choices that they check off on various forms agencies grand prize for taishan they can choose next day care or they can choose the second day or if they choose next day air or second day air air shipment labels are placed on their packages they receive tracking reports by reporting that their packages are moving by air they are charged for jet fuel for the air service and they are invoiced and pay for air and jet fuel so this is all based on the word basically it appears in these different levels of service if they call them fast faster and fastest or they call them level it's going to has to do with how quickly something he gets there whether it's curing teeth to get there by a certain date and time and all those things so it seems to me that you're really just hanging  the title that they've given to the service and so are i just have a lot of difficulty with so it's more than the title you're out first of all the word error appears repeatedly throughout their advertising right and therefore fastest appeared regularly  times and so on and so forth so is it your position that if you ordered ground service to hawaii you would expect a truck to take your package from here to honolulu and they took you one hundred that you can order ground service to hawaii having flown into this argument from hawaii i would tell you even u p s won't use a truck that's when i went they will give you ground service it's a level of service right but you don't have them if you look at the substitution of service provisions in their contracts which are an cisco in fact does not go by air but the customer doesn't know that and why don't they tell the customer that they do tell the customer that they select they are entitled to select the mode of transportation they do so they they tell the customer they're entitled to select the mode of service and if you look at the substitution of service what they try and argue your honor is that under the motor service service means the next day or service means second day but it doesn't mean air if you look at the substitution of service provision when they are in that provider and that specifically provides that if they decide to move your package by air they don't use the word air but they say if they move it by a service that is not the one you ordered because the one you ordered is not available then in that instance they charge you for the higher level of service and the substitution of service paragraph it is clear as a bell that when they talk about service they don't mean next day or second day but they talk about when they say service is truck ground versus air and if they switch you from truck to air because truck is not available they argue for air we have exactly the reverse situation here they charge us for air and then systematic that systematically switch us to truck there is no option and would your clients feel better if they knew that it was going by air or would your clients feel better if they knew was going by air if they would feel better go or if they didn't get charged double for a bus and that's but that's a different question are any of your clients walking into a u p s facility store whatever it may be using eight hundred number and saying what's the cheapest way i can get this a to b i don't know the answer to that but if that but that seems to me to be crucial if you if you p s is not misrepresenting that u p s is telling you here's a level of service you need their next day absolutely positively we can do that you're ok with th with with you know getting up there on thursday instead of wednesday we can do that will charge a different price for that we're going to get it they're looking at there one way or another you can count on us but the problem we have here is that for four next day within four hundred  fifty miles and second they within one thousand miles it is always goes by truck and if those customers talk to check ground instead of air and nothing else you're ours they would have paid less than half as much as they end up and they would have gotten fewer guarantees about the time and date of delivery so so there are different different guarantee assessed on the time and date of to livery so if there are other pieces of consideration for the higher price  same time that the liberal guarantees of the same they go on the same truck and the only difference is that the person who schwarten off the pick and shot ground pays half as much and sometimes a third as much so that so this whole system could can see but i guess it just it seems to have a lot riding on the mere fact that the word air is in there and they could have the same pricing structure and the same nature of services and you'd be fine with it if it didn't have the word air in it if they just said we have service a service be in service c and here's the pricing and and here is what happens with those services the problem is what they don't tell anybody is that the next day and the second day are going to arrive at exactly the same time whether they go on an airplane or they go on a truck they don't tell any so what that's my point is so what if you if you just take the word air out of it and you go back to having services a b and c if you have no i mean you have the prices and you have the result and within a thousand miles today it goes by truck and this is the charge instead that they say it's going four hundred fifty miles or it's going a thousand miles you want to go by ground or you want to go by air and people who check air and up paying places much so hundreds of thousands of times a day around this country for twenty years people are paying two times what they would pay if they were properly advised that this was the one of the clone of the clients one of the clients here paid something  would even imagine that something's going forty miles or two years judged by example that it would actually go by air that's like me saying i want to get a package from here to downtown las fast possible i may pick the most expensive option but it would never occur to me that even if it's called aran that someone's and i fly up from here in los angeles so i have i have no idea what it will think or understand about  not picking a package up from store one and driving it to my house thirty miles away