what we're requesting is that was saw no gross first and with your twenty minutes total you know although i can't tell you you know how to or you listen outside ok all right since i don't know but that what i might suggest is if you use ten minutes talking on your part of the appeal and then after eighty and he speaks that when you come back whatever time you have left you're go i i guess from the standpoint that how do you want to do your time you're going to have the last word because they're going to do i know this is don't do their appeal and then when they come back down and then after you've spoken and they're going to come back and they'll do response to the cross appeal plus their rebuttals so you'll have to the last the last word will be yours spent the last word that you're speaking on is going to be on your rebutt many times laughed all right that's that if you have twenty minutes total so you decide if you would you like me to alert you when it's ten minutes if you're starting to go past that i would appreciate that i think you and i like to start today by discussing the primary point our appeal which is why the district court erred in our view in failing to certify a nationwide class on the f c a claim and the clerics right judgment act claim and here is why with all due respect  to the district court that we believe the district for it was wrong on both counts first of all in the eighteen c corporation versus the court elaine decision the ninth circuit as this court is aware held that  law and that that should have resolved the issue as to whether or not an f c c claim can be subject to arbitration obviously that did not satisfy the district court below the district court rely on a couple of other district court decision one out of the district court in florida which is the pember of the case the other case being the us telephone billing practices case of the district court of kansas in fact both of those cases are quite distinguishable from the circumstances accepted or left out of the process and the court cited to the mitsubishi motors case a us supreme court case but really there are three there's a trilogy of supreme court cases that deal with this issue one is the mitsubishi motors case another the greentree versus randolph case and the third is the gilmer versus interstate johnson case and those three cases if threads together say the intention to events or preclude a waiver of a judicial remedy may be events by the text of the statute the legislative history morning haring conflicts between arbitration and the statute underlying purpose i believe we have all three here have already dress federal law to guide long distance carriers supervised services throughout the country this explains why congress is limited to the farms in which in s c a claim can be brought to the f c c and the district courts because only then can you have uniformity in law if you open it up to the state courts or the tribal courts or any other form and you lose uniformity the rest conflicting decisions in various states across the country that can never be reconciled because as we know there are no all states court in this country for reconciling different state court decisions the same is true with respect to arbitration but it's even worse we have people who are not judges sometimes not even well there was a motion to compel arbitration at the outset of the case and that's what your honour's referring to what was the result of that well the result was that initially the district court compelled arbitration we ray then entertain our motion to vacate his previous order compelling arbitration and he in fact vacated that order compelling arbitration there after the defendants took an appeal of the arbitration rulings the average duration ruling was brief it was argued it was pending for over a year i believe it was finally dismissed by the defendants so that's the other context in which the arbitration issue was well i was saying that the same flies with respect to arbitration because you have no uniform in decisions you have arbitrators you're going to making rulings which are subject to review by course but only under circumstances where there is fraud or other wrongdoing and so what you end up with if that's the client's and go to arbitration is the exact opposite of what congress and the f c a and vision in sherm's of the uniform law you have arbitration which relies upon state law which is going to be different in all fifty states potentially potential conflicts of law again it's the absolute opposite of the uniformity well i mean let me ask you this all right so you pointed out what you it is per se but i think in this case the way we have played it that it is quote unquote parasitic i think you have to plan on the f d a no i don't think so because i think there's a different standard that applies to the cleri to certify causes of action which otherwise meet the elements of twenty three under either b three c four or otherwise in other words if you have a situation where the district court says all i have to or that i would direct the judges to pages eleven nineteen eleven twenty of the opinion where the district courts the congressional objective of achieving uniformity in rates terms and conditions of service remains in full force notwithstanding t applying the laws of all fifty states to defense s d a claims would impede the congressional objective of achieving this uniformity the lack of uniformity in the laws of all fifty states will in fact ultimately impede the congressional objective of uniformity that's exactly the same situation that we have here with regard to the issue of whether or not under the f d a claims can be sent off to arbitration with the wonder with standards to review the court's under the f d a i believe that type of determination has to be reviewed by this court predominance of individual issues and to use the question of law and promise of individual issues there's question of fact i that and one of the factors in the district court's decision was the district court so that almost certainly the defendants would move to compel arbitration if in fact the class was certified and the district court made that decision because the said they're going to do so and they've done so previously in the case first of all they have not done so previously in the case with respect to the f c a claims because at the time of the motion to compel arbitration took place at the outset of the case there was no f plan that had been played but more importantly i think the speculation on the part of the court as to whether or not the defendants of actually move to compel arbitration and all fifty states would simply speculation on the court's part and i think it involves an america determination that needs to weigh post