minutes for a bottle i'm going to highlight a couple key points and absent questions from the court reserve the balance of my time the first point i want to highlight is that southwest promises usable funds to its customers in order to gain competitive advantages advantage southwest promises that a customer can buy a nonrefundable ticket cancel it and use the money paid for the ticket as credit purchase future purchase of travel on southwest and i don't think that's seriously disputed in the supplemental with already that southwest submitted a couple weeks ago robinson vs american airlines and stewards versus southwest it states that there is an unambiguous reusable funds agreement that calls for a twelve month eligibility period twelve months in which the customer can use the reusable funds for the purchase of travel on southwest this case is about an exception that policy that is unexpected and not part of the southwest agreement with its customers i may ask you because you contend that southwest helped provide conspicuous notice of the earlier expiration date but isn't that expiration date clearly noted on the face of the ticket right next to the confirmation number there is an expiration there is a term expiration but the meaning of that term isn't available to the customer at that point  expiration date what's theirs and theirs and there's a date why would that mean the date the ticket expires but that doesn't mean that it cancels to be usable funs agreement on that date that there nothing to say that that's not conspicuous to the it's true that well then you have to educate the what should the more conspicuous notice look like it should say something like what southwest says now which is  to ensure i'm sorry new reservations inherit the earliest expiration date for from any funds applied from the old ticket therefore the expiration date of our new reservation and all associated funds may be less than twelve months or something like that so the customer goes in there with an expectation that they have a twelve month reusable fund period from the date of the purchase of a ticket it's true that when they combine travel funds the expiration date will change and if they're very careful they may notice that there's an expiration date that is less than twelve months but they don't know what that means they have no way of knowing what that means certainly not on the face of the ticket there's no explanation here expiration date mean takes an oath to read the regulations but the math through a related question the only thing you're sorting now is a breach of contract claim right yes or is that a right right and the cut and how did southwest breach the contract it but by not by not allowing a twelve month period exactly carriage in order to understand what all but the contract of carriage is it is part of the contract is not it's part of the contract all right so and under the contract of carriage isn't it clear that  sherman that the expiration date is the right fight that we use will funds terminate early right under certain situations that's so that's what the contract is so so what are you saying now that the contract construction of the contract because that's what they truly talking about i am talking about it starts with what is now forty nine u s c forty one seven zero seven it says airlines may incorporate by reference  other terms into their ticketing contracts to the extent the secretary of transportation provides and then there's a regulatory scheme that's developed at fourteen c f r two five three point one you know and then there's also some rule making there's a separate issue of whether that regulatory scheme is voluntarily incorporated into the contract or not but our primary carrier voluntary or involuntary how is it incorporated you have a case to these regulations they can be part of the contract or something like that i haven't seen a case like that well there's a kleiner case which is against southwest south in which the sort of the introduction to the contract of claridge says this this contract is subject to the regulations and kleiner found that that thereby incorporated the regulations contractual eyes the regulations and southwest position is that they change their contract of carriage so it doesn't make that mistake now know our primary position is not that the regulations are contractual ised although we do contend that they are our primary position is that the regulations that i've described are not regulations in the sense that if you violate them the regulator comes down on you they are intended to be and therefore our rules of contract instructions that to set the standard altering common law rules is applicable for contract law with respect are what part of the roof there's you have to look at and in and gripping the congress right now there's a couple cases price in iran apply the regulations as they are explanation regarding the expiration date on the ticket it's like on page three or four of the text and there is there is no explanation of the expiration date on the ticket at the very bottom of the ticket there's a statement that says all travel in a  big paragraph it says all travel must be completed by the by the expiration date but it doesn't say that funds are forfeited and elsewhere in the paragraph all travel involving funds from this confirmation number must be completed by the expiration date the new travel funds may only be applied towards a puget purchase of future travel for the individual named on the ticket so that's not that's not a conspicuous written disclosure that you're going to forfeit on you travel funds if you don't use it but if you go to the website regarding use of reusable funds it it also says if you cancel your flight one hundred percent of your ticket now you can be applied to you travel for up to twelve months and then it says on cancellations one hundred percent of the ticket you may be applied to your travel to be come part completed for up to twelve months or buy your ticket expiration date whichever is right and hummingbird again that's they say the first thing without the expiration date clause they stayed in the but the right to use the reusable phones and you have the expiration date on the ticket and then you have i think it's one or two pages here later that explains the plans from the ticket expire on the expiration date so i don't believe what's on the ticket it says the funds