good afternoon and may it please the court and i'm asking to reserve two minutes of my a lot of time for rebuttal granted the three issues before this court are interrelated as they involve the court rewriting and you hear me now yes and yes thank you mr show quick start again please the three issues before this court are interrelated is they all include the district court rewriting the statutes and regulations which provide the duty for the state court claims that have been actually alleged here specifically the issues or whether the district court erred when it carves pep boys out of the comprehensive vehicle heart safety registry by st rewriting the regulations to require a recall before the duty is triggered nd by finding that a requirement of no charge to the customer renders the service valueless even when the promise service is not pre bought provided i don't understand how that's a rewriting of the statute since we're in the context right now discussing standing well you to look at the actual statutory language and more specifically the regulatory language it speaks in terms of shall everybody shall do registration the registration should take place but but that  may go to nothing more than the manner in which the defendant here pep boys allegedly violated or did not act consistent with the regulation it doesn't not good to a particular individual standing in a claim against the non compliant individual or business entity we actually believe that it does your to your clients or to similarly situated individuals visa be a regulatory scheme a basis for standing i think the rd circuit precedent itself actually supports what we're asking the court to in that case let's look at the facts there the court said that it was that there was a highly speculative chain of future events you know your why oh why doesn't that actually undermine your position because your position is you know there's some injury here just by virtue of not having it registered and the way kemal seems to be saying that no you've got to have you have to show something that would actually have caused you harm and to get to where you need to get you have to assume there would be a recall and it wouldn't be able to reach or something along those lines would happen none of which plaintive so please explain your theory of harm there is harm and in of itself because the chain of a recall is supposed to start by the tire manufacturer having a complete database so that there's no delay between finding a dangerous or defective situation and being able to notify the people the statute itself required what it all what is that exactly the bare procedur couple of reasons number one income all congress itself clarified the fact a statute in this court gave credit act that congress said the mere publishing of additional numbers especially numbers that are publicly available information such as a bank's routing number was not actionable there is no such statement from congress here with regard to the statute or the regulatory scheme issue in addition come  all cites for other cases from the rd circuit the horizon case where the stolen laptop with on a crypt and personal data conferred standing the sissy no case where a single pre recorded call even a message on a cell phone can st stand in st pierre were an account number visible through an empty waltz glassine window conferred standing and long not getting copies of background checks used for a job or interview conferred standing in each of those instances unlike fact the the regulations set out protectable concrete rights and we believe that the same thing happens here because the statute itself speaks in terms of are registered tires were taxed you don't have to put in a precise number but don't you have to at least allege some basis if you're relying on economic harm for how you how she has been harmed economically non compliant tire so so you are saying that this is a product defect merely because the seller did not follow through with the regulatory requirement of submitting this corner that is in the brief and the regulatory system is set up in the congressional system is set up that the violation of mr shock was to do your send her name i mean she could and then she loses standing and she loses the benefit of the bargain because we've also alleged  the last standing are you suggesting that congress intended in the regulatory agencies intended to set up a schema in which people are better off not registering  being where that where the distributor doesn't register so that they can sue instead of a system in which they can take care of a problem by registering you think and that's the system that's supposed to be in place i am not arguing that your honor i'm saying she loses standing on the issue that we've been discussing however the secondary damages theory is that she den has had to spend time and effort to rectify what should have been provided to her you take care if you're sick or you know they have to fill out their portion of the card and give it to her and then she fills out the rest and sends it again option two is that they fill in their part and her part and send it in for her the rd way is to electronically provide all the information as well so i'm saying that they haven't followed any three of those methods and further you go register use you've made allegations about two of them but the follow any of the three prescribed methods well you can go back and check it later but i'm pretty confident that you've right only on number one and number three that the terms of the regulation yeah i was looking for that too and i don't think you've addressed the situation which that you are records her name and address on paper registration form then submit to the manufacturer this is not a dress we have allowed just below that none of the three methods with loser you can't just say i mean you know this much to say you blew the statute painting right you have to say you had to give some factual information and that's just not in there as to that that's i believe in the complaint we've said they follow none of the three methods she wasn't given a card they didn't ask her for is occurring information to fill out a card and there's nothing on her