good morning your honour's may please the court i'll take give you a couple minutes for the court room to clear thank you in the meantime your honor i didn't have a small visual aid would it be possible for me to hand it up to the court have you given a copy to your and i guess we're finding out  file a refund claim on behalf of the customers so if they're admitting twice and that's on page one thousand one hundred and twenty five dollars of their brief that they do have the option to file a refund claim for the purpose of preventing unjust option that would apply in the case of a company that an accidentally charges sales tax on something that should have been charged but in the customers complain or somebody notices or goodness of their own heart they say oh my goodness we've been doing the wrong thing and they then go to the state and say we actually overpaid you we sent you the state sales tax which we collected from customers and we shouldn't have you are not entitled to that money  would preclude that nothing says they st of all nothing says they have to do that's correct and that's why we're trying to assert a private right of vaccine under the statute in this particular instance because what we do allege is unjust enrichment we have alleged that they're not being made whole and we actually allege conduct that's consistent with what new york state considers to be tax fraud or tax evasion we think in this instance it's in the a stronger case than the case where there is an option that that they should be forced to primary vehicle for obtaining refunds on behalf of customers that the claim is supposed to be not by the customer but by the vendor who collects the tax the tax collector it's clearly for the it was amended of action in this instance where what cosco has done has taken money from the customers to pay its own tax liability they mirror each other cosco is the tax collector is obligated to pay all the tax that it  not just the tax it collects but the tax that it owes it didn't do it here so they've short circuited it you know it did pay a new york state correct and everything that new york state was entitle to and that's a problem because new york state has no incentive to really actively participate in this as we pointed out what would happen is is that we would assuming we have the records in the new york state regulations don't require us to file returns or keep any of those records as opposed to cosco who has all the records for everybody we would go individually new york state would have to give us back money that wasn't really paid on our behalf and then they would have to go after cos it would be it would it would be i think it would be absurd to impose that kind of intent on the legislature in this situation in the at as opposed to allowing us to go forward and by the way we could join the tax department in this they're allowed to join the tax department under one thousand one hundred and thirty three dollars we should be able to do the same thing there are cases that support that so that our claim is really against cosco in this case it's not against the statement you pointed out the state doesn't have our money dollar of the claims that one of the claims that you have put in your complaint is an unjust enrichment claim that's correct which is precisely what this statute is intended to prevent but we don't so i guess we can maybe set to one side the technical question of implied cause of action under this statute where it seems to me you've got some extra burdens what you're really saying is this is unjust and unjust enrichment applies t and then the only question you have to answer which is still maybe a very substantial on is why doesn't the exclusive remedy provision for close a common law cause of action for unjust enrichment i should st point out exclusive remedies in terms of the other eleven thousand one hundred and forty is a get it involves cases against the state the money hadn't received involves a claim against the state for these refunds under assuming that a refund return  assuming that a return has been filed the tax has been determined and that the and that the refund application has been filed so we think that cases like childers where where what you've got is you've got a situation that doesn't involve a standard filing of tax returns and a standard request for refunds and the court there the district court allowed an unjust enrichment claim to come through because in that situation it was really the tax collector who injured the customers on its own behalf it benefited from injuring the customers it's the same thing here is there no valid purpose of the statute in the free lancing decisions like well how is this tax incidence supposed to fall and things like that when you've got an expert commission that can do it two responses your honor st of all there is nothing in any of the case law of address is this and we've asked alternatively that it be certified to the new york court of appeals because we think that they could have the last say in this particular situation but the other thing is that what's happened here is the cosco is circumvented what have happened is cosco should have paid the money that it owed under the statute and gone to the state said ok we want to refund for this money because we don't know and it's with the coupon regulations don't apply to our practices we say they do we say that they that we are not one i will frankly they probably should have remitted both their liability in the money they collected from us then the state would have more than they're entitled to when any of that i mean if they if they take the position that they're in compliance with the state sales tax regulation because of the way their work or don't work they take that position therefore they collect the tax from you they pass it on to the state they think that's the right thing what maybe they're wrong in that i understand that but again you're saying well the right thing for them to do is to or pay the state and pay both things and then a coupon regulation that requires it to either disclose or bear a liability is not applicable to it and i should point out i did cosco knows how to request this kind of advice they requested advice on whether twelve frozen chicken sandwiches are subject to sales tax they requested advice on whether stamps are subject to sales tax they requested advice on whether or not their membership fees are subject to sale why is this different than what any business person does all the time sometimes your lawyers tell you it is a little uncertain maybe you better ask if you if there is a mechanism to get the guidance of the master of agency and sometimes you or your lawyers think we're right so we don't have to do that and they go ahead and do it now maybe they turn out wrong and we think that this is really the only remedial remedial mechanism that there is particularly if they were if if their position is look we made this determination and we don't want to go we don't want to find out what the  well it depends on whether or not you take the position that or whether you whether you take the position that one hundred and thirteen thousand