please the court my name is chandler fisher with me is l a l a how we represent circle click media and c t n y insurance group the pla certification even though it said that even if this more than twenty five thousand class members received the identical contract which the plaintiffs say is misleading the court said quote individualize inquiry of whether a person was in fact told about the dispute disputed fees existed so that individual a show issues dominated the individual issue an individual issue is one that you have to the plaintiff has to prove a trial as to the class and the question is did the plaintiffs in this case have to prove that none of these class members knew about these hidden fees and i think that the answer their questions no very clear uncertain as i think the district corps was uncertain at various times throughout this litigation on whether you base your classification theory on re based entirely on the documents seems different than what you were arguing down below well your honor if you look at at our motion for class certification on the a to e r three fifty eight where we say the issue on the seventeen two hundred is the failure to adequately disclose certain fees may confuse consumers as what the dischord had decided and the kitchen fee was one of the things you were talking about at that point right i mean you are banned on the kitchen fee on appeal but not to the district judge you not right no your honor we on request for for reconsideration we tried to say look we in in our seventeen two want to claim it's true we said ok the failure to fail to properly disclose involves three three fees the o r s the b c s and the  the kitchen many's feet is a very different kind of fee because first of all there's another document that they get that talks about that fee and we thought that that of the document was misleading because it called that fee optional when in fact it was mandatory but that fee is much more likely to have been discussed during oral discussion of the case they get if they get a a bill for that every month so it's it's because they are as in the b c s fees are not mentioned ever in my figures no one contradicted testimony in the record that those fees are ever discussed in the oral presentations that circle quick in fact read them before entering the contract no that's not true you are in that one that ms wears the original testimony was no no that's not correct you are in september of two thousand and ten they entered into the contract and the testimony of  that she was able to read the terms of conditions in december of two thousand and ten so that was about three months later so the contract was entered into in october starting in october two thousand and ten and how can you know what you're saying now that you're just going on the documents is that correct the written documents yes sure and i think that that i so i guess my question is how can your class be certified with out any references to what the the sales representatives or employees orally told customers because that there you get the question of what does california unfair business practice law require and as fletcher made clear  that that was misleading but but in in fletcher the trial court refused to mid the unfair business practices claim to go forward saying quote to proceed as a class action on the ground that proof of each individual borrowers lack of knowledge was required so that and the court of the supreme court said no that's not true if you can show in an unfair business practice case you don't have to show that no there was no knowledge i'm just going based on what you appeared to concede during oral argument at the district court that a customer who was told about the hidden fees would not be deceived that's absolutely correct and that's exactly what supreme court said  yes it's true that if the bank came in and showed that some of those people knew about the three hundred sixty day a year that they would not be entitled to restitution but the court said that doesn't affect whether you can get a class certified class certification does not require that no one was knew what was going on so you don't have to fool everybody so how about mazo maza is is a case unfair business practice case reliance is of subject of the only the name plaintiffs have to rely and in our case we do we do show that and so the nameplates did rely but what m was that in order your class have to all be exposed to the same advertisement in that case they work in our case they're all exposed to the same misleading unfair contract everyone got t general contract which said on the front of it a price which was much less than you actually had to pay it with so it was a misleading contract had nothing to do with what was said during the hear during the sales presentation it's true that if your case is based on sales presentations that you need to show some uniformity there but as the supreme court in  fletcher said said without requiring said you can you can get restitution quote without requiring the often impossible showing of the individual's lack of knowledge of the fraudulent practice so we can never show you got twenty eight thousand people we could never show that none of them were ever told about these fees so if that was the requirement which the bank in security does accept it was in the supreme court it wasn't but if it was a requirement you could never have a class action based on on documents that were misleading because you'd say well somebody might have been told is there anything in the record that shows or approximately what percentage of this  that there they they had a pop up practice of of not discussing these fees and we had declarations from three individuals five not eleven individuals but three of those all of whom said no one ever told us about these fees you acknowledged at the district court that some folks would been told about the fees some people may have been told about the fees and that's why every right and then why you revise your class definition yourself we in because just convience said you couldn't have it in your class people who on the face of the documents you could tell do about those fees no what what what bothered him was the fact that there was evidence in the record if you look at some of the contracts it said in the in the comment section made some mention of us and b c s fees and and more particularly the kitchen ministries and he thought that including those people in the class was over was overbroad now that in fact in their california unfair business practice law you can have people in your class who know the nature of the misleading things you don't and everybody does not have to be misled and your time is limited and i do have