expire on the expiration date certainly not in clear and conspicuous language well i don't believe it says that at all what specific provision of the provision i want to know in the contract in the contract of carriage yes i know our position is that the contract they cannot apply this hidden fine print exception in the contract of carriage under  the rules governing construction of such contracts but these regulations aren't aren't written into the contract anywhere so i'm just curious to see if you can point to any actual provision in the contract to support your breach of contract claim my understanding is that this would be your fallback argument that it was contractual line just i do believe it was contractual eyes there is in the contract of carriage itself it says this contract of carriage is subject to the regulations and there's under there's many we believe that that does contractual as the regulations it's and importantly it and and and the regulations the contract the regulations prevail so that that's to me that's very clear incorporation language at least in the event of a conflict  it seems ironic to me that that the application of these regulations which on their face appear to me to be designed to be the rules of construction for the incorporation by reference of terms into a ticketing contract do not themselves apply directly as a matter of law but we do as a secondary position believe that they are contractual ised by the preamble or the statements at the beginning of the contract of carriage please the court rich phillips here on behalf of southwest airlines i want to start i think where the court i think went right off the bat which makes the most sense which is the ticket itself which is the idea that regardless of all the preemption and the private right of action arguments that are out there even if you look only at the documents that the plaintiffs want you to look at for their sort of manufactured reusable funds agreement it's clear on the face of the ticket what the what the contract i think it's interesting that he council would like to avoid this language that says all travel involving funds from this confirmation number must be completed by the expiration date at which the e r sign on that that's fifty one you're on him by saying that it's at the bottom of the ticket and that's like on page three of the second page of the ticket saying things interestingly in their brief on page fourteen they say that an example of conspicuous language is the ten minute rule which is if you don't check in by ten minutes before the flight you lose your ticket well let me add languages right above in the exact same be saying it's conspicuous when you i doubt that he's complaining that this thing shouldn't apply to him and the only reason i point to it is to say they actually say that the ten minute rule is adequately stated there that's in the same font two lines above the language he doesn't like and he thinks that it's confusing i don't know how there's any reasonable way to say you have to use these funds by the expiration date is confusing it's not that's very clear and the expiration date is stated on the ticket and as the court is already observed the same thing appears very clearly and more like more of the documents they rely on where it says up to twelve months and then explains that it has to be used by the expiration date of the ticket or twelve months whichever is first  open to incorporating write the regulations into the contract where yes it is argument it is argument right judge where delia i'm completely rejected that and i think the place to start there is the case he said was his best case for that which is kleiner it is a case involving southwest airlines but the language in kleiner is materially different from the language here he wants to sort of push that to the side incline or the contractual language specifically said that the regulations would be binding on southwest and on the passenger that is not the language we have here that language does not appear here it's been taken out and so kleiner doesn't have any application here i think the cases you ought to look at are the same cases the judge gilliam cited which are the own ok so the mcconnell case apologize and give the other one of my notes but there are three of them that all have rejected i'm sorry mcmullin so we have oh mcmullin pulling off ski all three of those cases looked at contract of carriage that had similar language that said that the contracts were subject to other regulations and the court said no that does not incorporate all of those regulations into the contract and also point the court judge so use opinion in the buck case which we have cited for a number of things but one of the things that judge so you noted in that case is that if we were to and decide that all of these regulations were incorporated by this kind of language then it would incorporate an entire mine run of regulations into parties contracts and then make them and forcible by private right of action which they're not supposed to be able to do  and this is where we play into where preemption and the rack lack of a private right of action play together and that's important they cannot seek to enforce this regulation on us because they're under federal law because there's no private right about action they can't sue claiming that southwest breached these regulations so what they have to do is say that you should through this state law contract claim allow us to make a claim that we can't make under federal law so it's what they're trying to do is use a state law mechanism to get a remedy that's denied to them by federal law because there is no private right of action because here they're there to the plains are seeking in force federally obligation not state imposed obligations that obligation they can't enforce it under federal law because it's not a personal private right of action for so they're trying to take that this is and again i'd point the court to the book case there's a good judge so you does an excellent job of explaining why this theory just doesn't work but what they're trying to do is take a federal regulation for which there is no private right of action so little so there's references to subject to federal regular laws and regulations through out what does that mean it's a savings provision i think is the best way to realign savings provision that to the extent these