class certification for example some of the things the district court fail to consider is post class sort of occasion with a famous actually move to compel individual arbitrations of say one hundred thousand class members in colorado or two hundred fifty thousand class members in texas is that really what the defense would want to do hundreds of thousands of individual arbitrations course not the whole purpose of the arbitration provisions in the class action waivers that defendants put in these contracts and strip tend to ensure that they have as many or as few individual arbitrations as possible so for the court to suggest that that the defense likely would move for arbitration all fifty states goes forward on a class wide basis in those states you can be very sure that the defendants are not going to be moving to compel arbitration because defendants always admit that their worst nightmare is a class wide arbitration where they have no right to appeal other claim and the parasitic declaratory least claim can be and should be certified alternatively this court can remap it down to the district court with instructions that the district court should do that or at a minimum that the district court should look at something that judge ray fail to look at and that is whether or not the f c a claim at a minimum and that's very very lethal plan should be certified on behalf of the california class because when you're dealing with just a california class the only issues that judge rae had with respect cation are gone there are no more issues with respect to arbitration laws of fifty different states so i think that an absolute minimum has to be sent to the district court for the district court to look at the issue something that was done in submitted to a form in an innate indian court the native american court had nothing to do with arbitration for the incision says nothing about arbitration there's a strong federal presumption in favor of arbitration embodied in the federal regulation act because of that the u there is no such expressions or stance regarding the federal communications act about all this regime has offered to you is a preference that they would like to arbitrate claims they would like to have a national result as opposed to a state wide result but in the analogous context arguments that we've been urging to the court that mr was on has no standing neither to pursue his claim about the cycle billing nor to pursue a claim concerning the arbitration clause theory which was the claim that the district court certified decision this close and we are their voters this state farm mutual life an auto insurance company where this situation came up in the interim while an appeal was pending the name plaintiff who apparently outstanding originally didn't last that standing because of an intervening decision of the montana supreme court this court said the proper remedy in that circumstance is outright dismissal and we must remand to the district court to dismiss the case with prejudice that i believe is the right result here as well myer's clear on its face and i'll move from our first mire is the situation of seeking to challenge an arbitration clause where that arbitration clause has not been enforced against anyone that's our situation mr was a no here  the class who also have no injury this all falls under proper sixty four where there's the two prong standard the meyer cancer council stopped for a moment how can you say i mean you use the phrase injury i'm going to use the phrase damages he has damages i mean that the district suddenly deciding to compensate them was egregious conduct which is also you know not a subject of this referenced in your briefing it seems to me that's completely failed to your entire argument in this area i need to clarify two point and unfortunately the very confused on the record first to the point the judge robert you just made the district court was confused about picking off plaintiffs the facts are and these are undisputed in the record that when mr  was which he should have known from the disclosures in his contract but then they decided we're going to take off your belt and said we'll resolve that problem it was a lot of accepted that there was never a credit given back nobody picked off the planet this didn't occur after the lawsuit was f occurred before there was any lawsuit at all that's where we're going out this nauseam me this morning it's what i like but check out my hotel and i go to get my bill and then the people the front desk say oh there's ten dollars of charges for the mini bar and i say i that effort because to do so would be basically to encourage efforts to avoid suits by picking off potential clients representatives how do we review that finding by the district court i'm a little perplexed because first of all i'm certain that's not a finding of the best record your honor that's plenty of argument and they have argued that excessively but those are courts only finding here was that mr liz i know received a credit after he filed suit and we  cited that in the record and in fact that's wrong it's plainly wrong plaintiffs haven't pointed to any record evidence to the contrary and there is no record evidence of any sort of pattern of picking off anyone related to  i'm afraid that's simply plaintiff's argument that this record signing is a very short finding and it is one reference to the fact that he thought he got paid after suit it's not true in fact what happened here is we have a situation instead where mr was on a full resolution of his claim and then he turns around and file suit even though that's already been resolved and this is about his that whether he was on the one rate or not what is the record about that  one he signed up for the digital advantage plan he did not sign up for the digital one right plan these are different rate plans you know the thirty nine ninety nine versus fifty nine ninety nine nationwide roaming versus no roaming only limited areas he admitted he admitted as much this case is premised on the claim that the plaintiffs of the sort of here is premised on the advertising for digital one right now this is a little bit of history the digital one rate was the first plan to eliminate  roaming charges and long distance charges throughout the country and made a call anywhere the same price and so the advertising claims for it were with rates this low a wireless phone is like your only phone and no surprises  plaintiffs theory was that those kinds of taglines those kinds of advertising statements about eight hundred to one rate somehow deceive the plaintiff who was buying digital advantage about which no similar statements were ever made arlo service for more than three years and during that time he switches state to digital one right and he