nine hundred and eighty two is strictly up to the whims of cosco that's why you need the said look if you've got a situation where that where the tax collector is knowingly collecting more than the applicable tax rate or you've got a situation where it turns out that he hasn't remitted the money to the state and that's what we've got here because we're saying it's in their pockets in that situation maybe a claim under three hundred and forty nine dollars would apply maybe a claim for unjust enrichment would apply because it's a different kind of situation there is deceptive contact conduct that is over and above the ministerial collection of the tax where there is no dispute and because you're asking me about what the wire is did i just want to point out what's happened here since we commenced our action we commenced  action and we pointed out that their catalogs contain certain references to coupons so they eliminated it we pointed out that their standard receipts contained specific references twice to coupons so they eliminated we point i doubt that the kids for ten years made references to coupon much monthly coupon mailers so in response to all of this they've eliminated it and they've tried to take the position that they aren't coupons at all post hoc they are just basically gaslighting the world in connection the world knows that what they do is use coupons for discounts if you look on the web if you look at me where everybody calls cost those practices coupon practices but they're they're trying to come up with a post  rationalization why they wouldn't be liable under that statute i think that's deceptive too but clearly there's an unjust enrichment as well here do you want to take your rebuttal time now or would you like to reserve i'd like to reserve if i could elster it seems to me to be the classic case that all of these mechanisms were aimed at which is dunkin donuts was charging sales tax on packaged coffee right the ground beans which is really a grocery item and it shouldn't have been charged and they maybe thought that that was like the coffee cup that they hand somebody which is prepared food and that's different they got it wrong the collected tax that wasn't really do they gave it to new york state and now the question is what's the mechanism by which the consumers ideally through dunkin donuts are going to get a refund of money that went to new york state that wasn't supposed to go here the argument that mr weinstein is making is a little different he's saying that the tax should have never been collected because it should have the incidence should of all and on cost go so new york state now is in a position where they didn't get anything they aren't entitle to he's saying this was a fraud by which and this is just an allegation by which cost go collected tax that it should have paid to new york state from the consumer new york state is not ahead of the game new york state doesn't owe anybody anything is that the kind of situation that  merchant deliberately just collect sales tax on every grocery item in the day and passes on to new york state only the money that new york city's entitle to on the taxable items and pockets all the rest still the remedy for the consumer is to go to the state tax commission and say they collected money that they never gave to you but they collected it from me and new york state has to give it something back if the collection of taxes different than the sales tax then that might be a different question but there is no question here that the collection of the tax we can say whether is characterized because it's a it was an undisclosed coupon or an instant rebate by the way your honor if i could just get the whole gaslighting issue at the stores it says instant rebate there's no question that an instant rebate under new york law is suddenly we're we're here in front of a federal federal court well i mean the language is pretty explicit but the rationale would seem also pretty obvious right the goal is that if folks like cosco are doing this then the folks who paid the tax bring a judicial action and most importantly you can't bring a class action and you can who's saying if you have to out is if we were all public spirited and we wanted to go to the new york state tax commission and say this weird stuff is going on it cost go pay attention you guys figure out if we're right that this is really a big tax fraud and then go do your thing we wouldn't have this lawsuit but what we are doing with claims doing is saying we want to be private attorneys general bring this lawsuit on our own on behalf of the whole class not just more to people who want to bring this to the attention of the state and that's that's really the kind of thing that's that's happening weinstein why don't you pick up right there with davidson if you don't mind yes i'd love to in davidson what was going on was that the tax payer was challenging the collection by the tax collector of attacks that davidson alleged was was illegal at the state level that it was saying that this isn't a legal tax it shouldn't be collected at all here we're trying to enforce the statute it's a completely different situation we're trying to enforce the statute in the regulations in a situation where there really isn't a ministerial function that's being something that still has to be brought through the administrators i'm sorry i if there is to the extent i'm sorry not if but to the extent there is that language it is a different situation because there is no unjust enrichment in that situation where the tax collector merely behaves mysteriously and passes the money along if i could to several other things not by a class action you said judge lynch i do want to point out that in the new cingular case it wasn't class under the contrary it was a completely acceptable vehicle one more point about that please don't assume that if you report something to the state that they're going to do something and certainly not in an instance where they've got all their money they have no incentive to go after it finally my final point thirty three no taxpayer no consumer taxpayer is required to file a return no consumer taxpayer is required to keep the records that my colleague says would be the basis for a refund claim under one thousand one hundred and thirty nine dollars it there is nothing that requires a consumer to keep the documentation that would be required for the refund claim so you basically placing a burden on the consumer to file a refund claim where the state's laws don't require it to keep the information to support the refund claim as can proceed with the refund claim that we are trying to pursue on a private right basis and last and i appreciate the court to the extent that this is a completely different a penalty that this is this is the autumn and i'm sorry to the extent that this really does present an entirely different situation in terms of equity use and everything else and to the extent that the private right of action would be consistent under the statute with the entire statutory scheme including under one thousand one hundred and forty dollars which allows it to go forward if the court is