good morning my name is piers score are represented pellets alex cosson and adam victor i'd like to reserve three minutes for bottle may please the court davidson provides us with binding guidance in three ways first davidson defines the injury that gives rise to article three standing to seek injunctive relief when a consumer is unable to rely in the future upon a representation made upon a label even if the consumer knows that the representation was false in the past this is an ongoing injury but the customer in davidson said that she was going to buy the product again and your client said they were not mr costin and mr victor both said that they would consider buying bigelow tea in the future if the court entered the injunction the both of them were  seems to me the really difficult part is that the this is a challenge to the label not to the fact that the product doesn't have the supposedly helpful material in it  right it's to challenge the label it's both it's both the f d a any oxidants became a powerful marketing buzzword about ten or twelve years ago but the f d a recognizes that there's nothing in t v that delivers any antioxidant benefits right so it's a challenge to the label that says that there is that's right so this perth so then they take this off the label and the guy says he won't buy it anyway correct so his problem isn't the label his price isn't that he can't believe the label because the label isn't i understand i'm not talking bonus but in terms of whether he would buy it without the label he said no right all right  therefore his problem how can it be that he is challenging the has the problem of the person and davidson which is i can't buy it with the label because i can't believe the label having at that and fact the label it could be that they could affix the product today that said that he still couldn't believe the label right but here there is no label at this time but he still won't buy it so why isn't that still a man well for two reasons one rule twenty three imposes stringent duties on class representatives one of those duties is to do whatever is in the best interests of the class regard to us of the plaintiff's personal beliefs about the label the presence of it or the absence of it and pursuant to that duty a class trip would never abandon a claim that would benefit the class confused by your answer that he's strategically answering the questions to be a good class threat because he has to tell the truth right and he has to show he has standing so he can not tell the truth about whether he's going by this project not in order to try to be a better class rep used used telling the truth and he wants to buy the product in the future he enjoys the product and he's willing to return to buying the product but he wants an injunction in place because bigelow's label change was purely voluntary bigelow has never admit ever say that he enjoyed the product i mean that's really the fundamental question here he clearly made a representation in fact you can read it i feel lied to this is victor i feel lied to how can i trust the company he's clearly expressing what i consistent with the davidson case that's fear of an accurate invalid label but at the same time he's also really reluctant to say that he would ever be interested in buying the product back and isn't that isn't that essentially a problem both costs and victor testified that they would consider buying bigelow tea in the future or one of them said no and then came back after the break and said well i'd consider it but they're clear the clear assertions were that they were not really interested in buying the product in the future well their testimony which appears in the record is that they would consider buying it gotten the injunction if they were entitled to an injunction even if they would have bought the product without the label but they still wouldn't buy the product without the label when it existed because they said i don't trust these people but what are they trusting when there is no label i mean the whole thing becomes a huge circle it does become a circle because without an injunction bigelow is free to put a great light in the on while there's no label right but other class members don't know what these plaintiffs now know and they're trying what is the difference there's no label right now and if and and as you say the case would be moot because it was a voluntary says sation so in terms of getting the injunction it has nothing to do with getting the injunction whether they would buy it in the meanwhile without the label but they went by without the label that's pretty good evidence that they're not interested in the label they're interested in buying the two they want to make sure that it's truthfully  when you buy it now without the label no i won't they are willing to buy it unless there's an injunction in place to protect them and other class members but that this is not about whether they're going to buy the team with the label that it's not about the label they don't care about the label i mean that suggests that there man you're fact they're trying to somehow manufacture standing in order to be a class rep and you can't do that you have to actually have an injury and you have to be able to testify obviously to it there's no need for them to manufacture standing under davidson the moment a consumer is unable to rely on a representation on the label that's enough for standing before a lawsuit is ever filed and that we would submit that davidson defines an ongoing injury if someone is unable to rely on a label whether the label has been voluntarily changed or not  the case or controversy of them are not met in the context of the u c l claim didn't your client say they weren't relying on the label anyway it was all about this technical f d a violation and that's why they didn't have to show reliance under the u not that type of claim it's both they like the