times so i'm going to focus primarily on the duty of this closure ok and if you can keep your voice up that would be helpful please send and rest on the others unless you have questions ok and starting on the duty of disclosure there are three facts that i think framed the duty of this closure that are contained in the attorney general's amicus brief the first back and he to me general is citing the california transparent transparency supply chains act resource g for all these facts the first fact is that human trafficking and slave labor generates one hundred fifty billion dollars in illegal profits making it second largest criminal enterprise in the world the second fact that i think helps issue is that the resource guide has made a finding that consumers are often unaware that the product they are purchasing is the result of either human trafficking or slave labor and the third point that i think helps frame the debate here is that the resource guys guy finds that consumers are increasingly demanding transparency and they're willing to pay more for a product that is free of slavery or human traffic so those points then give rise to the duty of disclosure issues it is our core contention your honour's that the wilson case which imposes a duty only when there's a safety concern and that's the finding of the courts below in that regard that that case has been there five or modified by three california court of appeals decision such that it's no longer a good law and those three not as a matter of california law require that there be a safety concern in the in the rutledge case is the one where the screen darkens is a should not so again as a physical characteristic of the product itself whether they mean anything used to that went right to the issue of is there a material disclosure and is one of them are the factors triggered so it didn't even mention wilson and i think it's significant because by this time by two thousand seven hundred in light of collins and although they weren't bound to follow the wilson case anymore because they had felt they had a duty that there was now subsequent binding authority from the california courts that indicated that wilson which to follow that california decision and i think this court has ruled in alvarez that a such a prior decision one circuit is only binding in the absence of any subsequent indication from  california courts that our interpretation was incorrect and here i submit to the court there are three indications that that those in decision is incorrect so then if you agree with with the plaintiffs that wilson needs to be modified or if you have any doubt about the issue it's clear that the court's low are struggling they see these california decisions they see wilson they see an inconsistency and they or so that it's really too but in order to do that we need to be able to because the california rules require at certifying to the court that the quick answer will be dispositive yes and orange juice and that we have to be convinced that any it and if the concept applies anything beyond safety it applies to your circumstances which as judge pleasure was suggesting are quite different from the circumstances in any of the cases that you're a line there's two cases that i suggest you answer the question and those two cases are caskey versus ninety and that's it and those two cases stand for the proposition where in those cases those are countless from court cases yes and they stand for the proposition that it's not the functionality of the product that whether food was harvested or product manufactured by union workers and whether you had a right to know whether your diamond was conflict free and what was the holding in that case the holding was that you did have a right to know those things and they needed to be disclosed holding of the california supreme court was in the nike case and a stand that the underlying issue was conditions in which the nike shoes were produced abroad but what was the precise holding of the court in that case but my recollection was that there was a duty to disclose the labor practices involved in making the nike products in that case of course preceding our wilson case yes it does and that and i thought it was a more technical you call it dicta but it's clear that in reaching the standing decision the court said that the point of it standing because the plaintiff had an interest in receiving the same type of preparation and then nonetheless he had an interest i had just that our product is produced is material to you have to have materiality or close to it to get standing how let's suppose let's assume for now i  don't know whether we ourselves can get beyond most i mean i understand your point at the california case to seem to amble further but we have our own internal rules about our banks  we may have a problem but let's assume for the moment we don't so that we can at least go as far as collins and rutledge and say that there are some instances in which there's not a safety issue in which you can  but then when i ask you essentially is what rule are you asking for after that what i'm asking for what i think the rule that comes out of collins rutledge and certainly rubenstein is there's a duty to disclose when something is material and when one of the four limb already factors is met and in this case the factor that we believe is that is exclusive though it's by the defen people will care about the labor they close into the project and other people will care about environmental issues and other people will care about whether it was made in america and america so you put in maine and what has not many american at that point you have a very complicated label so what's the limit what's the measure here i understand your question and i think the measure is twofo here's an example in the rubenstein case the court looked at two things is immaterial