it's going to a shorting center it's being short and then it's being transported back and i go into a store and they tell me i have a choice  service brown ground is not available they move you to air and they charge you for air and in that context but that contract provision means is that service level the service is either ground or air and the mode that they have the flexibility to choose between what kind of truck service are we going to use our own trucks contract trucks so forth and the same on the air otherwise you cannot harmonize what they say in their mode of service with their their packages an airplane ride even if they were sending them next door but the brand name is not a contractual promise and the relevant contracts give you p s the right to use any mode of transportation to move the packages and make clear that the price including the fuel surcharge is tied to the service not the mode of transportation and it is however confusing to to have ordinary to have at least trademarked descriptions of the names on the service and does have a suggestion the referendum is potentially misleading and it just it's completely irrelevant to the actual outcome of the case but i wondered in the face of all this litigation wa u p s doesn't change the name of these services to you know fast faster fastest or something points about that line or one just as you recognize this is a breach of contract case of the question is not what we've named the service the question is what the contract provides and they point to no breach of the terms of the contract it's not a consumer fraud contract for ground service to where you so it may be today that you can purchase ground the ground level service and send a package from here to hawaii at the time of the relevant suit however you couldn't and so for example if during the relevant time of these you chose ground level service your honor to ship something from here to hawaii that service level would be unavailable for that origin and to destination and therefore under the substitution of service clause that to which council repeatedly refers would substitute the next highest level of service and charge for the next highest level of service and i'd like to point at all since he's focused on it so much it's it's clear on its face an example of it is  are for eighty seven and it's actually the final senate of the mode clause so the full clause reads u b s reserves the right in its sole discretion to use any mode of transportation whatsoever to provide the service selected by the shipper so it's clear that mode and service are different and if there was any doubt confirmed by the next and it was as we guard lists of them boat of transportation used the effective u p s rates for the service selected by the substitute the next higher lael level of available service and will charge the corresponding rate for the substituted service in other words for the high level of service it's hard to see how that language could be any clearer t benefits are part of the service so it's key it's key that they do provide different levels of service there it's a package of services each level differently will provide and the record has many examples of how this is fully laid out to customers and so that they can make choices next day air has a guarantee so different at different times over the course of time but for forty eight forty eight contiguous states delivery at ten thirty am the next day  there are different levels of next day air second day air is to the second day and ground it's key the ground service if you choose the ground level of service it's a variable day delivery service so the information says you know one to five days for example which puts the customer on notice that if i want perhaps a cheaper price one day maybe maybe one day is available on this service but you have to ask so with ground service you have to know where am i where am i now and where are my fifty my package to and over time that's changed how fast we're able to get things to places with various ground service but it's a it's day and date variable so there may be some subset of packages and some things are available on the weekend and some are not assigned or student that's absolutely right on or so next day a second day air or you are available to pick up a horse or deliver on a saturday that that service is not available with the ground level of service so it's true that even if you do next day or second day you have to pay an additional fee to have saturday or pick up or delivery however it's not available at all at any fee to add to the ground service so these are just different suites of services and in flores the point is there took advantage they bought next day air both leave and floors took advantage of things that are only available in next day not available at the ground one of them sent their package on a saturday that would not be available the other sent their package and it was if it was delivered by ten thirty am the next day so all the ground to some distances might get there by the next day and maybe it might be roughly at the same time there's no promise and it's day and date variable and you have to figure it out the key point from from go for these cases and the legal claims they're bringing so his sort of pricing complaint is not is a disconnect with the legal claims or believe as i understand of speech of contract breach of good faith some for doing in rico that's right your honor so and i can just briefly go to the breach of contract claim for foreclosed by the plain languages of the contracts as i've said the contracts clearly tie both the prices to the service levels and then allow you to choose any mode descendant the implied covenant claims fail for the same reasons as the contract claims yet you can't you can't expand the contractual obligations under any of these states lost through the implied covenant and in the supreme court's this ginsburg which is that all of these states have exceptions for their implied covenant including for at will employment at will employment is a policy that all these states presume in contracts that don't have an express at will clause and then they enforce that policy as a false statements here there are no misleading statements here