good morning i'm a please support james shaw on behalf the opponent video one repair the president with me today is mr sherman or the owner of video one repair if i may i would request three minutes f of the case before the court today primarily focuses on the interpretation of a provision of the song beverly act now that pertains to certain electronics in appliance products and specifically a provision that obligates manufacturers to make available to service and repair facilities sufficient service literature and functional parts to affect repairs for seven years the district court found that in this case canon was not obligated to supply service literature and functional parts to video one because video one was not an authorized or affiliated service and repair center is our initial contention that that finding in the insertion of authorized and or affiliated into that particular statute violates the plain language plain meaning of statutory construction we do not believe that it is unambiguous video one as is alleged in the complaint is a duly licensed service and repair facility by the california bureau of like tronics and appliance repair now having said that if the court is to conclude that there is ambiguity well it's not just i mean you're right if you just looked at those four words and what is it seven hundred ninety three point zero three b maybe you come to that conclusion but this one statute  obviously part of a larger and ackman and so then we go to the other provisions which i have tried to spread out before because i know you're going to walk us through this your absolute it seems to me crystal clear that the statute wasn't trying to do what you're claiming it does which is  to take sides on who is supposed to be providing the service and repair service you know to their customers it's more just trying to ensure that somebody out there is going to be able to fix this thing if be there and you need you the manufacturer need to make sure that they have the appropriate parts whether it's a authorize you know company owned or an authorized independent or a truly independent service repair facility will care just as long as there's somebody there that's how i read this you tell me why when we look at all this that's not the right sure absolutely ira and i think by way of context it's important to note that the pleading asserts that as a matter of practice and policy canon has decided that it's going to utilize largely its single repair factory that's in irvine california and used this provision in the district court's interpretation of it to basically perform these repairs on its own without making call the seven year provision versus the express warranty provision which is the one seven nine three point zero three zero one seven one three point two a three now that requires a similarly manufacturers to make period the repairs are going to be covered under warranty free of charge that a consumer would take into space going to an authorized dealer where they would be covered free of charge or to the manufacturer in this case where canon is the only game in town it also makes sense than that in the contest a provision that the legislature would have made that broader because seven years is going to far exceed most warranties on consumer products in this case it was a year in office a year where you're going to have to go out of pocket so matters of cost convenient convenience accessibility or going to squarely come into play and so that's why the legislature made a broader reference in the contested statute i think another thing that is important to know your honour's is that from a statutory statutory construction standpoint section seven hundred ninety three point three c is is really telling and that's part of the remedial provision if there is nonconforming goods so what did the legislature say legislature said if you're having trouble getting the manufacturer to act in accordance with its obligations you have nonconforming goods what consumer are some of your options well one of the options is to go to an independent repair and service a service and repair facility have the work done and then have the manufacturer cover the cost so how could it be that one of the remedies under the statute is to go to a video one if it just record is correct in its interpretation that video one isn't entitle to the service literature or the parts to perform the repair i guess i just don't i don't agree with that if you look at i guess it's seventeen ninety three point two that's the provision that says if you are a manufacturer and you you know offer goods you must maintain either company owned or authorized right and that's that's the requirement that's imposed at least for the express warranty i guess i then look at seven hundred ninety three point three not quite sure why it's there but it says if for some reason you don't do what we told you to do in this other statute and you don't make available either company owned or authorized then authorized service for repair facilities then this is these are the options that are available i guess it's just kind of a backstop measure because  behind the catcher right i mean it goes straight to that straight to the fan sitting behind it if i guess what you're saying if that's all this statute is doing i don't see how it helps your position here well i think that if a there's a remedy this provided that by the inter petition of the contested section wouldn't be available then it renders the grammar the pointless or useless and i think that that's contrary to the statutory interpretation let me also point out when it comes to your honor concerns about the intent in in the legislative record there is a reference in this it appears on page sixty two of the record to the fact that the california legislature was following the lead of the state of indiana so right it says recently enacted a similar seven year parts and service availability provision but so look at