and the court found it wasn't material the consumers had no expectation that was not  prevalent in that case and two is their exclusive knowledge in that case there was no exclusive though it's because the consumer can look at the clothing in the store and realize that the workmanship was shoddy so that doesn't get out of the don't have first is the defendants in their own corporate documents have admitted that materiality of the supply chain and the use of slave labor and forced labor is material to their consumers they've set now i come forward in lots of consumer cases i don't usually have corporate documents saying that what i'm asking you to disclose is admitted by you to be material so that i think raises this case up it isn't you don't know that i guess for two reasons they claim that they don't have an interest and knowledge one is they don't have very good knowledge themselves because they're way down the chain  secondly the best they're going to be able to say isn't might have child labor or the worst forms of child labor slavery but aside from that here's what they know they've admitted this is a problem in their supply chain right her it's in their sleeves papers they're working with the fishing companies are working with a subsidiary that's producing fish that's made from se slaves they clearly have superior knowledge of consumer walking into a supermarket to buy a chocolate bar i don't think the cases suggest that the consumer they can look at the website you know annoys much as they well the plaintiffs allege and certainly on a clear standard that they did not know at the time of purchase that their product was polluted with slave or child labor so that should be taken as true but the question for to address that very issue the court said we're not going to be bound by rigid notions of what's exclusive we're going to look at whether the corporation is a superior position to know this information and this judge also said when dealing with this issue with the general motors case he said look this is the fox case which was cited with approval by the california court of appeals and collins the court held that g was in a superior position to know that it speedometers might fail and judge also help they were not required prior to purchasing to have done internet research and so collins so i did that with approval  we think that's the play here these companies clearly have superior knowledge and this is i think different you can correct me i'm wrong in the sense that in the general motors case for example  you would have had a jew research you would have to start from scratch and try and find the answer to this question there was a designated web site to go to to find out the answer to that question here there that provides i understand that it's more that the questions that are being answered are more in the nature of what do we know but that the problem is that it certainly spike chain act that would tell you which companies for example there's nothing that would tell you that the seafood companies are using slave labor or seed slaves out of time i thought each manufacture looking at the test from a reasonable consumer and i submit to the court that a reasonable consumer prior to buying a chocolate bar is not required to go do research about whether or not that  the product of human trafficking why would the reasonable consumer even think that the average reasonable consumer going to as judge poe points out you have to have a reason to make an inquiry why would they have that reason to right but but again i would say if i want to buy a product that's we have human trafficking which the attorney general says most consumers do i go into a store why would i even be an inquiry notice that i should ask but the defendant in this case each of the defendants is in a superior position to have made a disclosure and the reason they don't want to make that disclosure is they know that two things are going to happen either people are not going to buy that product and they're going to go look  please the court my name is steve raber and i represent mars who is a defendant in two of these cases the hoddesdon chocolat case and the worth seafood case i plan to address the duty to disclose issue and related issues including the certification request to the california supreme court mr merriman who see the counsel table represents purina in two of the cases and he plans to address the safe harbor argument and you split your time roughly how to say i'm going to try  about twenty minutes ok despite an unbroken line of ten decisions from this court and four district court judges below the plaintiffs argue for a new president a duty interested and then you publish ok well i understand that they're not binding but i think they can be persuasive perhaps and so we do have an unbroken broken line certainly of published decisions as well and these cases isn't what they're saying about california law well they are i think that i take it you're asking about collins and rutledge well of course a new the one of all safety well that's right and so here's here's where we have to go back to basics the ceiling case set the standard for public policy which basically said that it's a consumer can't be charged that if they buy a product they're going to get injured but they can be fairly charged with the risk that what they buy is not going to live up to their economic x x but patients unless the manufacturer tells them that it will or agrees that it will and so that was the starting point for dorothy and barton which are really the seminal cases here which which basically said that there are three circumstances in which somebody has a duty to disclose if you give a warranty if you make an affirmative misrepresentation or if there's a safety concern and so the safety issue is only one source of a duty to disclose so in rutledge for example