antioxidant labeling while they were buying bigelow tea and then they found out that there's nothing truthful about it but they claim that they didn't have to show reliance because they're not really claiming that they're claiming this other kind of technical violation so i'm not sure how you can have it both ways i believe they testified that they read the label they relied on the label and then they found out that the label was untruthful and unlawful well you could have or injury doesn't have to be exactly the same as your legal grounds that's right but even under davidson it's if if the person looks at the label and  afraid of the label feels it's going to be inaccurate even the court in davidson suggested that that was not enough because they essentially said this is a close question and it's clearly established in davidson that the that davidson  not see did not give full credit to the label that still remains a close question which suggests that our responsibility is then to look at the individual facts to see if really above and beyond the fear of the accuracy of the label there is some other aspect of the harm well that's right in davidson the court ruled that were standing is premised on the threat of future injury i'm quoting we must not employ too narrow or technical an approach in assessing standing and i submit to you that when a consumer discovers that they can't rely on a label and they file a class action seeking public injun e relief that it is perfectly appropriate for that consumer to seek an injunction at every stage of the proceedings class or no class because they don't know how the case is going to turn out and there are tall perfectly true that's why i have a problem with what you're saying because they could get the injunction even if they had my understanding is if they had said sure now that there's no label i'm going to buy this team but i still want my injunction that would have been fine right well because what i want is an assurance that that injunction that that label transfer liable is going to come back because i want to keep buying it that would have been a coherent position at the time these plaintiffs filed their and twelve and at the time they gave their depositions and twenty fifteen as the court pointed out in davidson the courts of the northern district were all over the map on what a consumer had to plead saying again that there are there crafting their testimony in order to fit the law they're obligated to tell the truth and they're what they said which we have to assume is true is they're not buying the product even without a label i don't i don't think there's any  evidence in the record that these plaintiffs didn't testify why are you telling us that the northern district cases were a mess and i'm telling you that because it was unclear at the time to these plaintiffs and to counsel exactly how to proceed so these plaintiffs it doesn't matter what i have saying it was really unclear to us what we should say to have standing to proceed with this case and the answer to that is you should tell the truth and they did so then they have told the truth that they don't buy this product without a label and that defeats their claim of injury doesn't it no it doesn't defeat their claim of injury because under davidson their injury is ongoing until redressed the controversy is not it has to be imminent and it's not imminent because they've said they're not buying the product anymore it's imminent because bigelow could return to its unlawful labels at any time there's no legal prohibition on bigelow doing so but they have said we're not going to keep buying this product we're not buying this product that's different than the person in davidson they said we're not buying a product until we have an injunction which means there's nothing imminent here because they're not buying the product well david somers resolved on the pleadings this cases was resolved on summary judgment we have a more fully developed record and these plaintiffs testify truthfully that they are consistently seeking an injunction but they don't trust the label that they can't rely on it and yes they stop buying the part of the defendant and davidson why's that because the label is was untruthful these people should know what's on truthful and therefore they can't be fooled anymore one response to that is well how do we know it continues to be untruthful you might fix the product in the meanwhile the problem right in other words long as you still have this label on there we can't know what your buying because in the past it was not a flushable wipe the now it might be a flash of a white but we don't know what what's what this label but once you take the label well the case is about the label the label concerns any accidents food companies change their labels all the time for lots of reasons and there's nothing in our record that would prevent bigelow from returning to it's all guess is that what you're seeking in which case what's the difference between ripping off the antioxidants and the injunctions just say i would expect that the injunction would track the language of the f d a regulation and it would prohibit  any reference to antioxidants that violate the federal regulations i think it would look like that ok thank you your tie and it will give you many and fifteen fourteen seconds thank you so much thank you this court should affirm summary judgment in both the case and and victor matters because there is no evidence of concrete certainly impending and unconditional future harm as the united states supreme court held in lieu hon standing is not an ingenious exercise in the conceivable but instead of the summary judgment stage it requires a factual show showing a perceptible harm so it quires more then so that it requires the plaintiffs is to submit evidence that they are likely to be harmed in the future rising above  speculation and vague desires