the same negative impact on and the same crippling impact on contract class actions being brought at all if a class representative can be held personally liable for eight thousand and should it go through trial eighty thousand times there's no question the fees were incurred absolutely but they were not incurred defending the individual's claim they were encouraged defending the perceived exposure to the putative class and while we agree that that's essentially an unfair result in terms of a defendant being able to recover its fees as we point out under arizona law the right to recover fees is not and has been expressly rejected by the arizona supreme court is not an ordinary how does this work if i suppose i'm out there and i hold one of these cards just like your client so i'm a member of the putative class yes now does the bank get to recover fees from me no and that law is well settled and we agree with defendant a prorated apportionment results in the same results of the defendant as a successful defendant as successful defendants recovery of costs so i don't have to pay them but you pay only as if i did pay that's correct and that's what those cases have said with respect to mandatory statutory costs after certification and the grounds for that reasoning was that to do otherwise would fatally cripple the class action device because no only lunatics and madmen will ever step forward to be a representative of a class if they think they can be personally exposed for thousands of times their individual claim in that circumstance the result is that the defendant simply does not recover those mandatory statutory costs but that's after the class is certified well or at the certification process but because the case can be lost at either stage i don't see what they argue i just don't understand the argument that that you can bring that a person can bring an utterly frivolous class action suit cause a defendant to incur thousands and thousands and thousands of dollars of fees in order to defend it and then not have any responsibility absolutely and we agree with you when a defendant brings an utterly frivolous case or even if there's a rule eleven finding or a 341oc filing of bad faith then that's absolutely right that individual should be charged but not if you just failed to state a claim that's exactly right because you can be dismissed for failure to state a claim and authority for that but if you don't stay to claim you're not liable for the fees incurred no but if there's a rule eleven finding you are is there any authority well no in that sense all of our questions are that's a first impression question and in that sense it's a first impression question but does the district court have a lot of discretion in this we think it has discretion to award reasonable attorney's fees in a manner which will not cripple the rule sixty eight class action litigation device there's risk inherent in all class action and presumably there are pooling arrangements that are made by class counsel with regard to figuring out how to share expert witness fees and other costs of discovery that may be lost if the litigation is unsuccessful yes why should it be any different with regard to attorney's fees where the claim is determined to be completely unamericanized well because cost can be shared and cost can be advanced defense counsel has informed why can't fees be because defense counsel informed us that should we try to pay these fees and assume these fees on behalf of mr cherry we would be in violation of two state bar rules eighteen e and eighteen j and that we would be subject to disbarment so they asked us to actually to confirm in writing that although we would obviously think that's the fair result and that can be a fair result in terms of costs as the rand case stated that she may be counseled pick up these costs counsel has informed us that in fact they want confirmation that we will not personally pick up these costs and that mr cherry will personally pay these costs okay you have about a minute left all right thank you very much i think we should hear from you you can stay here please stay up stay in front of the bar so that you can present your rebuttal and may it please the court counsel my name is jennifer hadley at dioguardi i'm from the phoenix office of snell and wilmer and i'm here on behalf of the defendant appellee bank of america the core of operative facts that i think everyone agrees on here is is we've got two issues with respect to this third party beneficiary claim one does this card i'm sorry not the card member agreement but what we've been calling the affinity agreement the agreement between the bank and the airline does that agreement indicate an express intent on the face of the agreement to create a third party beneficiary right in the plaintiff and other similar situated card members and then if you do find that that agreement does create a third party beneficiary right what is the impact of the plaintiff cardholders direct contract with the bank on that right plaintiff has a direct card holder agreement with the bank providing for a nine hundred and ninety nine interest rate that agreement also reserves discretion in the bank to set the terms for that card and to change those terms for that card that direct card holder agreement with the bank does not state that if the bank enters into an agreement with a third party we're then going to change your rate as well we've got a oneonone relationship with that card holder and that's really an accord with some of the principles behind the truth in lending act and whatnot you need to disclose to this person what you're going to charge to them and on what terms that rate is going to be changed on the second hand here we've got this card i'm sorry the affinity agreement i keep getting the names of these two agreements mixed up the agreement with the airline this agreement is forty something pages plaintiff keeps maintaining that the bank has no authority to extend credit to card holders but for this agreement and i disagree with that position how does the plaintiff says that how does the plaintiff