regulations change at some point for example regulations this is a whole panoply of regulations that apply to airlines the air carrier access act other things that to the extent those regulations change then the airline has to follow those regulations even if their contract is different but they don't say that we're incorporating all these things and promising and sort of agreeing to undertake all of them as a self imposed obligation which gets us to the the woman's case in the other cases from the u s supreme court about preemption that the only things that can be enforced against an airline are self imposed obligations and they're trying to take all these regulations and import them into the contract and that's just not and again the case of cited ono mcmullin pull an aussie all reject the idea that simply saying that these things are subject to these federal regulations somehow incorporates them in and makes them self imposed obligations they're always subject to those provisions the fact that they state it doesn't mean that they're undertaking those obligations and again the buck case very clearly explains why that should not be the result of why the plaintiffs should not be able to use this state law contract claim to get around the fact that there is no private right of action under these regulations and that's a key thing here is it's very clear and there's no dispute among the parties that they don't have the right to come into court and sue on the basis of southwest failed to comply with these regulations what they're trying to do is use those regulations to change the contract and there's a reason that mr friedman cannot point you to the contract section that was breached because it doesn't exist the contract he wants to enforce is one that doesn't exist he keeps talking about the reusable funds agreement it's in all caps in their briefs he talked about it here this morning there's no such document called the reusable funds agreement there's no such agreement there's no such provision of agreement that is simply a at their creation it's a term the plaintiffs created to support this  cherry picking that they've done of some of the parts of the contract of carriage some of the parts of the ticket and other things that they say to cobble together this agreement that they claim says that southwest has promised that you can always use your travel funds for twelve months and then everything else is an exception but i should not have a what language is put together it's not how the contract of carriage is put together and it's not how the ticket is put together i will confess that i'm struggling with this case i do think that  the process of reasoning that we're asked to employ is somewhat convoluted and so it might be helpful to me if we could step back and and take what might be thought of as a a look at the big picture the supreme court tells us like southwest for breach of contract and we're told that a contractual obligation isn't forcible by the court if it was assumed by the carrier voluntarily if it is a self imposed obligation how do you define the phrase self imposed obligation in this context it's something that has to be in the contract of carriage something we've agreed to do in fact one of the cases i think i'd point the court to and that is one that the plaintiffs rely on hickox hofman is a case where they were talking about bag baggage fees and in hickox often the brit airline had said we'll charge of this baggage fee and then they also made a promise to deliver the bag on time right and the court looked at that and said that's a self imposed obligation they didn't have to promise to deliver the bag on time let's suppose in this case the reference to agency telling us that the requirement of clear notice this places ordinary rules of contract construction why shouldn't we find that guidance to be helpful and if the regulations are incorporated into the supreme and find that southwest assumed the obligation to provide clear notice i think i'd start with the fact that if you were going to interpret the statement subject to that broadly then you would have the effect and be the first court i think to do so of incorporating the entire mine run of federal regulations into every contract of carriage isn't there a reasoned argument that we can insist on clearer notice with regard to the forfeit of funds without running the risk that you describe well i think the only way you get there is by saying that we have an buy by saying subject to we have now voluntarily undertaken these regulations if the regulations are incorporated into the contract then we don't get to the second part of the question and the only way to do that is to say that subject to incorporates all of these regulations into the contract and therefore makes all of those regulations subject to a private right of action which i think gets to the other problem and i was going to point the court to the to the book case judge values opinion on this it is a complicated analysis i understand that i understand where you're coming from but he lays it out very clearly that you cannot do what the players want to do here because it is a complete end run around the idea that there is no private right of action for these regulations the second answer that would have for your honor and that is even if you want to do that for the reasons that were talked about at the beginning with mr fragment it's clear here what's going on the documents that the plaintiffs were given have an expiration date right up top expiration date is not an unclear the idea write these funds these tickets have to be used by this date or they expire they go away it's not a forfeiture that's the date and so are you saying that even if the clear warning requirement is part of this agreement clear warning was given yes ok yeah and i think you can get there on that as well just by looking at the documents they attach to their complaint and so if this was just a pure contract dispute not trying to incorporate the braggs saying this was they can't win and there's no breach of this contract in fact they say in their brief that they agree that their terms in the contract of carriage and i point the court this is supplemental e r twenty two has the exact language in it they like part two because of this is c three they like part two because it talks about it being used for up to a year but what they don't like is the first part