some questions regarding the injunctive relief that you sought   the unfair business practice cause of action i think that no i don't on time but the interaction polo with the remainder of the interaction i remain and is that true first of all whether they remain of the entire action removed case you get a citation for that yeah i do maybe you can find it while you ok set aside come back up and talk to us about that when you come back so if you want to research sometime f presentation from a from a sales person seventy eight point six percent that's in the record they write it is your honor i was looking for it while you were asking the question and i know it's in our opening brief in front of judge conti the first class certain motion which is where i was able to find it the most quickly well don't look for now yeah so at i want to hit three points i want to hit waiver i want to hit the class served on the merits and i want to talk about standing with respect to waiver and class or at all on the merits we're doing with an abuse of discretion standard twice over almost abuse of discretion squared in my mind they have to get through both here because they they brought a claim based on all of regis's sales practices this document only claim did not exist anywhere in the second amended complaint it did not exist anywhere in the class or briefing and at the class or hearing mr vischer specifically disavowed that theory multiple times and that's in judge jones order he said part of the mix is that they're trained to tell people you don't have to worry about the service fees he talked about that they give you the documents in a way that makes you think you don't need to read them it's the presentation that they were talking about at the class or hearing and they have class or deny they file a motion for leave to file a motion for reconsideration and judge ssion says that what plaintiffs are seeking here is not reconsideration but new consideration of their claims as recast not reconsideration of a presented climb so it's our position that they've waived this document only climb and they've waived twice because they waived it in the district court and then when they get up on appeal what they don't appeal they don't say anything in their opening brief about judge chin's finding in denying leave to file a motion f reconsideration that they did not raise it so i think that's just wait but if you want to talk about the merits i think that the critical to stinks in that we're talking about here is is not judgment was quite clear he said i'm not making them show individualized reliance the issue here is are we talking about a relatively uniform body of information that putative class members works posed to and we put in evidence below although it was not our burden on class or we put in evidence below that the  customers were exposed to different pieces of information because the sales process is in the words of one of our declare it's highly customized highly individualized and people the training says it's your responsibility to go through the prices so that the prospect will understand what they will be paying go over the terms and conditions with the customer the terms and conditions by the way do disclose the b office restoration fee and section one point seven all of that training is there but where regis frankly has made a commitment to get better is making sure that all that salespeople get trained the evidence  the record and this is where this case lines up very squarely with call them back is that the sales people were not uniformly well regarded well trained there was one of the key trainings on how to how to give a t disclose pricing where approximately fifty percent of the sales people signed up for that training so what we have here is a sales presentation that is a validly not uniform it is customize and it's frankly it's imperfect at times it's individual ised we have it's human we have evidence on the record mr vischer says that there's no one contradicted evidence in the record that these fees were disclosed i think i want to disagree with that in two ways first of all there's lots of evidence in the record that the these two fees were disclosed it's in the declarations of lori spin and supplemental excerpts of record sixty six it's in the the minsky declaration there are three this is the second one supplemental excerpts of record thirteen i thin the harris declaration supplemental excerpts of record forty nine he always told the customers about the o r s the v c s in the kitchen amenities fees lorries fillers who's the sales person who actually did the circle clicks sale says the same thing i always went through the terms and  i always disclose these fees now you want to talk about un contradicted evidence in the record they submitted declarations from a number of non named plaintiffs who were also reaches customers who said i didn't know about this i didn't know about this we found e mails to those people where the fees were disclosed we found contractual again where the fees were specifically negotiated and waved at the time of the signing of the contract so i would point the court to the one of the exhibits to the first the minsky declaration s e r five where there is an identity where the business continuity service fee is made optional the same thing with the second's minsky declaration that s e r nineteen the agenda waves the office restoration fee for an old office so there is lots of evidence that these fees were being disclosed and the fact that they are mended the class definition is really the best evidence that the fees were disclosed because what they're saying is well let's just exclude from the class definition all the instances where the fees are right there in the comment box on the front page of the office services agreement the reason they're in the comments box is because they were disclosed they were discussed and they were negotiated by the customer now mr mr fisher tells me that ms where did not testify that she read this stuff before they entered the cot before circle click entered the contract i had missed that come in do you agree yet let me clarify that your honor because i think you're both kind of right here in this ward testified that her a partner mr peterson handled the original contract that she fully expected he would have read it but she was not able to testify on first hand knowledge whether he did or did not mr peterson was not deposed on renewal when the contractual relationship with regis was renewed she read shall on the other hand we have a case that's been litigated for six years there's clearly subject matter jurisdiction of the district court there's no question about that under cafe that was never contested