reference say that he's referenced in the affinity agreement the affinity agreement refers to an intent to offer to flight fund participants so it's ff participants participants is what he's saying he put right that's got his name on it and if you look in the terms and conditions of that affinity agreement it defines ff participant as someone who is either i'm an america west customer or already enrolled in the flight fund program that definition does not necessarily include flight fund members who already hold a card and i think that comes into play when you look at section seven of the affinity agreement plaintiff has demanded that he's entitled to enforce an obligation upon the bank to communicate to him not only to give him the eight hundred and forty nine margin rate but to do so in a very specific fashion he's claiming that the bank is obligated to send directly to him not through a mailer provided to america west to send to flight fund participants but obligated to communicate directly to him through a change in terms notice this eight hundred and forty nine margin rate and if you examine the entirety of section seven of the affinity agreement which lays out in detail the banks obligations with respect to communicating with existing card holders for purposes of putting into play and expressly designed retention program directed at existing card holders as well as communicating with new card holders or potentially new card holders doesn't he say he's entitled to the adjustment without applying for a card in essence and this is something which actually brings up a good point which i would like to raise with you all to clarify it's a bit confusing because when you looked at the arguments that were addressed on the bank's motion to dismiss the plaintiff's position at that point was really that the bank was obligated to just charge me this apparently unilaterally immediately change his interest rate to eight hundred and forty nine i think after the oral arguments and reading judge tilburg's opinion with respect to looking at the limitations in his card member agreement for how the bank can change his rate and then also the language in the affinity agreement with respect to the term offer as opposed to immediately charged plaintiff then came back on the motion for reconsideration and said no what i really meant to say and give me a chance to amend my complaint to say is what the bank was obligated to do was to send me directly not through a mailer provided from america west but to send me directly this change in terms notice and so when you're looking at references in the plaintiffs appellate level briefs he sometimes make references to judge tilburg saying well you were really saying x when what you meant to say was y well at one point he was saying x not y on the motion to dismiss and then it was not until the motion for reconsideration that the argument shifted to this offer and the way in which the offer needed to be conveyed and i think that sometimes creates some confusing issues in reading the appellate briefs you need to look at which order the plaintiff is citing to and consider which type of obligation he was advancing at that point in time let me ask you a question the affinity agreement i take it establishes the terms that bank of america is willing to offer to america west frequent flyer card holders who apply through america west for the bank of america credit card is that right that's correct and presumably there is an interest rate that is quoted which is in essence what the bank is willing to offer that particular program for america west then i guess pays bank of america or gets paid by bank of america separately for participating in the program is that how it works it's actually and those are the portions and i can understand your confusion those are the portions of the affinity agreement that we had to redact for confidentiality yeah i figured this much it has to do with apparently this was a very competitive industry these banks and these airlines negotiating these agreements and basically what the bank does is they buy the miles from the airline at a specifically negotiated rate so the airline does not benefit from the specific interest rate in the sense that they get money directly in their pocket from it however not tied to the interest rate right although it is tied somewhat i suppose to the success exactly and that's why of the programming the interest rate issuing this many is of interest credit card that's all and of benefit to the airline that's helpful i figured that's why you kept it out but i really did need to have some understanding of how that works right and those provisions all that were redacted had to do with the compensation that flow directly from the bank to the airline and how that was reported you don't want southwest to know that no because if the bank tried to enter an agreement with them they'd hold those terms over our heads so let me get back to the argument again and i think another important point to make is as plaintiff has talked at length below in the appellate briefs and then here today about terms such as reasonably disputed inferences the contract is reasonably susceptible i'm encouraging judge tilburg and this court to look at the prior agreements between the bank and the airline what plaintiff is really asking this court to do is to put arizona back in the camp of the restatement with respect to how third party beneficiary rights are created the first and now currently the second restatement talk about examining the surrounding circumstances of the agreement and the subjective intent of the parties arizona specifically rejected that approach nearly fifty years ago in irwin and has consistently sided irwin with approval when they expressly rejected the approach of the restatement and said you know what with respect to this intent we don't like this gray area especially with respect of people that aren't parties to this agreement we want people who enter agreements with each other to be certain as to when they're going to owe something to somebody else and for that reason we're gonna require