i think you're the one who cited this indiana for vision if i'm remembering right from the breeze and i ended up looking at it it was a twenty six dash to test extents to three that's right ok i thought this doomed your argument frankly if you're saying that the california statute is modeled on this one because this one i mean the key word is or right i mean just tell me why you think this provision supports your reading of the california statute when they used when the indiana legislature used the word or because because this is the indiana statute contemplate that the provision of the parts and service literature to independent services does not require the manufacturer to do that it says the manufacturer must make available to service representatives which i think in context here means either the company owned or the authorized or independent service facilities like your client is saying that's we're going to leave that option to the manufacturer you must do you want to the other but you're not required to make them available to the in the truly independent just and again i that's why i say that the context of this whole statute is the legislature is being agnostic as to who the identity of the party that's going to provide the services so long as the manufacturer ensures that somebody is there to fix the  would permit as cannon as alleged to just to have the singular can only repair facility now the sponsors of the bill thank you again which i think speaks to the intent of the legislature at the time can you just kind of dodging my question to you about the indianised that you're you are you conceding that i'm my reading of this is right that it dooms your argument and you just want to move on to something else or are you do you have some explanation for the use of the word whether i think that have their own people do it and that seems to me permitted under the an indiana statute you're saying the california statutes modeled on it so aren't isn't that the end of your well what we're saying is that by their use service and repair facility that that encompassed under the california statute the provision to the independent service and repair that it's subsumed within the statutory language of of california by being broader so you're saying that it's broader than the indiana steps yes but that the indiana statute speaks to the notion that included within efficient for businesses to provide service separately from the parks and i have a couple points on that i think first and foremost we allege that video one was in fact doing that since one thousand nine hundred four this was brought as a class action  situated like businesses that are in the same shoes and i also know that i believe that the s b a provision of issue song provision issue contemplates separate markets for parts and service and consumer markets yes it's my understanding so what that what the court but what the court did in distinguishing correct is he focused on the expense aspect and specifically he said in this district court said in this case you original product is small increasingly cheap and readily disposable when it turns out that one cell phone takes better video and first and foremost we have allegations that many of these cameras are several thousand dollars including more than five thousand dollars so respectfully submit that there is no basis in the record for the finding that the pricing of a copier in the kodak case is somehow materially different from the pricing of certain of these cameras and we certainly would suggest that canon would not use that term as a marketing slogan for the camcorders because that's not an accurate reflection of how the market views camcorders from from either a pricing or disposable these are primarily consumer based camcorders but even though certain of them are marketed as professional the warranty excludes professional so we are focused on that in the consumer realm rather than  time with regard to the cartwright claim and i don't want to repeat the statutory analysis that judge walk for it just went through because that's exactly what i was planning to review in my argument i would just like to put a little bit of a an agenda onto that analysis by indicating that there are certain rules of sacha torrie construction which i know that the court is very familiar with but those rules of statutory construction have not been followed by the opponent the key one is set forth in the ninth circuit case of boise cascade versus united states at nine forty two fed second fourteen twenty seven and what the court held there is that the court is required to quote interpret statutes as a whole giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent meaningless superfluous and the companion to that is the united states supreme court's enunciation of the rule that identical words and phrases within the same statute should normally be given the same meaning so i completely agree that you cannot pluck this one provision that is contested out of a statute which is admittedly very dense and very complicated and  been amended to boot and say you just look at the plain meaning of the provision service and repair facilities that is not permissible what you need to do is look at two things the other provisions that surround and how that term is used in those other provisions and you have to look at what the purpose and intent of the statute was is there no significance at all that section one seven one three zero three imposes where you see this term imposes requirements requirements outside of express warranties vs the where it's referred to elsewhere not at all your honor and i recognize that a statutory analysis is difficult to communicate when you're dealing with multiple provisions in the context of an appellate argument so i am going to try to do this in a very few minutes but i think i can show you that the seventeen ninety three point zero three b is completely consistent with the provision that