morning your honors may please the court my name is roger pearl stet and i rip represent ms rose coulter owens and a certified class of michigan magazine subscribers i'd like to reserve three minutes of my time for  owns and the class members private reading information to exhume because time didn't sell the magazines to them at retail as required by the stage and it argues that it wasn't the retailer because it didn't interact with the class members and that it just delivered magazines that subscribers bought from times third party sales agents now times argument that it's not a retailer because it didn't interact with subscribers during the sale is wrong for two reasons first it's inconsistent with the mission supreme court encyclopedia company have the right to refuse or refuse the well the inside of the encyclopedia encyclopedia company had to authorize the sales but by the by the  they certainly did the third party sales as they have to yes i think they had to because the i'm sorry that's in the record yes in example of it's in the it's there's an example contract between  time and a third party sales agent magazines dot com that's on the record at one forty four dash seven and that's it that's an agreement between a third party sales agent their magazines are com and time and those agreements say things like you can sell magazine subscriptions as authorized by times explicitly authorized and those those agreements of different thing each individual's sale we have to approve not each individual sale but it but it it controls the  close it gets to say who its agent can be that's true but that's not i think there's a distinction between the encyclopedia in this particular case and that is on think the bigger point here is that i think you're right to to ask the question about control over the agents and i think what judge steve did is he talked about middle men and we sort of adopted that language but but but the the real question here i think i think the best way to look at this is through a lens of agency and we're the third party sales agents acting under the control of time acting under the direction of time acting for the benefit of time and so one of the reason i cite the world the case to display perhaps some some small factual differences is just to  counter the the argument that time is making that any time you use a third party sales agent like a door to door salesman like magazines dot com they're saying there's no way we can be the retailer and i just think that's inconsistent with world book so but you're right to to look to look deeply at the facts and the facts of what's going on and that's actually where we think the district court erred we think that there's a real factual dispute here as to what level of control time has over these sales agents and so and that's a factual dispute that  think the district court could not properly resolve in summary judgment and the fact is as i said looking in through the lens of agency or through the through the lens of middlemen whatever you want to call it whether these sales agents were really acting for time as we say our position our factual position is time authorized these sales controlled the sales and the and the these were agents just selling for time and their position is no these agents were just out there selling magazines and they told us what to deliver  immobile dealer you know he's authorized cars but but it doesn't necessarily mean for motor company has to say no but my understanding and i'm not a expert in auto dealers but my understanding is the dealers take titles to the car that the dealers are reselling the cars they take titles to the car it's not like dealers take orders for cars and then send those orders to time and say oh miss coulter owns just ordered a new car time can even control which particular representative's personnel the sales agents use to sell these magazines there's further evidence in the in the brain the brain injured deposition scott bridge of their executive vice president of marketing said these sales agents sell magazines for time and that they're not buying and reselling subscriptions like i think a car dealer would and one more piece of evidence and i think this actually really gets to the heart of the purpose of the statute is the fact that the transfer of customer information from customer to sales agent and then from sales agent to time is automated it goes through through f t p protocols mr bridger testified about the the automated process they get they get that that goes through and i think that gets to the heart of the purpose of the statute because this purpose of the statute is about protecting information and so in a typical wholesale agreement that would be resale agreement for ford can say sure dealer you can sell this car and the dealer sells a car ford may never know who that car gets sold to and so forth would never have that information but here time automatically gets the information they know miss coulter owns but people magazine  i'm sorry but time magazine bought fortune bought real simple and that's the information that the statute is designed to protect and time violates that statute by disclosing that information to axiom a data miner that that income she has this many kids at home she has this pet she buys these other kinds of products because that that information is is very valuable and so so again just  i'm i'm actually talking about the magazine dot com because i understand axiom is kind of your second level alternative argument and the question here is who is the retailer yes magazine com or or time and so that's where we're the question is whether this is more like the encyclopedia or whether the agreement between time and magazine dot com enabling the sale only point with the information transfer from from the sales agents to time is simply that the information rose culture owns by our wants you to sell her a certain magazine that's that's the only information i talk about so there's that dispute and that depends on the factual question basically an agency question where the sales agents acting under the direction of control for time selling magazines for time or were they selling them on their own with time just delivery so that's the every to a point that the second alternative argument with respect to x is they say axioms their agent and they say x you just houses our information that they just they just kind of do our database storage but that's not entirely true axiom does several things for time it does do some some don't i don't think we can rely on the kindle if i'm recalling kinda correctly that there was a motion to dismiss and i think the court the third party sales agents were an issue i think i think the judge just kind of made an offhanded dicta comment that if they were sure but for the statutory issue that's before us it has to be who was the retailer in this particular storm right in this is that your understanding of the requirement for my miners that there's no dispute that miss culture owns but magazines at retail that she bought them for personal use and so the question