receipt which is required by the regulation saying that they filed electronically she's played as much as we possibly can as to what wasn't provided oh we'll we'll but we'll be checking too but i'm not sure in fact it is alleged that she never provided her name and address the time purchase i'm not sure that's in there but i'll your honor it is not in this instance i'm not sure what others in the industry do but with regard to pep boys that was not on the receipt and there was no indication on the receipt that they'd actually submitted anything  legally significant the congress did not provide for a private right of action here i don't think it's conclusive it's obviously something that you can look at the determine whether or not they're standing however i would states to enforce the regulations as written not changing the rights duties or obligations and converse lee saying that if you actually comply with the regulation it does not absolve you from liability for common law claims that we alleged we do believe that there is a violation by not registering in and of itself that being said our claims which sounds you know negligence pursue and negligence and consumer fraud are using the statute as evidence of what the standard was that was ultimately reached here so to add to the extent that the firm here needs to be concrete  you believe that is a consequence of noncompliance there's increased risk to her person or her property from recall yet and registered tires we've alleged balls we've alleged concreteness in terms of money damages she didn't get the benefit of their bargain we've alleged damages money damages in the form of unjust enrichment that the tire independent tire association when it was lobbying on these regulations talked about the time and expense associated with registering the tires and that they've used that save time and expense to go for sales or other services to make money and you know that's the st part of the concreteness the nd part of your the answer to your question is yes we have talked about the future harm that within this regulatory scheme every single part on the vehicle is supposed to be tied to a v i i an or a t i a and so that when a determination is made to institute a recall that complete list is available the manufacturer doesn't have to scramble to hundreds or thousands of retailers to try to get that list mr shuck was this kind of reasoning wouldn't it lead to the necessary conclusion that any regulatory scheme necessarily implies a private right of action any time to government require something of somebody if that person fails to do it anybody could sue him because not that  doesn't matter that there's a comprehensive scheme that it's trusted to the secretary of transportation and didn't force anybody could sue where's the end of the logic on this where stand where there's a cutoff point where somebody w h a right to sue under that logic you just explained i think it occurs in two or three places your honor the st place it would occur is the language requiring when the registration take place either congress  relied upon a good time with her just through in purchasing that tire tires place we did allege that c purchased or thought she was purchasing a tire that was compliant with all regulations and to go back to your question judge jordan i think the nd place where this could happen is that you would have some sort of preemption statement saying there is no private cause of action or in fact there's some clarification saying right on their head like isn't the fault well the private right of it with regard to a private right of action i think you're right it's when congress says you have a private right of action the fact that there isn't a private right of action doesn't for close you from using the correct although all well if that's true and i believe it is then we should be paying attention away to congress and i search in vain in these regulations that you cited and in the rising statute to find something that indicates that in this team of registration which they wanted for the safety reasons you've accurately described that they did that they meant for people who buy perfectly sound tires or other equipment to have a lawsuit because a a a a failure on the regulatory side i'm not seeing it in the language now maybe there's something in the history of there's something far i'm missing well i think when you look at the entirety of the regulatory scheme every single part on the vehicle except for tires notably except for tires is tied to the am the vehicle identification number with regard to the tires the t i a on the manufacturer who sells it to the new car dealer who sells it to you registers the tires the  tire manufacturer oh and store registers the tires we're now talking about a subset where pep boys is saying well everything else needs to be registered except for here and in essence what they're saying if we if somebody if we blew it and we didn't do this then we might be in trouble with the government but that doesn't mean people who are driving around on perfectly good tires come in and sue us they don't have standing and been hurt that's what i think there are going to be i guess we'll hear from them in a what they're saying is we don't have a duty to register we can wait until the tire manufacturer reaches out to us and says all right you have these names all right we'll have you back on  know it made her really work we're going to trios i guess so just to answer the question we're making argument regards and whether or not there is a you know hypothetical damages risks that added manifested and is not established and or a concrete injury is your argument as mr felt was said that you don't have to register until there's a defect then issue and they thought in fact there is a private right of action they said there's no question that alleged noncompliance with the regulation of proven true but seriously increased the risk of harm to a concrete interests that is a concrete expectation that the tires would be registered what's wrong with their reasoning well what's wrong with that reasoning is they didn't even they didn't just take on the judge junior's decision to dismiss the original complete in this