of it that says unless otherwise stated by the carrier it can be used for two up to twelve months and then part three in part four are the parts they don't like and these are the parts they say are not part of their reusable funds agreement that they've created out of thin air because they specifically say you have until the earlier of the expiration date and it explains how that's calculated that if you use funds with an earlier expiration date that carries over even if we were to read i guess my my question is if you were if we were to read the regulations into the contract which is what they're asking which you say there's really  basis for it because it's the end run about that around the private right of action would we not consult that document right there the carriage i think you would yes i mean i think their complaint is that if you read the regulations in you have to look at the ticket and decide whether that's clear enough that it's you that things are incorporated but i think it's clear that it is as the court's already observes morning on the ticket it says so and the other thing i'd point the court to is the attached to the first complaint was a declaration from m explaining how you have to buy a ticket and he specifically notes that you have to click purchase it says you're doing this subject to the terms and conditions and there's a link right there so again i think even if you if you want to look at what they've attached it's clear but i don't think the court has to get to that point because what they're trying to do is avoid preemption and the private right of action and for something that the supreme court and congress have said they cannot enforce therefore would ask the court to affirm thank you a couple points one the contract of carriage isn't the whole contract it can't be it doesn't have the price it doesn't have the time it doesn't have it's the contract of carriage is a separate document that's over there it's the back page of the terms it's it's the governing document but it's not the terms and it's not the terms of the contract it's not the  primary terms the primary terms are the ticket and the things that southwest tells people before they buy the ticket and then it says which it doesn't even say but ostensibly says and by agreeing to purchase  ticket and agreeing to it in addition to this deal that we've just made i give you money you give me money i'll give you a ticket in addition to this deal you're going to everything in the contract of carriage so the contract of carriage cannot possibly ever under any construction be the entire contract you have to go online to get the contract you have to look at the communications between the parties to establish the essential terms of the contract under southwest construction of this they can put whatever they want in the contract of carriage so they can reverse everything that's on the ticket itself on the agreed terms of the ticket because the ticket itself doesn't matter  and there's always rules about what you can incorporate by reference if you get don't use the rules about incorporation by reference then you have to use common models or state levels and there's the case of vs barnes and noble's which is also about incorporation by reference when you incorporate the terms of can and conditions associated with the website into your agreement with the website that's that's an example of incorporation by referenc but when says is the onus must be on the website owners to put the users on notice of the terms to which they wish to bind consumers and that's where you get back to this to and they put up a big fair charge that says one thing they put a fine tiny footnote on the bottom of the chair chart that limits it materially they put which informs you of an expiration date so you have to find that footnote then you get the ticket the ticket itself does have an expiration date but unless you read that footnote you don't know what that expiration date means nothing on the ticket notifies you of the forfeiture and then you actually so you literally have to read the contract of carriage to put it all together which is obviously impossible and that's why there's this conspicuous notice requirement and you say that whether conspicuous notice was given is a question of fact yes what about the reference to the ten minute rule well it's i'm not arguing for or against the tenant rent mineral that's not our case but it does say if you do not cancel within ten minutes your funds will be forfeited that's an example of at least an attempt to conspicuous notice there's no comparable language with respect to this  location on the size of the font with regard to the ten minute rule doesn't mean i think it does matter but it's it's harder to argue at least there is a full disclosure of a  people on conspicuous notice of the forfeiture whether it's adequate that's not my case but that's an example of something that might be can see a conspicuous written notice of a forfeiture which most definitely is not is not the case here was b hear our problem what about the company's argument that if we were to go along with you we would open the door to all kinds of problems because  the airline would then face litigation based on every regulation under the sun you heard that argument yes i i don't know the idea would be that since they agreed to the geneva convention or something i was one of all of the applicable regulations that somebody a plate of could come and sue them for violating the geneva convention i just don't buy it i think that's what it says in the event of a conflict between you know the contract of carriage and the and and the regulations and it would only be an event of a conflict that would even come up but that's a different case anyway  rest of what we refer to as the mine run of regulations yes because my clients claim there's a in my class claim there's a conflict between the regulations which were exactly on point and all the other regulations and laws in the world so there's this conflict that exists between southwest is saying and its contract of carriage and the regulations themselves those are the only that's the only place where there's a conflict of conflict to resolve through that saving clause thank you thank you thank you both  president mr philips for your or are you presentations here today the case of gene sram and marty fisher versus southwest airlines company is submitted