rutledge said you don't need a safety concern well that's because in rutledge the defect manifested within the warrant warranty period that's one category of disclosure and that the it was alleged that the defendant made misrepresentations that created a duty to disclose that's a second source of a disclosure and so hewitt packer in that case was forced into a position of arguing well it still has to be safety and the court of appeals did the remarkable thing of saying you don't need safety i e you've already got a warranty and you've already got a specific misrepresentation which is exactly what the wilson court held the wilson court said absent a warrant and you have a duty to disclose into circumstances if you lie about your product you make an affirmative misrepresentation or if there's a safety concern so rutledge fits comfortably within wilson because it involved two with the three categories for a duty to disclose and similarly collins involved a case where the defect occurred within the warranty period and i know it was an unpublished opinion but in the vent case this court in two thousand and twelve denied a rehearing and discussed collins and said that it doesn't there's no change there and in fact just this march in williams v yamaha this court reaffirmed wilson and we went back and looked in the plaintiffs cited ruttledge in their reply brief in argued change or way from wilson were the cascadian kwikset cases and in addition to the questions your honour's had those are very different cases because those are both affirmative misrepresentation cases in the the nike case there was a representation made about what the labor conditions were within the plant and they were false and in the kwikset case there was a representation that these locks were made in the usa that was false and so all those cases stand the proposition those cases stand for is that if you say something you make an affirmative misrepresentation you have a duty to disclose the facts that will correct that misrepresentation specific misrepresentations in press releases and advertising created a duty to disclose the no no no i've got a printed out version of this can you help me with pagination as if it contrary to h p s advertising about the notebooks it was immaterial to the proper functioning of the no put computer so this is a case where they're making affirmative statements that are false unless you disclose things to correct the mission pression and as to the defects occurring during the warranty period it page for eighteen it says degen shine experience problems with his display screen blacking out shortly before the expiration of his one year warranty that particular plaintiff though didn't notify until later so he did he lost his warranty claim in then pour the next paragraph giuliano monny purchased th five notebook computer in january two thousand and two in experience problems with the display screen in november two thousand and two so both of these experience problems within the warranty period which is a category that falls squarely relevant not off the top of my head but that is you know you seem to know the opinion very well and everything else well well i go back to dorothy and job so my question is can you point me to a language in rutledge that discusses relevance of the warranty that the fact it was important that the defect arise within the warranty period otherwise you would have an end run around the warranty laws if you would essentially give a warranty for the life of the product and that was bargain and that was dorothy and that policy was recognized in the wilson case as well so it's a very significant limit limitation and so as i said because of that in rutledge because the court found essentially two sources have a duty to disclose that it was within the warranty and there were misrepresentation but it sounds as though they didn't rely on the warranty period unless you can point to the well it's just that it's the reason why he packard had to come back and argue that you have to have a safety concern and so that's why then the rest of this court went on and said you don't necessarily need to have a safety concern and that's consistent with wilson if if the manufacturer had knowledge of it and failed to disclose it and that's the second part of wilson where you see cases out there that talk about whether consumer complaints are enough to impute knowledge to manufacturer you're right they would have a warranty claim but if they could show that the manufacturer of actual knowledge that this kind of stuff was going to happen in the warranty period and didn't disclose that they can be liable under wilson under that those circumstances incorrect that's right because there were there were misrepresentations and so misrepresentations give rise to a duty to disclose regardless of what the warranty period is you can't lie about your product and you have a duty to disclose things that would correct that misrepresentation so i'd like to talk about the reasonable consumer expectations and  that's another basis to dismiss similar to what happened in the case which is that there is no reasonable expectation here that what they have and they probably think they had a reasonable expectation that it wasn't well i think that the complaint here however alleges the opposite that your honor that the complaint alleges that people are willing to pay a premium for a certification that makes you  labor here's here's my point that they have a neck they very have their will if they're willing to pay a premium for that certification that means one of two things they either have no expectation at all but when they know about the issue they're willing to pay more to have that or that they accept that there is some risk of slave labor and that's why they're willing to pay more in order to have that certification it's it's not an unfamiliar