extensive computer system and applying the livery the get a senator and they know it but they don't do anything about it they don't notify the customer they don't refund the purchase price they don't refund the overcharge they leave it up to the motions and issued rulings on the issues that are now for the court judge barbara growler heard a motion to dismiss in two thousand and seven and denied it with a written any opinion explaining her reasons judge daniel stack and her and judge william mudd was appointed that filed a motion for reconsideration from the judge much we think was improper motion there was no new law or new fact the only thing new was the judge just might then that in the record of the attack part of it in the facts claims that another part of the contract the money back guarantee provision is the exclusive right and they rely heavily on one million versus federal express corporation which it does not hold the plaintiff is limited to only that part of the contract if it said that the court would rule differently plainly there is an overcharge provision in the fed ex service guy then there was during the time of movie but no type of service that that's probably another way of saying the same thing but it applies in our case as well we got a bill for a standard overnight shipment when in fact what was a liberty was the equivalent of a fed ex today and then an amendment to the overcharge provision added this very broad praise any building any building that results in an incorrect or it's hard to imagine something more broad  speaking burdensome clauses in it he's in contract should be construed against a more powerful party it's it's a simple it's similar to another rule this much more familiar ambiguous in bargaining for the terms of the contract and in fact this is a classic contract of asian benefits had absolute bargaining power over the terms of the contract customer comes in selects the shipment no matter what price it's you know there might be twenty five bucks you get twenty five dollars back the overcharge section is a different remedy that allows a longer time one year to make the claim but you randy is not your  heavily there is a sense that says essentially for service failures see money back guarantee and they want to say that seals it up that makes it crystal clear that money back guarantee is the exclusive remedy for late shipments there are a couple of problems with that one is that they're asking the court to add words that aren't in that phrase effects really met the money back guarantee to be an exclusive remedy that would have been the perfect way to say the money back guarantee is the exclusive remedy or the only remedy or the sole or anything like that say that's the only way you have a remedy for a late shipment what they did was essential hasty also if you read the service guy going to come to them for the overcharge provision first and the money back guarantee doesn't come until about ten pages later and so this provision is telling a customer if they're reading the contract there's another one you might want to consider as well  there are a remedy is or is not available for that breach of contract kill more than a year after a case was written we had three arguments to address that one is certainly the tolling provision that goes back to the sky number when a class action is and that's not the case at all it's it's clear that mr fleischer filed his case based upon shipments that he shipped through fed ex not somebody else the shipments between claims that he didn't know he filed not do the class action if the class representatives claim is ultimately rejected on the merits the class action may be preserved by the appointment of a new class representative and that's exactly what the the motion to a there are also claims about the airline deregulation or and preemption that was a that was an issue in the movie but not directly address  provision is procedurally conscionable they say you can't do all that which really hamstrings or the court has to be able to afford really that's the phrase for war and they're like airline no consequence to them exactly now they sign and their brief on page eight and i don't know what portion the contract is from but it's page eight of their brief paragraph thirty nine the request must be the reason you believe kind of writing out of these limitations there like a relation at justice ginsburg was very clear when she talked about carving up the exception from the expression preemption visions to say that she would permit you know i am and there is a difference and you get an adjustment back you didn't part of your money back and that was all because of an overcharge and the internet in the country why wouldn't it be limited that i think it they deliver the wrong at the wrong time not the rate they charge time the rate they charging was correct the rate they charge me is correct according to what i wanted but i'm not going to what i got but it became the wrong rate when they delivered it exactly so are you relying on the the last the very last phrase or any billing that resulted in a correct card we also rely on that i think that actually answers your question even better thank god and what is it that i have that was on line  i see your point there are any billing that results in them correct or they could hardly be written in broader terms and i asked the question how could our claim not fit within that definition that definition the billing we was for standard overnight but it was not correct because we didn't get a speeding ticket we got a fed ex today shipment which cost less money but that the time you paid the bill it was correct you pay for the service when you let me just mention one thing very quickly us about the adjustment there are again eighteen million shipments in the period of plans that have not been adjusted no overcharge has been briefed that's what this the the last thing is the council mentioned the airline deregulation and the problem again is that they want to say ok you have a breach of contract case that you can decide it but the board's hands are tied the court cannot exercise any of the the procedural or ancillary rules that are necessary actually before her leading to a blanket who files a breach of contract because they say the rules are still the seizure have to be written in the