please the court i'm jeffrey whelan's counsel for the apologists this last two concerns a california law that imposes a very modest and minor obligation on banks that issue convenience checks or balance transfer requires a consideration of the impact or burden on the national bank and awaiting of that to determine if it's significant enough to merit the finding of preemption some laws i deal with he presumably are so oppressive or so interfere to such a great degree with the functioning of a national bank that it's not necessary to have a factual record developed however this is simply not such a law examples of those types of or cases which impose a state regulatory or licensing scheme on a national bank but we don't have anything like that's what we have here is a law that allows the bank to do whatever it wants to do in terms of marketing a particular product as long as it includes essentially the one sentence this blows or which it has not already doing with the marketing material there's no evidence that it would put place test which seems to speak of any limitation on a national bank and truly if that is the law and that is the task then you can't pass any kind of state law that i have that places any limit no matter it's a core function so there's no question about it that we now get past the threshold to the issue but the whole point of the supreme court decisions every one of those cases involved a core function if it were not it would not even be addressed in connection at all significant burden well that it's enough of a significant burden to meet the core issue test clearly this is a consumer protection law and if this consumer protection law that simply requires the national bank to tell the consumer that they will be charged interest from the get go on the use of this check because we're talking about a credit card check everyone knows that credit cards have a grace period in as normal to expect that you don't pay any interest loans you pay your bill every month which could be twenty days thirty days after you used a credit card these convenience checks are different even if you use the check to pay a bill the utility bill to purchase furniture or whatever you're charged interest from the very day you use it or  you is whether you can tell us the difference between the consumer protection concept which you're now a spouse ing and in the end the rules or the national bank act and how california at ten in have a greater role in the consumer protection area than the national bank act would only its face provide a national bank that does not express the prohibit consumer protection laws in the united states supreme court has never held that every is not really a balancing test in the sense of balancing the benefits of the law versus the impact but a test to see if there is a significant impact and if there is a significant impact then it's preempted but we have to look at the law what is it about this law that allows this recorder perhaps you just go on to conclude that inherently this places a burden on the national bank make them do that constitutes a burden they already have to print out a letter explaining the deal everyone gets those letters in the mail all the time what's the big deal about adding a sentence or clarify destructive or misleading business practices were alleging as an alternative theory a liability in the complaint and it was addressed in the summary judgment or a motion to dismiss or were alleging that the practice of telling people that you know you are going to hear is a given is checked here's all the terms and conditions and not telling them that by the way unlike your credit card you're charged with interview charged interest from from the get go that that one if that were necessary but that's not our chosen theory of life really here we can we have a much easier burden on the californias the section playing because it doesn't require individual proof or requirements reliance it says what a reasonable consumer have been deceived by the nature of this disclosure let's say you have to further action for a toy or more off toward the question as i look at the regulation that they really mean it has to be a common law tort of couldn't it be a statutory type of tort even if it's not something that's traditional the stats in many states is a common law version of fraud california it really is and california has a slightly different approach to treating fraud and deception types of claims and the type of deception under the u c l is different than the common law fraud but i don't reliance to be inferred by a standard disclaimer for purposes of class certification so but yes it certainly is and it would be more difficult for us to obtains classification which means it would be more difficult for us to obtain relief for all the people who  affected and that's the reason why we proceeded under the u c l but i don't think that the o c c was trying to define every law that falls under the definition of fraud it would have to list every state's frog elements the requirement for deception there is no requirement of allegation that anyone be actually deceived the requirement for causation and no requirement for a license it also is a difference in remedies that i am not a star on ten b five but i believe it has more traditional elements of tort including a requirement that somebody was deceived there is no requirement under the california unfair competition law that anyone be deceived and that is a crucial difference but the exception that that counsel is seeking to invoke it's not simply enough to attempt to pigeonhole  statute or a plane into one of those categories like tort even a tort plan would not survive the regulation if the burden it imposes is more than incidental and that's in the express underpinning of the national bank act and one of the things that the national bank act has been recognized as being intended to do was to achieve uniformity that a national bank unlike a state tried to get a national bank could do business nationwide under a uniform set of regulations and subject to a uniform enforcement policy this was recognized early on in the east in case of the u s supreme court in the law you're  the east in the court was concerned that that would subject if a bank is subject to was very disclosure requirement it's subject to the laws of every other state and those requirements can be different conflicting and that language in the recent waters decision of the us supreme court in which the court specifically returns to the issue of uniformity in not only slight sneezed and he's favorably but so does achieving uniformity of operation nationwide was a core purpose is makes it clear that those categories of was also represent the o c sees judgment based on its experience as the inspector the regulator the overseer of the bear it's not the same  by congress is in goes back to section ninety three a and it's recognized explicitly in section forty three which recognizes that with proper notice and comment the o c c dam propound regulations that preempt the application of state law in the consumer protection area as applied to national banks the third point i want to make about this future  quote retroactive under the law in fact the laws is that the contract though the law are the least suited soft the underlying suit here was not filed until over a year after the regulation was adopted and the was clear both on the state side and on the federal side that the change in the law for that would affect the claim that  that the time of the decision that controls unless there's a vested right and a pending a pending flame or a future plan is not a vested right california takes the same approach with respect to its laws and that's the significance in part of the fact that the u c l is a statutory an act because under the legislative repeal doctrine under california law one has no vested right in the exercise of the statutory right and so you get a final judgment the legislature or the people by the initiative can change the law and that new law becomes effective because you have no vested right in the application in the future of the existing one so there are three reasons why i think that regulation not only applies to this situation and these claims but it applies in their tot from february of two thousand and four ok thank you i don't really understand what council just said that it sounds to me like he was arguing that there was a change in state law during that before we filed a lawsuit and therefore we didn't have any vested rights so we you know were subject to due to the new law that's not what happened here always been the same the change was in the enactment of a regulation a federal regulation that seeks to preempt the state law supposedly that although it wasn't addressed specifically to this law federal regulations are prospective always