concept people don't assume that something's organic unless it says it is well you know that's because people understand that something people know about they know that there are a lot of pesticides and now some people would prefer to afford to pesticides but on this question it may be your same way not a lot of people just haven't thought about it that's probably true but if you ask them what's your reasonable expectation they will most people don't think there is slavery in the world anymore correctly and they would think that was made a slave labor and they might express just comfort now if they knew it so that that would lead you on a conclusion a significant portion of the population when they go in they just don't have here the plaintiffs expressly dropped their misrepresentation claim in the district courts so we have no statements at all on the label but they but the argument isn't that they are being  tricked the argument is they don't have this knowledge if they were given the knowledge they would change their behavior and that strikes me as absolutely likely of course they would which is why you guys don't want to close it i get that part too well but but the question really is are members of the public likely to be deceived not would they want to know something well that's what you see that may be relevant on your view of the case as to but of course if it really is deceit and if it's easily within the california case law with which you're comfortable where you're resisting is reading the california law is requiring disclosure of material or information that would be relevant if the consumers knew it but that's never been test and that goes back to california public policy expressed by the california supreme court in sealion one thousand nine hundred sixty five that that consumers can be fairly charged that the products they buy are not going to live up to their economic or other expectations unless the manufacturer agrees that they will that's set forth you know that strikes me is really off to one side to talk to me more talk to us more about why we should not certify this to the california supreme court i will say i'm speaking only for is as recently as march of twenty seventeen after hearing rutledge arguments in a published decision the court was not before addled and initiate a ruling reaffirming the wilson rule that was march twenty fourth of this year after the even if the answer to that is no which is what the plaintiffs want the answer to be they still have not alleged any other category that requires them to requires disclosure to have an alleged a warranty and they fair question whether or not i understand your reading relationally arema but even if you're right about that it's still a fair question whether or not beyond just i'll let me put it this way then your honor collins itself from the columns opinion it distinguished itself from dorothy and it said are facts and columns are different than dorothy because the defect manifested during the warranty period and therefore we're not changing the already we're not inconsistent with dorothy we're different and we're not trying to do an end run around the warranty laws that the dorothy court was concerned about knowledge here it's just looking at the allegations of the complaint the allegations of the complaint talk about the fact that this is been discussed widely and publicly going back all the way to two thousand and one but the harken angle protocol with the pace and center report in two thousand in there's the supply chain disclosures that information is out there for everyone to see and that's a lot easier then in the rubinstein case that just came out they actually imposed a duty on the consumer to go actually ask a sales associate hey do you do you all sell this stuff here in the factory outlet store is this the same stuff that you sell you know in your gap store or your banana republics store that's a much greater burden in the court in that case rubenstein said there's no exclusive knowledge because the consumer could avail himself or herself of that to determine the answer to those questions so i think it's a very easy case on exclusive knowledge the problem is the plaintiffs want to change the word exclusive to sapir here and there's not a single state court decision that does that i want to go back for a minute to the sort of her cation question i don't think you are first of all i firm on the grounds as it did in abner that you're on a mere remember the lip balm case that there's no deception here and that is i said that the fact that people will pay more for  a certification that something is free of forced labor or the fair trade products for example that shows that they either don't have an expectation or they assume that there is some risk absent that certification or that they are thought about or that they haven't thought about it but then for you we think it's clear enough and it won't be dispositive because you know just on the exclusive knowledge and it's even assuming that somebody said we're going to adopt the manufacturers even though they originate in common law fraud and they've never really been analyzed by anybody we're going to adopt those they still lose on the exclusive knowledge point under those factors just as the plaintiff did in the manner in the rubenstein case just recently this recent authority it was submitted to the court well i don't know if this would be helpful california are who purchased within the state of california these various products containing seafood and some of them are cat food and some i know that but i mean just that they purchased that doesn't that not that then that's but they sions own food all they don't allegedly fax saying that there was a reasonable expectation all they allege is that this is a terrible problem that was out there in the public and that that that's evidence