california legislature has not once but twice outlawed false price discounts and you know host versus call same defendant than i do i think we can go past that because it seems to me that  opposition has admitted they and they violate the statute we're just here on what is the available form of restitution correct so let's get there restitution and damages your honor because we do have a measure of damages well i understand but doesn't say here's your restitution what how you determine restitution get it done well i will tell you that this court in poll asking middlemen tells you how to ask a flask is a is a standing is not a wrist case in my book in my book in re tobacco cases too which is after all california's case law in the first place last gay first of all was decided before the backward cases it was our case it was the california cases and here we are and i in my book it's a standing case but let's get back to this why isn't it in rate could tobacco cases to the law should apply it is it is the same law but entirely different facts both pelasgian and tobacco two are relying on the same law i agree with you neither one of them neither one of them changes a lot they're just applying california law to the specific facts of cases very different very straight it says this is the difference between what the plaintiff paid and the value of what the plaintiff received that is the proper measure of restitution right and when you're looking at the value you're looking at the value that a reasonable consumer would have paid at the time had they known the truth that's the economic harm they are trying to ignore that isn't what it says it says difference between what the plane of paid and the value of what the plaintiff received that's and has nothing to do with what they paid other than we got to do what they paid but we are now looking at the value of what they received  time in a truck time i didn't even find any evidence that you put in there about the value of what your client received that california supreme court has never made that statement that you just made this is an appellate decision and it is not it cannot and what you've done is is taken one broad statement from that case and that case the tobacco case itself specifically says that despite a court's broad ruling case only stands it's only as good as the facts before it and the facts in that case were so drastically different from what we have here in that case the plaintiff said we don't have to show a loss we don't have to show any loss we can get restitution soley for a purpose of deterren so you have to compare the value she got what she paid to see if you have a loss or not not under california law and under the kwikset kwikset is the california supreme court and that case specifically says a consumer suffers a loss when ever they spend money that they says that this phrase you want to talk about from if you will pull ascii is a standing issue right in quicksand and now i have to back ok says in front of me and i have the exact language from tobacco cases and they tell me what to apply and so i try to apply it ok caliph the kwikset hayes is broadly a standing case but what element of standing i talking about economic harm monetary loss but then you can have one thing for standing that gets you into court and maybe what you get then is injunctive relief and a different rule for exactly how you calculate the damages once you're in court they don't have to be exactly the same that's that's generally true but the times that it would not be the same is for example if the in order to get restitution you have to show that there is a measurable loss and that money was acquired by the defendant and there has to be a direct causal link so the kwikset cases it talks about there are cases where the defendant just didn't necessarily get money directly from the plaintiff and therefore the plaintiff can't get that in restitution they still have standing but that's not the circumstance we have here here we have a direct loss we have a company that violated not one but two specific california statutes they extracted money people through a fraud but all of that said it seems to me you're making a jury verdict or jury argument i want to talk about the law as it is they did all these bad things you're suggesting they did how do i get around to back to cases to which says what i got to apply here is the difference between what the plane of paid and the value of what the plaintiff received and when you're talking about value i would say i mean the value is what is the value to that plaintiff and i can't argue that your client didn't get any bad you well the value do you argue that your client didn't get any value i would i would have to ask a question when i was going to ask me the question answer right but the value would mean you admitted i mean she admitted that she received some value for the article she purchased she says she's not really dissatisfied with the quality of the dresses she says she's satisfied with the robot i mean she admits she got some value there from i thought you were conceding that you would lose if we say price value differential applies absolutely not your honor because we had evidence of a price value difference where if you have evidence that it's the evidence that everywhere is using the mode though instead of the mean and no no no either one we actually if you use the mean the average and i'm sorry i mean to cut your let me go ahead please explain because i couldn't i don't think you're mean gets you there it does you use the whole life but the whole life doesn't like i don't know how you justify the whole life or the mode when you got to justify at least one of those and i don't know what the justification and let's talk about the whole life because that seems to be