also adds another line of service was actually expanding his service and he renews his  account and in the end he ends up coming out ahead because of out of cycle billing that of the way it worked out for him because it happens very rarely and it is easily can work to a subscribers advantages disadvantages in his case it worked was advantage he came out about fifty dollars ahead because of the way he was charged as opposed to if he had been charged in the way he says he should have so we lack standing here in the friday different ways and this is california for disability rights first we last banding on a project before which was intended to eliminate the kind of claim where there was a plaintiff that didn't have an injury in fact who hadn't seen the advertising of the fund that is exactly what the intent was stated in california for disability rights and  the proposition itself so it was on a has no standing on that ground it was on has no standing because ultimately he benefited from the practice as opposed to being harmed by the practice and then when we turn to the arbitration clause claim itself based on the fact that he needed to reserve some portion of his minutes and therefore he did not get the use of the full allocated time that he thought he had every month the court talked about this theory of  reservation injury and to be honest i'm not sure that there's anything the record industry was i ever did this actually ever did reserve injury but what's what's really important here because  this reservation injuries not something that he supposedly did before he filed suit this is something he did after he learned about cycle billing and after he filed suit so we have a claim here with mr live on always asserting a claim about deception supposedly people after he fully knew about out of cycle billing with that's not a deception claim at all that's a completely different notion but beyond that so first of all that also destroys missiles on his to the colony he's trying to represent these people who supposedly  received but beyond that it's now would depend on how you define the classic that's a difficult problem class here is defined as anyone who experienced out of cycle billing for four year period of time so it's basically anybody out on a one rate type plan whatever that means but that actually goes to another point as well because the problem is if you have this reservation idea of this reservation injury then it's different for every single subscriber what they do it or do they care maybe some subscribers reserve minutes once they are about a flexibility maybe others don't in fact probably most don't maybe some care about this maybe many don't and for that reservation injury was and if there's any commonality in this case it's destroyed by the time we get to that hypothetically if you accept the premise that definition it is inappropriate because it's too broad didn't the district court and better position to a clarification clearly erroneous so those errors once they're understood and up showing that mr assad doesn't have standing and isn't typical at all we could argue among us about  commonality and whether that by itself was enough the fact is there is so much wrong in this case with no standing threshold of you know typical of the attempting to represent a class of people who follow different advertising and as you think if you partly pled an unfairness claim on the inadequacy of the disclosures that the that the four factors would favor certification but i don't i mean it's very v a struggle a little bit with what unfairness claimed they just record accepted as well but what we do know is that there was only one claim one theory the court accepted and that was this notion that subscribers were unaware of how to cycle billing even though there's an express disclosure in the contract about it because they were deceived by this advertising for eight hundred digital one rate that's the unfairness of claim it's the only claim in the case to the extent the plaintiffs were trying to assert an unfairness claim challenging the practice of out of cycle billing all by itself to saying that is an unfair practice we know that that was precluded you can't make that claim because under section three thirty two of the federal communications act you cannot challenge rates charged and in fact there's a decision saying house likability is a component and is a rate charged so because of that plaintiffs in the trial court skirted around that and said this is a disclosure case we're not challenging the practice instead we're first off let me answer your question with respect to how the unfairness claim is play and in paragraph sixty five of the second man complained it says that the practice of the fence which is referring to out of cycle billing is unfair because it is not fully and adequately disclosed at the time that the customers of eighteen thousand wireless contract to obtain their service so it's clearly a disclosure claim and in receipt of disclosure and it's important to understand that w judge ray was doing his class certification rule he distinguished between plaintiffs two different theories with regard to claims he identified claims that he referred to as deception claims whether or not the disclosures and statements and advertisements were misleading or deceptive and with respect to all of the deception and type of claims under the consumer legal remedies that and also under the deceptive pronk under the u c l judge rate declined certification of those claims and they're not subject to appeal here so there's really nothing to be talking about in that regard on the other hand are the disclosure theory that disclosure claims the disclosure claim comes into play under the unfairness prong of the u c l which judge race certified and also comes into play under challenging judge ray's ruling on that issue yes in terms of what you have left isn't isn't that the class which is surviving this time with respect to the c e o or a claim with respect to the unfair competition law claimed judge ray certified a class on both the unfairness prong relating directly to the over charges that mr lozano incurred in connection with out of cycle billing and he also certified the u c l a claim under the correctly so was based upon the plaintiffs very that the disclosures were inadequate has nothing to do with any of the advertising that took place with respect to the plans it's just looking at the disclosures and what they say and are they addict with or are they inadequate that's the issue on the on the on fairness front that's why judge ray certified under the on fairness problem but did not certify under the deceptive prong because under the steps of kronk the test is whether or not a consumer is likely to be view multiple you'd