and so what they're saying is we want to take now not just one claim right but one part of one claim one form of relief for one claim and have that remand and i think you could fairly make an argument of waiver there because that was never they're a little bit weaker but i mean how much different well i think what i would say is that if you're going to ask for an injunction you know it may not be framed in jurisdictional terms the way it is in federal court but if you're going to ask for an injunction you need to show you should be able to show that there's some kind of individual threat of harm in the future but i think that's my question under california law what a plaintiff in this circumstance in other words yeah i think it's i think it's tricky so there's a there's a real party and interest test under california law and we would not contest the circle clerk was a real party in interest here and that's frequently how standing is described in california state court so it's really sort of an apples and oranges kind of saying but what i what i would say is that the veil belief or injunctive relief is not just you know you show me something that you think is misleading and i give you an injunction but if this case was in state court the public injunction clime would not have been dismissed and then in that mcgill mcgill says if you're an injured party even though you don't have anything going forward you can still get the injunction so mcgill doesn't frame it quite that way but mcgill mcgill did come out after judge chen entered his order and we did not defend that second half of his his order and summary judgment based on the mcgill decision so that's that's correct we have we have not you know california supreme court what the law was there and we're not obviously contesting that but if  claim in california state court would not have been removed longer calf could have asked for a public injunction that's that's one possible way of going about it i think you know obviously represents a congressional determination that these kinds of cases belong in federal court and they did that against the backdrop obviously of what are three one of the stations are and i think the other the other point i would make here is  you know they say the plaintiffs it mitt repeatedly actually in their reply brief that and i'll just quote from one instance this is page twenty seven of the reply regis agrees with plaintiffs that the injunctive relief may not be split in re mandate separately so what they're saying here is and i think this is right because i don't think you can split this unfair competition law claim into different forms or leave california is pretty darn clear that it doesn't allow for claims splitting right so we have adjudicated the unfair competition law claim in significant part here right there's been a offer of judgment and acceptance of offer of judgment on the individual damages on the individual restitution claim including the unfair competition law klein they're saying we can't split it they've already gotten a remedy for that restitution part and now they're saying just take the injunctive relief and throw it back down to state court the offer of judgment was pretty darn clear they're not wai they're not waiving the right to appeal the injunctive decision there was nothing in there about saying and we're going to ask for remained on appeal right so that so now now we're in a position right where they have they have said we're going to we're and at the same time they admit repeatedly in their reply brief you cannot support the claim that irreconcilable yet i don't i just don't see how they can get past that combination of circumstances i do want to talk about the very well reasoned opinion and davidson for just a second because i think that controls the standing issue here you know in davidson there was at least an allegation a future harm and in our case not only was there no allegation of any future intent to purchase the product use the services anything else but this case was decided on summary judgment not just a motion to dismiss and they had an hour they had an opportunity to put in evidence that point which they did not do so i think this case fit squarely into the davidson sort of i don't know exception if you will how davidson reconciled the other circuits law and said in those other three circuits where they've gone the other way and that footnote it said those cases there was no allegation of future harm this case is exactly like those other circuits  in fact it's even more so because they had an opportunity on summary judgment they didn't put in that evidence because circle click had colorfully and in phatic lee denied in deposition any intent to ever use regis again so lee has said that there's three declarations he mentions three declarations where his people said they talked about this but those are the those are entered in contradiction to our declarations as the three people so that we had like seven or eight declaration saying we weren't told about it they contradicted three of them so there's no one contradicted evidence about this now he sucks about seventy eight percent of the people were went through a sales process well we're not contesting that people went to a sales process we're saying is they were given a document that was misleading everybody was given the same documents and and the question of  distinguished lines by stating that but unlike plaintiffs and lions heroes alleged injury was ongoing at the time the complaint was filed an injunction would have redress heroes injury well in our case at the time the complaint was filed we were still in as you know about these fees you can never be misled to get lower so you've got a contract that has hidden fees in as soon as you the defendant comes and says you have to pay this v c you find out about it you can't thereafter ongoing and but a month later after the complaint was filed heroes was repaid the money she was owed and so she didn't have that claim anymore i just have one last question for you because your time is out so do you i have to do that and so because you because polo had not been out and that's why i said you didn't ask him that you know i think i think polo said that you didn't have to post says you don't have to make a motion responsible of the district court to remain and and so we didn't have to say and district court because the law was very clear in the ninth circuit that you could waive that don waive will claim and probably makes very clear that you don't have to to make that right thank you very much thank you thank you both for your presentations here today mr marshall mr fisher a circle click media and c t n y insurance group versus regis management group is