the big issue inspan the court said this is a jury determination what the value is of a product right so the jury should decide of the publication of such an advertisement in the locality where the advertisement is published which means at the time not over the whole life of this product which could have been on the rack for ten years in in the normal world yes but not when there's a fraud fraud but this is the provision is about false advertising so that's when there's fraud right but what i'm saying is there every transaction was tainted by fraud our client went in and thought she was buying a forty six dollars robe for twenty three dollars turns out that wasn't forty six dollars they never gave her a forty six dollars she and she said she never would have bought the robe had she known she wasn't getting a discount so she wouldn't pay that twenty three dollars and it turns out more but the question is what value did she get and i think the statute tells us we need to look at least close to the time in w purchased it so maybe you look at the last few months and you average that but the whole life could be a long time it could be but again this is a jury question and there's evidence you have to give consideration to the fraud if everybody who's buying it nobody  bought it the forty six dollars nobody so what is the value you get the twenty you got this continuing fraud throughout the entire lifecycle our client was one of the first people to be for audit to be defrauded she said oh i thought i got a forty six dollars dress a robe i paid twenty three dollars now i see your body is getting this dress or this road for cheaper i was the first one to get ripped off i paid more than them shouldn't be a jury question at least to decide what the actual value of that is and we think that the district court rob the jury  its fact finding role and however the statute do you get to the whole life of the product being a measure of the value at the time of sale well the value is the price that a normal person or a willing buyer and a willing seller would exchange right but that assumes that there's no fraud so if there's a fraud it sort of changes everything all those transactions are tainted by the fraud they're what you can't say those were arm's length transactions they weren't so i don't think th but that's an argument that you can't use the sale price of any of the sales you are using that you're averaging over and over the life time i'm not saying you can't i'm saying you have to consider it all a jury should be able to look at all of this evidence and make it some of the terminations what the value that's why in the the court said the jury can look at all this and decide that one of those is actual value or something else altogether i would want to get your own summary judgment here so even if we go where you want to go your expert as i understood said i'm not express an opinion on the retail value or the actual value so therefore we had no evidence on which you could you could advance this idea even if you get it there you know the evidence is the data itself he's collecting the data and saying if you take the apple but if you just because you have some value that's collected what what gives me the idea i mean what's going to give the jury the idea of what the retail value or the actual value is all these sales for because you've got some value sitting there and they could use it he wanted well it's based on actual transactions i understand what each and every one of which was tainted by this fraud this continuing fraud misrepresentations the jury could that most people paid well how can the money going to i say that what expertise with the jury after that when your expert says he can't even form an opinion as to that he didn't say can't he said he's not offering an opinion because you could you could look at the value in a lot of different ways and he's providing several different ways to the jury could evaluate the value and that's a jury function that's the it's the jury's role to determine the fair market value so you're saying it's within the jur that none of the things were on the rack more than two or three months we do have all the evidence of how long everything the specific products we have evidence of how long they were on the rack yes and every transaction we have all that evidence and that's where he got this data and what's the longest they were on the rack you're on i don't remember that off top of my head i'm sorry it was not yours i can say that in these times do you know where in the record that is i'm not sure if the actual back up it's in our expert's report that i don't know if he actually says how long i don't know if he actually gives that specific answer he has we have the data i'm just not i don't know if the data i'm not sure we have it right and it knows exactly what that's what i'm saying i don't know if he actually said how long each of these like how long the life cycle if you're in a car lying on them for part of your answer or that it wasn't yours it's hard for you to do that without having that data in the also i mean that's the problem with deciding this on summary judgment early in the process when we hadn't completed discovery were very early so when did you say we need more time for this is premature we need more time for more discovery you know because this is you didn't come up it was we were relying on the span case that said based exact same situation this is a jury question of what the value is and the jury should be able to decide from these different things and i would agree if there was no fraud i would say every transaction prior to her her transaction establishes the value  but that's when there's no fraud here we have a fraud in every single transaction not one unit sold at the regular price so everybody