is who sold them to her in those here in the well yes but the point is who does she have the relationship with does she have a relationship i understand that i'm just trying to see if there is a more global issue about the requirement to be a retiree or because we know time is retired or but the question is are they a retailer in this circumstance magazine dot com and then we get into the particular factual things that you correctly pointed out one of the agreement between them would give the right to avail itself of choosing representatives or overseeing representatives versus the fact that  magazine dot com were the the sellers deal with the ayers if there's a question that comes to time time since back to magazine dot com right we think it's really your balance on why you think it rises to the level of the just beautiful material as i think the point the point is the question is when you buy from a position is when you buy from an age when you buy from a sales agent an agent  you're buying from time you're interacting with time and our evidence is i think part of i think probably our strongest evidence is the brain injury testimony he says we sell magazines or the sales we can sell magazines for time in the in the in the the  the the file transfers the automatic file transfers but i think if if we were if were permitted to put mr brain injury on the stand and explain how this stuff works who's selling for whom who's controlled by whom why sales agents are selling these magazines whether whether they can just sell magazines willing million and all they do is tell time to deliver them or whether times controlling them i think if we get for let's get brain injury on the stand present him with these documents and talk to him and put all of this in front of a jury that's a jury question and i think that's that's a real  question that the jury can answer and i see my time is up for now doctors with their major thank you may please the court jeff landis on behalf of time and i want to start with the same issue mr pearl's that started with which is the at retail issue and i want to be clear there's no factual dispute with respect to that issue there's a disagreement about the legal significance of undisputed facts and in this case judge he recognized that the distinctions or the facts that miss calderon's points to are a distinction without a difference with respect to whether or not time was the retailer in this case and i think a good example illustrates why imagine i go to my local hardware store to buy a lawnmower and the hardware store has craftsman lawn mowers in stock but they're out of but the salesperson tells me hey i can contact the toro i can contact toro and have them send you a tour a lawnmower from the where house directly to your house in that case is the hardware sure  retailer if i buy the craftsman one more but not the torah lawnmower of course not the hardware store is the retailer in both situations in both situations i pay the hardware store in both situations if i have an issue with my lawn mower i contact the hardware store and if i go with the torah lawn mower and it doesn't show up on my doorstep five days later i call the hardware store not toro and the same is the case here this  i think you're getting because it boils down to what do you feel in this relationship so what is the strongest to show that time is not a retailer despite its ability to say to a magazine no i don't want you hiring people want and i want to control the representatives you choose no you can't you can't sale except for this length of a sure so there is a overwhelming amount of evidence that makes clear that the third party seller is the retailer and that includes the resale agreements between the time of the third party itself which makes clear that the retailer the third party s evidence beyond just the label in the reseller agreement the resellers were responsible for collecting and remitting to the appropriate government agencies all taxes the third party sellers so here magazines dot com was the entity that that the purchaser paid the customer that purchased a subscription from it from a third party seller could not pay time and if they wanted a refund they couldn't get it from time to the extent the purchaser had a billing issue they would call  third party seller if they called a time time would refer them to the third party seller the same goes if the purchaser did not receive a copy of their magazine the declaration of karen simoneau and this is in the record that record entry number forty three one forty three rather so that in that case if the subscriber called time time would direct them to the third party agent the third party seller now of course in that case the third party seller may then itself go call time and say hey our client our customer is telling us they didn't get their magazine what the heck's going on but that doesn't make time the retailer and you anymore than it makes toro the retailer when my hardware store calls toro and says hey jeff didn't get his lawnmower d time is not the retail and that and the retailer and the third party seller was required to provide a toll free customer service number as well none of these facts are disputed they were submitted through the resale agreement and the and similar declaration and none are disputed now mr made some characterizations of the resale agreement about being about you know allowing an authorization and authorizing particular entities to be the ones to sell it retail and i think that doesn't take it out of that doesn't render time a retailer or the seller an agent it's like the lawnmower situation any entity that does not itself manufacture or produce something but obtains the right to sell it is going to have some has going to have to do it by some authorization and provide some consideration to the manufacturing and producing party that's just the way it works and i also want to be very clear about the scott brown in her testimony which i believe mr pearl's has said is the most important testimony and he said that mr bryan and her testified that that the that the third party sellers are selling magazines a time and i don't think that's that's exactly correct the question that was posed to mr bryan a girl a witness was are you talking about the people people that sell magazines for you and he said correct referring to these third party sellers so a lay witness saying correct to a question with a note which attorney embedded a legal promise and it is not any sort of admission or it's not evidence that certainly not evidence that countervailing the remaining undisputed evidence that these third party sellers were the entity that had the retail relationship with this class and i also think it bears noting that just trying to believe you said time is a retailer in some instances and i think that when you look at plaintiffs papers they agree that that's not enough and that in this case there has to be a retail customer relationship between the plaintiff and time and there is actually that's the kinda and that's what judge who said and there is actually a