have to look at individual plaintiffs understanding of advertising and so forth and so on that's not i don't agree with that decision but it's not part of the appeal it's not a novel issue that could be brought up before the ninth circuit then let's go back to you know learn the click yes how would you define the class in that it's the same as the it's the same as the class as defined in other words it's going to be any person who entered into a contract again all over again we could go much broader because you would necessarily have to be subject of cycle billing in order to be subjected to the unconscionable arbitration provision but that's mr lasagna for standing that's one way that it could be defined if we get back down to the district court below and have a chance to you know make a motion for reconsideration in light of you know the rulings or move to you know certified different class in light of the rulings five right now i'm kind of stuck with  record that i have and the class definition that i proposed in the class definition that judge wright approved which is other than what you're suggesting so i don't i don't disagree with you i just don't think that that can be done in the court of appeal that the court  it's my now we're into my time on task i mean the questions that i had and you can kind of put them together i mean how does the meier case i fact his standing and doesn't  myer decision as any impact on the certification of the unfairness claim under that u c l the real question is whether or not it has an impact on the certification of the claim under the c l r and the u l relating to the unconscionable contract provision and i think there's two important points that need to be realized about the market first it was decided on demur and i'll explain in a second the significance of that but second in the my case the arbitration clause was never asserted against the plaintiffs it was never in force against the plaintiffs and it was never attempted to be enforced against the plaintiffs and that's such an important point that the court of appeal made it three different times in its opinions and its opinion once on page one twice on page five so as a result with that type of record where did never been in force never attempted to be enforced and the court of appeal could find underage immersed standard that there was no possibility that damages could be alleged and therefore the court of appeal could find none of them are that that claim cannot be pursued because there's not going to be any possibility of damages or standing elizabeth we've got a different situation we have an arbitration clause that asserted in fact enforced against mr was on and it was in force at the district court it was in force for attempted to be enforced by pursuing an appeal for six years basically it was attempted to be enforced against on at times especially when the district board initially said you're off arbitration at times unsuccessfully when the district court later said i'm vacating my decision but the point is that it wasn't forced against him and because of that he incurred attorneys fees and costs in going through court of appeals decisions decisions court of appeals proceedings briefs his attorneys and so forth and so on so it's a different situation than in mire where there was no attempt to enforce it here it wasn't for decision i think that even if this court finds that the district court was correct to conclude that cordle name does not preclude arbitration of f c s claims i think that this court can still find that the district court erred by making the assumption that the defense would be moving to compel arbitration in forty nine states i think that was premature the court also criticized plaintiffs for not having a management plan to deal with that possibility but the fact is that is really putting the car before the horse because you can't have a manager but a management plan and so you know what it is you're going to have to manage for the reasons i stated before it's anybody's guess where the defendants would move to compel arbitration and one state for forty states or five  could very well be that the plaintiffs would not oppose motions a couple arbitration in certain of the states because due to sever ability issues we don't up with a class arbitration which would be great for the for the plaintiffs so i think the court was both wrong to make that determination that the defendants necessarily would be moving to develop retracement and also wrong to criticize the plaintiffs for not having a management plan for something that we need to know what's going to be managed first all of that could be dealt with post certification and certainly at that all together the disclosure was never made it pointed out the carroll case and said cara was the orange juice case where it says fresh on the front of the orange juice and it says on the side of the oranges frankly from concentrate the court this report correctly pointed out that this situation where all the schools are there it's just a question of how people responded to relied on them and so there's no commonality in that situation since that time other courts have also picked up on that same distinction and same understanding carol including those that only goes to the arbitration clause theory and i have to underscore it's not in the complaint any where you talk about how you would actually define that class and in fact if you were properly going to sue on something that you would expect to see a definition of individuals who had sought to enforce their arbiter enforce their rights traditional proceeding and have been compelled to go to arbitration instead that's not the class here and as we pointed out in the in the briefing if you go back to read the actual complaint there never was a claim an allegation fact the crux of the matter is really whether the clause was in force or not if the rule was what plants are suggesting then defendants will be precluded essentially from trying to do enforce their own agreements so you have this chilling effect on the idea of if you try to enforce the agreement and that in force mitt then is denied this report hold against you then a steel or a clause about cause of action for damages that can be certified on a class basis springs to life the question is really did anybody suffer injury and that's prop sixty four was there injury in fact and it was there a loss of money or property as a result of the alleged violation and in this circumstance there there was not so because so long as arbitration clause was not enforced against anyone we have a class defined with no members and mr was on a low standing as a non injured player with attempting to represent that class with no members projects for make it clear that this case should