that people care about this issue but but as i said the fact that it's out there so publicly and on the web sites undermines any idea that anybody has exclusive knowledge or that anybody here is being deceived there's no claim here that anybody said anything untruthful duty to disclose in all seven cases can also affirm all seven cases on the basis that the safe harbor doctrine bars plaintiff's consumer protection claims as the district courts in the seafood supply claims d in barber de rosa he use and worth the safe harbor doctor and precludes the plaintiffs here from bringing claims where the legislature has considered the situation and concluded expressly or implicitly that no action should lie that's found in three california supreme court cases starting with celtic and then continuing most recently and i mean in order to come to the conclusion that that's what happened here you have to get what we know what they ultimately did which doesn't preclude and if anything it has a savings cause of seems to say that other statutory causes a fashion survive it doesn't say it's just find to not just closeness and it doesn't otherwise address the question just says this is you have to do this one thing it doesn't say you don't have to do something else or your other i think it's clear from the legislative history  n the drafting of the bill that initially the legislature considered a lot more they considered requiring companies not just to disclose their efforts but to actually take actions to eradicate forced labor discussions and comments and notes as to why the legislature was was doing what our neither committee sought to happen now question legislature we don't know what they thought that's correct but the legislature made it clear that what allows consumers to make an informed purchasing decision the stated purpose of the act is is clear and then it's also clear from the legislative history that they thought that this would provide california consumers with general which is not otherwise supporting the plaintiffs pathways of the appeal that this is not the case well in this particular case your honor although courts typically do give afford some deference to the california general the case last clear that that's appropriate when the statute is highly technical and the agency was intimately involved with the drafting of that statute and neither of those is the case here so and if i ma statute here it doesn't broaden the scope of the conduct the legislature considered and made lawful or unlawful the inquiry under the safe part arbor doctrine is simply what conduct the legislature california supreme court you think we should also certify this a form of question or not i don't think it's necessary your honor because here we have the california attorney general disagrees with you right that's correct so i think we i think both questions are relevant to the ultimate answer way which would allow the safe harbor doctrine to apply here the court has three published ninth circuit opinions alvarez abner and davis all of which the facts of this case fall fall within the application of the safe harbor doctrine ok thank you thank you very much you save some time thank you on the issue of certification to the california supreme court i would say two things counsel said that collins didn't change the law but at least two district judges in the over case and the ricker case wrote a blank and i think with some clarity that they believe there was a change in the law and judge carter believes that there is no change to the law these bound by wilson so you have district courts down below confused we can and lightnin if there's something to enlighten about the question what but is there to light them back yes on the point i was trying to make if you feel as a matter of precedent that you can't overrule or modify wilson because you're another panel then i think the likely outcome here with the best outcome here given the confusion below is the certified to the supreme court to say that it's not outcome determinative it doesn't have to be yes it has to be that that's a problem because the what counsel said that the reason it might not be outcome determinative is that superior knowledge brought it seems to me that if this goes up what is the duty to disclose and omissions case the california supreme court is going to have to deal with when there's a duty and we believe there's a duty when it's material and therefore the marty factors are met so the court's going to have to look at the second marty factor superior knowledge in this case in order to decide this question for so how's the question asked that will give us the dispositive answer i think the question asked would be in a case where there is no claim of false representation a pure omissions claim is there a duty to disclose and has the will marty factor to been met in this case this is with with the allegations of your complaint as part of the question that's correct and what do we do with the safe harbor issue i think you you either wait or you rule in our favor because i don't think there's a cost question there as just assuming wrote in the editor case either permit the conduct which in this kind  has not been committed by statute or you bar the conduct this kind of has not been an action has not been the actions are part by the statute the statute is clear on that and you don't go to legislative history so i think the safe ar so you think that it is clear enough it doesn't we can answer that ourselves in the way that you would for the answer to be yes or if you really want more guidance from the california supreme court we would have no objection taken taken all of us are for the questions that's all i have yours ok thank you think both sides for their arguments and the cluster of cases the first one of which is barbara versus national usa and nestle purina now submitted for