case they also took on come out and they said no in our circuit our circuit disagrees with kemal we're going a different direction so they did not have the guidance of kemal that judge jointer had and they did not have the precedent that says there has to be a concrete injury and that a recordkeeping violation such as existed in kemal and such as is alleged here are insufficient to a step without more to establish standing there was  the cost of the market may be increases the cost the ticket because no way to be sure that's not really what we have here and if we were to send it back why wouldn't they be able to get into with her just part of it appropriate if they get that they've already had one chance as a judge to wonder when he dismissed the original complaint put right in the opinion that he was providing a roadmap for the plaintiffs to follow in order to properly allege standing under kemal and understood and they basically were able to add virtually nothing in the way of additional facts there was some additional commentary that was added but the poor message of the of the claim is we've suffered no damage but we're entitled to recover anyway well if i'm independent yet it's still going to be the same cause of action maybe so but i'm not trying to be wooden but i thought when you said i don't have jurisdiction you necessarily said i can't speak to the merits at all if you can't speak to the merits of oh you can't do something with prejudice right you can't say i mean if you can imply that you're doing something that affects the merits all you can say is i'm out i don't have anything to do with this is  yeah i have i have i have no power to do anything one way or another you're in the wrong court you're in the wrong place beat it with prejudice implies i'm ruling on your case whereas a standing order ruling says i'm not ruling on it i can't rule it we're done isn't that the way it works well i've i believe that's sort of the formulation that set out in the contract case in the kemal case that once there don't have jurisdiction i think you can issue you can affirm and or understanding and and affirm that judge joined us funny that they've had a chance to establish it and they can't that's all it's being set now in no other what is it all that being said and i don't mean to be a stickler on this but it's important like a suit for the sake of discussion we thought you were right and he was right that there's no standing here and there is there orders it doesn't affirm or reverse opinion it's well so the the order dismissed the complaint without prejudice with creditors excuse me so that judge jordan has described just let's say it goes back and they're allowed to try to repeat again and we're back up here in rd circuit with another we're stuck in a ground the are no circumstances under which standing can be established based on this amended complaint and that's why a permanence of the order as it as it stands as appropriate argument that the violations regulation somehow forms a per se or de facto defect under the motor vehicle safety act that in addition to what's in the br the act lays out a comprehensive notification and recall scheme that is addressed only to physical conditions and it allows remedies of repair recall or refund those are  thank you your honor i listened very carefully to const carefully to counsel's arguments i still don't hear them acknowledging that the regulation requires them register either at sale or within thirty days of the sale and i think that's where the court got it wrong because it goes back and forth between well you don't have to register or you don't have standing i should say until there's a recall or until there is that the fact that's not what the regulation says you can't rewrite it in that the benefit of the bargain you can show what a fully compliant tire is worth and what a fully cut non compliant tire is worth and so on that delta in addition to what we said that there w a compliant tire is worth more we don't have to prove well we don't have to prove in the complaint what that amount is the fact of the matter is there is no it's conclude when you say the fact of the matter is isn't that sort of the definition of a conclusory allegation i don't have to say i don't have to give me the reason i don't have to give you an explanation i will have to give you a fact i just can assert there's a delta don't you have to be on conclusory allegations say something that would allow the court to say yes somebody would pay more for that tire if they knew that the postcard got sent as opposed to the postcard well the opposite is they would pay less if they're not driving on a fully compliant tire if they knew they could go to the goodyear on store and get the tire and it's registered they're going to choose to go with the compliant route instead of the non compliant route going back to judge mckee's question the plaintiff is stuck she goes out and registers and spends her time and energy and goes to the expense of doing this and is not compensated for what is supposed to be provided the statute itself that the the judge joyner cited says you're supposed to provide this for free he's recognizing that there's an economic value associated with this and you can't charge for it it's a fact issue as to whether or not they did charge for it even though they didn't provide it and then rd from the unjust enrichment defense perspective they have saved time and effort by not implying with this regulation and use that time and effort to make money doing something else we know that because it's industry association in the regulatory history  quantified how much it costs for them to register a tire or a set of four tires that is what we do a ledge than our complaint and if the court is going to remain and this case i would respectfully request that we get a right to reple because if this is an issue about not adequately pleading the damages or damages a model i think we can fix that if this is an issue about future harm we've talked to that issue i think we can supplement that issue certainly don't intend to do it as well we understand your position we'll take the case under advisement and i will ask the clerk to recess the proceedings