all of this information is fully available in the documentation that u b s makes readily available to customers all the different options different suites of services and your cost conscious customer can choose ground and might get less guarantee with that might have to spend some time figuring out what day or day that might get there depending on to where they're sending and you you have your your more premiums customers who may care more about a guarantee by ten thirty am the next day might want to use the free packaging that we offer that's you know that it's fancier looking and you know looks nice and there could be reasons why customers would choose that but the point is that customers have a choice and all the choices are laid out and there's nothing false or misleading about any of the choices but  jet fuel why is that not misleading with respect to the choice of mode of transportation so there is no jet fuel surcharge the contracts provide for a fuel surcharge and the contracts expressly give you p s the sole discretion to decide what the fuel surcharge will be the contract language so from from january five two thousand and four into january five two thousand and nine which is covered in count five the fuel surcharge in the tariffs in the contracts provided u b s reserves the right to institute a fuel surcharge in on some or all shipments without prior notice this surcharge will be applied to such services so it's clearly linked again to the services and that you can find one example of that at our four eighty nine then it goes on to say oh so  surcharge will be applied to such services and for us for such periods as u p s in its sole discretion may determine necessary the current fuel charge surcharge is described at u p s dot com and then at u b s dot com this may be getting to your honor's question and u b s dot com the few surcharge disclosure at all relevant times of this case has had a heading that says service is affected so it's expressly linked to services not the mode of transportation and then it expressed lee describes the differences the ground fuels are the transportation charges for the following services again linked to the services and then in case there's any doubt it lists the services including u b s next day air early am u p s next day after u b s next day air saver u fully available plaintiffs don't dispute that if this disclosure on the website applies in the contract that they don't really have a claim what they're trying to argue in this court is that those disclosures aren't incorporated and that's wrong for two reasons one their complaint relies on this disclosure in the thirty minute complaint that you are one forty two in paragraph forty nine they say this claim is based on the disclosures the fuel government indexes change to u b s to come to find the current version the current fuel surcharge is described at u p s dot com from january fifth to two thousand and nine your honor this me is also goes to your question to the present and this  language that you read why is that not the service used so that gets to the problem of how they can how u p s can charge the higher jet fuel charge when it has decided to deliver by ground transport and thus normally would be diesel ok so that just to moved thank you judge graber that's that's exactly right and there's a distinction throughout all the materials and that's what they're trying to fuzz up they're trying to to elide service and so they're trying to call with a service you actually die if part of it when a truck was ground that's not right you always get the service that you select unless it isn't physically literally available in the hypothetical to why we were talking about earlier you always get the service level you select with the guarantees the free packaging the saturday we regardless of what mode of transportation u p s may use to get your package from point a to point b and the mode of transportation clause gives you p s the right to use any mode of transportation the fuel service charges then tie it expressly to the service level selected and that your honor that's where i think there's a disconnect between your question and the language here the service level selected by the shipper is u p s next day air regardless of how you p s gets it the has disclosed that if you choose that u b s next day air the fuel surcharge is going to be tied to this government index to jet fuel and so we go our list of what mode of transportation u p s uses to get there it's still tied to that and  there may be other ways you could do it but this way is explained in the contracts and it's very clear and it's not false or misleading thank you counsel mr neo you reserve some revival time  that is what the systems typically are in this day and age and there's nothing wrong with that you pay a different charge and a higher charge for faster service so basically your whole thing has just one what they chose to call it that's what i have differences if they exist at all are trivial the sather they pick up that they point to even if it's not available for ground a cost an extra ten dollars and the is only relevant to people who order the vast majority of people who are buying second day or first day or are getting shot or they pick up and the and the example they've never taken issue with a package going from los angeles to san francisco if i order next day air that goes by truck every time and the delivery time guarantee for that is exactly the same as the delivery time if it goes by ground so we have two classes of people here we have people who are smart enough to figure out that all you need to do is check off the ground if you're going within four hundred  break but we have a clue people who clearly believe that because they truck air and they pay a premium for air and geography point they in fact get into wish for jet fuel not for a fuel star drug they believe that they are getting something different and for that they're paying two to three times as much and if that's not among other things a classic rico scheme to defraud i don't know what is it thank you counsel you've exceeded your time when we understand i think the positions of both parties we appreciate helpful arguments from both counsel and both cases are submitted for