who's buying it is thinking they're getting something worth more than they're spending for it and that influences consumer behavior that if you  you know those verses calls case talks all about that false price comparisons matter they influence consumer behavior and they cause a more obvious economic harm than other types of misrepresentations because the lie is about the value of the product itself and it influences good morning your honour's james fire for kohl's in addition to the directly on point so back out to case which we believe bars the so called alternative measures of restitution that through tort action that's a fundamental limiting principle that also bars these so called alternative measures and what challenging wants to achieve here is exactly what the california supreme liability on the one hand and limited relief on the other and that's because the overarching concern that's from korea supply the overarching concern of the legislature was to provide quote a streamlined procedure for the prevention of ongoing or threatened acts of unfair competition and so under the california supreme court jurisprudence injunctive relief is the primary form of u c l relief and they consider monetary relief quote mere ancillary relief that's in kwikset with this means is that the u c l cannot be used quote as an all purpose substitute for torture or contract action that's cortez so what we're really looking here is an equitable remedy right yes your honor and if we have an equitable remedy of course restitution could be that a remedy right restitution is in fact the only monetary remedy under the  what's your best case the tobacco case is too because we've got to read that phrase and back to the way you do to suggest that the price value differential is not tobacco case is to really as i understand it interpret it in right violence right that's correct that's correct so is this a case where there's in effect a wrong with without a remedy so this woman comes in thinking she's getting a great bargain she wouldn't have come in at all sure she buys a robe in a dress that have value and that means that the fact that she got tricked deceived defrauded into the store in the first there's no remedy there absolutely is a remedy your honor if they can prove what the u c l requires which is proving a price value differential if they can prove price differential they can recover this is not a case where  respond to this point that if you have to use the sales of products that were only sold at coles and all of them were falsely labeled we don't really know what the value lies well let me get to that because i don't think that they have proven any price value differential in the case well as i write differential the very phrase is uneasy to me because it seems to me that in right to bear cases would say we're proving what the difference between what the plaintiff paid there may be the price but the value of what the plaintiff received i'm not sure that has anything to do with the prices of the product to be sold in the future or in the present or anything else that that is your eye that is absolutely correct the the price of a product may equal the value of the product but it also may not that's why people talk about i overpaid for that product that's what people say on the other hand i got a great deal for that product so how do you think we should figure out the value here well what what the pla say is that the value of a product is equal to the market price of the product and in order to determine the market price of a product the first thing you have to do is figure out what the market is what the relevant market is and here they put in no evidence as to what the relevant market is what they say is that oh well coal sells exclusive products and the products we bought were were private label coles products and therefore it's appropriate just to look at the prices of the products that coal sells but respectfully that doesn't make sense that's like saying what they're saying is well coles private label products are their own market that's like saying toyota cars are its own market and they don't compete with  holland and and and nissan what you have to do to figure out what the market prices you have to define the market and then you have to see what other products are comparable products of like great and quality compete and there is no evidence in the record and is that how you responded to them in the district court that they were defining the market how we responded to them in the district court was that we said that to figure out the market price you have to figure out the prices of comparable goods in the market over whether you should also be looking at sears products or something well there wasn't a battle of experts because we had the only expert evidence on that testimony your honor and we referred to that expert testimony in our briefs and and our expert an economist named dan garrett said said very clearly that one cannot analyze what the market price for a product is only by using data for a single brand of a product and that's that supplemental excerpt of record one seventy five so we had an expert and saying look you can't just look at the prices that coal sells that you have to look at comparable prices and they've made no effort to do that and that's on top of the fact that as judge smith pointed out their own expert said i'm not offering any opinion on retail value and if their own expert is unwilling to do that it doesn't really make sense that this should be an argument that goes to the finder of fact which by the way in this case would not be a jury of course because it's a u c l case it would be the court itself and as i understand it to take up these other issues the reason we don't go for full refund is because the plaintiffs