separate class action that these seem attorneys filed four days later on behalf of after judge he granted summary judgment on behalf of that group that purchased directly from time but in this case there is no dispute that these plaintiffs purchased from the third party sellers now world book mr mr prosser talked about world book and i think world book was a very different case first of all involved in an entirely different question the question in the world book was where a particular transaction was consummated for tax purposes and the court found that that was illinois where world book put or put out door to door sales people to sell its worldwide product and world but had to approve individual purchase transactions payments were from the purchases paid world book ok none of that is like the case here time didn't descend out door to door sales people time didn't approve individual sales to read to customers and time didn't receive the payment and i think it's interesting in the case of miss coulter owens particularly the name plaintiff in this case she paid two dollars for each of her magazine subscriptions to fortune real simple and time zero cents of that two dollar was even six dollars total was even remitted to time magazine timing zero and i don't think it would change the calculus of whether or not time was a retailer if fifty cents or a dollar per subscription were remitted to time but i think the fact that in many of these instances with many members of this class time didn't even get any money out of the exchange just further confirms that time was not the retailer now mr president talked a lot about how view of the p p a is meant to protect the privacy of individuals or privacy of magazine readers but the p p p is not meant to encompass every single way a person can come to possess reading information and every single person who comes to possess reading information is targeted at a very limited set of circumstances a retailer customer relationship and in two thousand and sixteen michigan legislature actually amended the p p p and in that case it could have expanded the scope of the statute to cover for example any person who comes to possess a personal rating information ok this was after judge and judge ludington issued their opinions stating that the statute as written only applied to retailer customer relationships but the michigan legislature didn't change that they left it as is farming the commonsense reading of the statute which itself requires and uses the word customer three times in the main provision and retail once and customer throughout the statute if it were operating reading material and in this part of the pleading with the names of these people were provided to access and why one for the purpose of collecting and the co op is collecting all this other information about me and my family and then is able to share it with all of everyone else who is a member of the cult isn't that s was the judge bork situation that led to the statute but i think the important judge bork situation was videos wasn't it good video you know that the public has no right to know what he chooses view and isn't that isn't that much of what undergirds i don't understand how that cannot be what undergirds this and that the axiom relationship and the while in relationship  are exemplary of the problem now by might not be it might not be covered so there will isn't it i don't understand how you can argue that it's not the issue that undergirds this because it is that dissemination of information that is the concern in fact so so i think that you're not incorrect but i think that the notion and the impression you're getting about what axiom does and sort of the nature of the use of action while and  important and understand what in this case axiom does here axiom is a database host and they host times consumer marketing data so that when time wants to market to people and they want to market to people who are a certain age they can type in a couple of co op would place name would transfer files to the cop so for example if fortune was participating in the co op it would just send its list of of fortune subscribers to the co op but once in the co op the net data was completely  that is an option what i do know is that when time provides information to go into the co op and again let me know if a customer ops out or if a subscriber opt out of disclosures their name is not provided to weiland and if it was provided to weiland it pierre the p p a was not meant to be an all encompassing privacy statute it was meant to apply to a specific specific situation and the reason it was applying to the retailer customer situation is because it's the retailer who is the person that makes the disclosure in the first instance and the retailer who is it in the in position to get consent in the first instance and i think here it's telling that  argument they argue well the opt outs that time gave are ineffective because they didn't get the opt out at the time of subscription but that's the whole point time as miss calderon's conceded time couldn't have gotten any consent of the time from scription because they want the ones with the retailer relationship with the customer or the with the subscriber and because the veep r p i requires that relationship that's which plaintiffs don't dispute because the undisputed evidence in this case is clear that no such relationship existed between time and this class judge these decisions should be affirmed thank you thank you thank your honour's just just i think two quick points i want to make here first judge branch raised to be the concern of the statute of the purpose of the statute and i think i think the biggest problem with time's retailer argument is  under their view of retailer their view that they're not a retailer they can disclose to anyone they could disclose supposed judge bork or a future supreme court nominee but a magazine through magazines dot com or another third party sales i'm not a retailer i can go out and tell the washington post i can tell us it is a i can tell the news media what judge bork or what this judge reads on a daily basis what magazines he subscribes to whether he subscribes to people or sports illustrated or or other kinds of magazines  and so that's what i was trying to get at with the with the transfer of information point earlier that that time gets the subscriber information automatically they know this information in order under my friend's theory here  it doesn't matter it just doesn't matter anything else after that doesn't matter and either under either version of the statute if they're not a retailer they can disclose this information to anyone and the second point i'd like to make i just i think i think my friends argument basically made our point about the factual dispute he stands up here and he says that's not exactly how extreme works that's not exactly what mr bryant injured testified to that's not exactly ask that you reverse the entry of summary judgment in favor of time and remand for further proceedings thank you think your case will be submitted nothing