counsel is placing most of its emphasis on which is seven hundred ninety two and showing you why the legislature thought it was being crystal clear and in that regard i will say judge watford if it w crystal clear could have defined the term yes and it did not it could have done better ok and it seems like it would benefit consumers to allow any and all independent shops to acquire the parts and manuals needed to repair the equipment which this is a consumer statute so why don't we go with that meaning instead ok i think there are a couple of questions there so let me start with the latter one and then i'm going to go back to the undefined concept there is not one sentence in the legislative history not one word in the legislative history that indicates that the purpose of this statute was to foster a competitive environment for the service and repair of camcorders as just watch as  saying a moment ago that he believes the legislature was being agnostic that's exactly right the penultimate finding of the district court was that so long as consumers have a place to go to have their goods repaired the manufacturer has met its legal obligation and song beverly has achieved its objective there is not a single allegation in the complaint with regard to the pricing of service and repair and repair parts there is no basis in this record to conclude that consumers would be better off if people who are not authorized have unlimited access to parts but let me give you the flip side of what would happen if someone like mr barr were deemed to be eligible to purchase parts what we would have is essentially a holding that every manufacturer of every air conditioner television set refrigerator camera what have you within the state of california would have to essentially become a de facto party to a requirements contract with every single person who decides to hold down a shingle that they are a repair person for consumer products so my colleague sitting at counsel table mr schmidt if he decided that he wanted to go into a second career could notify canon that i would like to start a service in your products no i am not trained no i didn't receive any kind of training from you or any other  independent source but i think i can do it so i want you to sell me parts and canon would have no choice but to sell whatever parts at whatever time it was required it was asked to do that so what happens the the independent without the training starts repairing products and the manufacturer no longer has an ability to budget no longer has an ability to assure that the service is going to be competent it loses the possibility of i'm sorry it incurs the probability of losing goodwill in the event that the product is not properly repaired and i'll go one step further what's to stop the independent from profiteering on the use of those parts when they become in short supply and starts to sell them on e bay which happens your honor so what the court held below is that this would not what what is being sought he would not promote a good thing for consumers it would actually impose obligations on a manufacturer which would disrupt the orderly provision of service i'd like to i want to make sure you devote enough time to get to the tying claim and i have some questions regarding that and i guess maybe i'll just ask you why why aren't the factual the problem with the complaint is there are no substantive facts whatsoever with regard to the definition of markets let's talk about because one allegation here it says camcorder customers used to be able to and did purchase camcorders parts directly from canon to install themselves without having to purchase services from canon or other service and repair facilities i mean why doesn't  possibly allege that there are separate markets for for parts and service because the statute requires and as the district court found  and this is comes right out of the kodak years for service and parts to be considered two distinct markets there must be sufficient consumer demand so that it is a fish and for a firm to provide service separately from parts here there is not a word in this complaint with regard to whether it would be efficient for canon to maintain two separate markets for on the one hand service of camcorders and on the other hand spare parts not a word the court even goes on to say i'm so sick deficient yes and what the court goes on to say is and this is a quote from judge faeces opinion mr barr has not addressed this issue at all he entirely failed to allege that canon could provide services and parts separately and economically and has not even said how much replacement parts or repairs cost he has therefore not pled the existence of two distinct markets and of course in order to have a time claim you have to plead two distinct markets what's also very telling your honor is that there is not a word in this complaint that anybody other than mr barr has been impacted by what's alleged basically what we have here is a claim by mr barr that he was unable to purchase three parts for three camcorders that's it there is not the identification of a single other independent service and repair facility throughout the state of california that has  any difficulty accessing parts in order to service camcorders i guess those folks are one of the allegations because it seems like it it's plausible that someone who buys a five thousand dollars camera would feel locked in to that purchase and so doesn't that support here's one of the problems with being confined to the record my recollection is that the allegation is that the camcorder market for canon range is somewhere from two hundred to two thousand but it's almost irrelevant because what you heard counsel say a moment ago is that his claim is devoted to consumers that he made and he emphasized the point that these are consumer markets and the fact is that almost all of the consumer models are in the range of about two hundred dollars what the court was