have already suggested that they have value in these products so you can't go for a full refund because the full refund would only be available when the plaintiff prove the product had no value right absolutely right and if you go to  the reason that you would win on disgorgement as i understand it just trying to be fair they want to have your market your profit as the end board as the disgorgement and in terms of profits and in terms of full refund i don't think they have a viable legal argument and the only reason they don't have an argument as a relates to transaction percentage or actual discount is because it's outside of equity i think that's correct your honor the way i would the way i would phrase it is what they're asking for is the the amount of the quote promised discount yes what challenging says is that we should get quote the discount coles promised all right and then they also say it's imperative to focus on the discount that challenging thought she was receiving and i have a case it would not be an equitable remedy but instead a legal remedy because you're giving expectation damages exactly right as judge klausner recognized what they're asking for doesn't describe restitution because it's not restoring any money that was taken from the plaintive what they're asking for is i didn't get what i expected to get and as you point out just myth that is a benefit of the bargain remedy that's not even available in tort it is only available  contract and as we've seen the u c l is not an all purpose substitute for a tort or contract action so we're down to trying to determine once again what this language means difference between what the plaintiff paid and the value of what the plaintiff received and that is the proper measure of restitution that's really what we're about in this case i think that's right your honor and and what what what shouting says is that well the value i received is erode because i wouldn't have bought the product at all if i had known about these misrepresentations but that's not how value is measured under the u c l and the plaintiff the plaintiff herself admits that because she's admitted in your brief that the value should equal the market price that's not a subjective measure of well i wouldn't have paid for it so if the value to me is zero that's the market price and also in pl ascii we have the courts saying that you have to look at what a reasonable consumer would pay all right that's not zero you have to look at the value of the product itself not whether she would have bought the product or not because what that does is confuses standing with restitution and as judge friedman pointed out the standards are different you can have a loss for purposes of standing simply because you wouldn't have bought the product if it were not for the misrepresentation but for restitution that's not the standard as the tobacco to court said for restitution the loss required is not simply well i wouldn't bought the product but for the misrepresentation the loss required has to be that you paid more for the product than what you received in return i'm still kind of confused about how you think we should evaluate what you received in return because it seems like you said you don't think it's necessarily the sale price that's right i think you have to look at i think you have to evaluate what the market price is so you would look at like all road was sold or all terrycloth robes or whatever this is that's an area it doesn't seem like the district court appointed to the market in the district court i don't see anything about the district court crediting your experts definition of market over there you're absolutely right just feeling the district court did did not get into this issue because we to rule for you need to make a determination about what the proper market is and address an issue that is recorded i don't think so i think you can go on the fact that their expert it knitted that he didn't have any opinion on the value of the product i think that alone gets you to where you need to be and also you have to judge clowes ners analysis which coincides with your analysis just friedland that you can't measure the product by the lifecycle of the product you measure the product by the prior ninety days and if you measure the product by the prior ninety days there is no price value differential even if you're just looking at the coles prices and that fact is different i don't think so your honor because i think it's a reasonable consumer standard i think that's the only way it makes sense to go because otherwise it would be completely varying from person to person as to as to what the value is and i think the case to say that that what we're talking about is market value and what a reasonable consumer would have paid unless your honour's have any other questions i think i'm done all right thank you thank you monetary loss an economic injury when they buy something based on a fraud that they wouldn't have bought otherwise all in all a temp to give standing not a written and directed interest the issue in front of us and with respect your honor i would ask the court to read the police polanski case again because i do believe it's a restitution case it's talking about what damages are available in the class certification context even if i redid now we've got a new case right out of california in raid anything else i would just say we talk about an equitable remedy culls promised to give her a seventy dollars dress it's never done that she's still waiting for that seventy dollars dress that calls promised to give her a forty six dollars it's never done that where's the equity here ok thank you thank you ace sixteen five six two seven two you submitted we will move now to case sixteen five six three o seven romero vs provide commerce