this contract on its face to express a clear and direct intent to convey a specific benefit to that third party now examples of when the arizona courts have interpreted contracts to find a third party beneficiary argument are i think it was us fidelity and guaranty versus farrago's plumbing it had to do with an owner of a construction project and a contractor entered into an agreement together with respect to the construction and in that agreement the owner specifically agreed to purchase insurance and the point of the owners purchasing the insurance was to protect the interests of the contractor third party subcontractors as well as subsub contractors that agreement also stated that if there was some sort of damage or a loss to the property as a result of the conduct of one of these subcontractors the owner's right to recover was going to be limited to that insurance and in that context the court looked at that and said well these parties clearly intended this owner to purchase this insurance to insulate this third party like this third party subcontractor from liability and they also specifically agreed not to go after that thirdparty subcontractor that's an example of when the courts have found an expressed intent in the agreement to convey something directly and intentionally to that person upon which they can recover an example similar to this one when the courts have not found a third party beneficiary right i would refer the court to the de certeau case in which a party who was injured on a mining construction type site tried to sue based on a contract between again a similar owner contractor situation in which one of the contractors on the job specifically agreed to take safety majors to protect the employees the public persons on the job site they agreed to implement those safety majors which frankly conveyed an absolute benefit to those people working on the job site but did that agreement specifically communicate an intent to create an actionable obligation on the part of people on the job site no the purpose of that agreement was to convey the obligations of the contractor and the project owner with respect to running the site that's similar to the situation we have here i submit to the court that judge tilbert correctly applied the irwin standard regardless of whether the plaintiff is advancing a theory of which he originally advanced on the motion to dismiss that the bank was obligated to unilaterally charge him a particular interest rate or whether it's the second theory that the bank was obligated to directly send him some sort of change in terms notice you cannot find anywhere in that credit card or the affinity agreement a direct and clear expression of intent to benefit the card holder as opposed to the bank and the airline trying to define their relationship with respect to each other and that is why judge tilbert disposed of the third party beneficiary claim now moving on to the claim for breach of the covenant of good faith and fair dealing plaintiff brought that basically based on two separate agreements he sued for the covenant of good faith and fair dealing in the affinity agreement in a third party beneficiary basis now if the court does not find that he's a third party beneficiary he obviously does not have a right to sue to enforce a covenant on a third party beneficiary basis he also sued based on the covenant contained in his card member agreement essentially stating that the bank breached some sort of duty of good faith in leaving the agreement exactly the way he agreed to pay the interest the bank supposedly breached some sort of duty of good faith by continuing to charge him the exact interest rate he agreed to pay there's no and plaintiff is trying to incorporate some sort of a term from this other this affinity agreement into his card member agreement as the source of the duty the bank concedes that there are cases in which this covenant can be formed or based upon something outside of your contract however there is no case that plaintiff can cite to and bank could find none in which the source of that duty was a lesser thirdparty beneficiary right and i think judge tilburg you kind of hit the nail on the head and in the impact that such a holding what have on the certainty when people in lending situations enter into an agreement with their customer if they enter into some sort of you know again global agreements say with those senior financer to you know extend you pointed out car loans in the future at a certain rate what happened to the certainty and the terms i've entered into with you and if you can import some sort of nebulous good faith standard into an agreement that requires you and someway to distinguish some of the cases plaintiff's cited is there was one or two the beatty case in particular where my client bank of america was prohibited from adding an alternative dispute resolution term to an agreement despite retaining express discretion to change the terms of the agreement now the court in that case was looking at when you retained discretion to change the terms it's reasonable for the parties to think you're just gonna change the existing terms you're not gonna add completely new ones that we never thought about when we entered this agreement to begin with and there was no provision for adr to begin with in the card member agreement and for that reason despite the express retained discretion in the bank to add terms the court said not that kind of term it's we need an express waiver of a right to a jury trial here that's not the kind of term the party was anticipating conversely if you apply that to this situation the plaintiff is saying that we cannot exercise that grant of discretion to change an interest rate which was a term that was already in the agreement and is saying not only can we not exercise we can't exercise that discretion to leave it the same which is different than beatty where the court was exercising the discretion to import a different term i'd like to turn my attention for the last few minutes here to the attorney fee issue the standard on that is an abuse of discretion standard