trying to say below is that unlike kodak and you can where you're dealing with very expensive business equipment that runs into the tens of thousands of dollars that you are unable to simply switch to another product if you don't like the cost of the service that you have now they've locked in to hear what the judge was saying and perhaps in hyperbole but perhaps not is that if you don't like the cost of cannon's charges for repair and service of a camcorder just reach into your pocket and use your cell phone because it has the same capability and if you don't like to do that how about your digital camera that you can buy for eighty bucks that has a a camp order video capability as well so it is impossible to sho a a switching argument into the facts that have been played in this case it's you from your brief that you're arguing that the bar's allegations were state only legal conclusions and so i'm just looking at that i was just trying to figure out how the allegation that the customers used to purchase part separate from service is mer merely a legal conclusion it seems like it could support so i don't even know what that means that's the problem they say customers as couched in your question your honor used to be able to buy parts caton doesn't sell parts to end user customers so i think what he's saying is that he mr barr used to be able to buy parts from cannes and then ran into a problem in getting all of his parts requirements filled because during a period as the record shows of short supply there were three parts for three camcorders in a multi unit line that were not available to him that's the that's the limitation of what they played factually what he needed to play for plausible timing would seem this you're saying deficient efficient aspect of it is are i only part he would have to show well there are a number of things he would have to show but let's start with this he would have to show that canon would be able to officially sell separately spare parts and service in an economical way that would be accepted by consumers in such a way that they wouldn't bolt for other products that didn't have exorbitant service and repair and parts charges they would have to show what the pricing is in this in these two markets they would have to show what mr barr currently charges to repair a camcorder inclusive of the cost of the part that he has to buy from canon or some other manufacturer and he would have to compare that to the cost that is charging for repair and presumably compare it compare those two in a way that shows that these really are existing markets that can  be tied together and he has not even gotten to first base you know this and i trust claim procedurally your honor was added after the court had dismissed the song beverly claim that's what this case is about this was a hail mary occasionally one in dozens i hail mary pass will be completed this hail mary doesn't get off the ground because there are simply  no factual allegations what they did is they found the kodak case and they said oh this looks good for us let's lead the kodak thank you thank you very much ron thank you all just a dresser a couple of three points with respect to the kind of the parade of horribles about what would happen if canon all the sudden had to supply licensed independent service and repair facilities with literature and parts well we don't have to speculate as to whether or not that's accurate this is been going on for years and years in fact they complain alleges that outfits like the appellants have in fact been receiving in purchasing service literature and functional parts from canon for many years and if this was a recent policy change so the notion to your honor's point earlier that somehow a the only go to place for repair services both during the warranty period and for the seven years from the data manufacture is respectfully an authentic call to the whole concept of the song beverly add in the consumer protections that it is intended to provide so we don't again we don't speculate as to whether there's a parade of horribles the horrible the parade of that parade ins with and i compared of conduct and there being no conduit or outlet for consumers to go to other than a manufacturer i frankly didn't put much weight on counsel's argument on that point because it seems to me from a policy standpoint whether your position is better or not is that's not for us to decide we're not sitting here as a legislature and frankly i  admire you for bringing the case i think i understand the principle that you're trying to vindicate here and it might well for all we know be good for consumers as a whole but i just come back to the statute that's before us right that's what we're trying to construe and as i said at the outset it seems to me the legislature had something different in mind from the creation of this independent competitive market between the companies supply owned or authorized facilities and folks like you're your client that's that's for the legislature decide maybe you should be the california legislature to amend the song beverly act again to to make clear if that's what they want to do to you know and respect in the way that you've argued for and i certainly respect you're on this because i just think that they're the you know where the legislature uses different terminology in similar provisions the inference is the assumption is that there's a reason for that that there's a different meaning and so i just think that there there has to be based on legislative history based on the intent of the s p there has to be a reason why they used to authorize when it comes to express warranty and didn't use authorize when it comes to a seven year provision and i think that the common sense explanation for that with respect to what it means for consumers provides a very recent basis for concluding that that's what the legislators and that was my pretty much appreciate the panel's time thank you very