plaintiff in essence is asking this court to create new law in arizona and as much as he is basically asking for a blanket exemption to the application of twelve dash thirty four thousand one hundred and one when you are a plaintiff who has brought an action on behalf of a class and you've got a relatively small individual claim there's not a case in arizona that says you cannot apply that statute to a particular group of plaintiffs it's to be applied evenly to plaintiffs and defendants and i don't believe that the apocalyptic result of no more contract class actions is going to result from this and i don't believe that for a couple of reasons one is plaintiff has pointed out in his briefs it is not necessarily a done deal that if you lose an action you're going to get hit with fees there is a sixth step inquiry that the court must undertake it's fact specific it's tailored towards the circumstances of the case it involves the party's conduct in the case it involves whether the case could have been resolved it involves the strength of the theories and the person that's best in the position to judge whether this is the type of case that's going to suffer from people bringing valid claims in the future it's that sixth factor there is the trial judge yeah and i assume that your client would argue that we don't want to encourage people to file meritless class actions i agree with that that's exactly what my client would argue and here i think something that the judge although he didn't say so in his order i think it's something that influenced the opinion is this was a situation where the plaintiff amended the complaint not once but twice didn't survive a motion to dismiss and then chose to bring a motion for reconsideration you know it's the conduct that goes on in the case the opportunities to present the theories the strength of the theories it does not have to be a frivolous case we've got rule eleven for that and in arizona we've also got a twelve dash three hundred and forty nine as well as subc of the statute that's an issue here that's for frivolous cases suba is for something less than a frivolous case but one that you still want to encourage a party to think twice about bringing and i submit to the court that this is just such a case now with respect to the prorata share argument plaintiff has cited cases that have to do with whether or not you can examine the financial background of a plaintiff and that a plaintiff has to say at deposition that he will agree to pay a hundred percent of the costs as a precondition to finding that person an adequate class representative i think that's a different inquiry than where we are on the backend where not only are we not even addressing whether this person is an adequate class representative we found that the claims cannot go forward i think the right v shaw cases is directly on point on this issue and i believe it was either the ninth circuit or the district of arizona i forget which i think it was the ninth circuit in which they awarded sixty thousand in costs against the named plaintiff of a putative class action when his claims were dismissed prior to class certification that person because there was no class to be certified to share those costs that person had to pay all sixty thousand of those costs i think putting this prorata share argument also into practice it really baffles me as to how that would be done in a way that that would be fair to a party who successfully defended the claim on the merits is the bank then to go through and disclose all of the existing card holders who had a card at a different interest rate as of january two thousand and one add that up and then figure out what fractional share plaintiff should be it seems to me that that's a rather large burden i think you have this all briefed all right thank you thank you thank you as fast as i can speak here you have about a minute left judge callahan yes plaintiff is in the category of ff participants defendant did not dispute that below and judge tilburg specifically found that second to defend to not discuss it all the beaudry case on plaintiff's claims of breach of covenant of good faith and fair dealing in the cardholder agreement the facts there are virtually analogous to these facts in terms of what they're suggesting about retained rights sole discretion and course of conduct in that regard we continue to maintain that because mr cherry over a ten year period was charged the rates specified in that agreement that that course of conduct under beaudry supports that we've stated a claim stating a claim doesn't mean we're gonna win the claim it means we've stated a claim third the right versus shaw case it was one hundred and thirteen thousand claim was a sixty thousand cost award there was no argument made before this court and it was a ninth circuit case that that would negatively impact the class action device fatally crippling fourth defendant has agreed that with respect to costs that costs that are grossly disproportionate will result in that sort of crippling that only lunatics and madman would ever file a case like that in the first instance the only disagreement in that regard is the timing and because every class action must be filed initially by an individual plaintiff and every class action can be lost at any stage of the proceedings hindsight is not as the supreme court said in christianburg there shouldn't be any risk involved in filing one that has no merit well yes ma'am but to argument we understand your honor yeah okay but just as in christianburg where the supreme court held with respect to title seven that are prevailing only prevailing plaintiffs only prevailing plaintiffs should recover attorney's fees with a neutrally facial statute we're not advocating that stringent a standard here because otherwise the policies underlying class actions will be crippled thank you very much thank you the case just argued is submitted for decision now that concludes the courts calendar for this morning this the last case has been settled and the court stands adjourned all rise and the courts of this session stand adjourned