about possible purchases that may occur sometime in the future turning to davidson davison's distinguishable from the facts in this case as counsel pointed out this case is on summary judgment davidson was from the pleading stage and davidson made it very clear that there is no evidence in that record that discounted play that plaintiff stated intent to purchase the products in question in david's in the court talked about this eminent and certainly impending harm which was the inability of the consumer to tell whether or not the label was true or false so in my mind i picture miss davis in going to the store and she testified i actually put into her pleadings that she desired to purchase the product so she goes to the store and she talks about that she does that often every time she goes to the store she has to run through this mental exercise of does this label mean what it actually says and every time she does that there is this alleged ongoing injury when you compare that with then doesn't the on the court and davidson say that the real injury the future injury which justifies injunctive relief is a century that you cannot trust the label and as a result of the plan it was seeking to is get an injunction to make sure that they can respect the label in the future so the harm is the find fear of an in accurate label the or is that not right i agree with your honor but when you compare it to the testimony here by mr case and mr victor when those two plaintiffs go to the store that they see the bigelow tea products on the shelf they know that they can't trust that label well because all right s they can trust and therefore they're going to if they had not said they were when buying it during the period when there was no no and hassen as i suppose they said yes we're buying it now but we still want an injunction because store and they said i desire to purchase this product i can't understand what the label says and they meet the cough cations of davis and then yes they would have said they would have standing but that definition is not just the label itself but actually in addition you have to show that there's not likely to be a purchase in the future correct davidson requires in addition to a desire to purchase the the products in the future but this fundamental misunderstanding that you can't trust the label or justification for standing is not simply i don't trust the label i need protection to make sure that the label is going to be accurate in the future by seeking a jump to believe that doesn't establish future harm for purposes of an injunction you need more than that is that what you're saying david since us that's correct your honor because when mr victor goes into the store to purchase this product he's not looking at the label to determine whether or not it it's compliant with the f d a regulations what he is now looking at is do i have an injunction he's not going to purchase that product no matter what the label says and he specifically testify that that's how we are different from david's and he specifically testify that i do not trust this company i don't trust this brand i'm not going to buy it in the future i don't care what the labels say i'm not buying it the only way that i buy this product is if i have an injunction now what the terms of that injunction are what that may be is all up to a third party court so there is no mental wrangling there like there is with davidson who goes in to the product and say i really want flushable wipes maybe these wipes are compliance these plaintiffs that testified very clearly that when they go into the store they're not buying that product they have no desire to purchase this product in the in the future unless and until there's an injunction and that's a contingent contingency that may or may not happen in the future that we know that the reason why all of this is so disturbing is because this is all under california law and we know particularly after  least once they they say they would have they wanted to buy this but the end at the end they bought it but the label was inaccurate so they would appear to be it under california law able to get restitution at least for that one purchase and injunction because they don't have to show anything more in california to get the injunction i would agree with everything except for the fact that in this case the district court has already determined that there are there is no ability of these plaintiffs to prove damages so they can't get ryan they were on both the order to one class or and also on the order for a motion for summary judgment the grounds theory that was acceptable within which to prove damages and the theories that were put forth by plaintiffs was that the product was legally worthless so their damages were the difference between what they paid and zero and the courts upheld that that is not a viable remedy and so that was that the this insistence on what's really you know angels dancing and heads of pants in terms of what their interest in the future buying of the product is  is disturbing because it all depends if this was a california company and there wasn't a first day the whole outcome would be different because they've been california court i just disagree and the reason i disagree is because all that is currently pled and the only thing that is moving forward as of today is a claim for injunctive relief under the there is no class action class has been denied plaintiffs have waived the opportunity to challenge the class action there are no damages so say there when you then remove it as the federal court immediately the question about injunctive relief becomes in dispute and in fact to your theory they can't go forward on injunctive relief so essentially doesn't that suggest it also true that if there's no standing in federal court then there's no jurisdiction in federal court and they can bring the case in state court and you can't remove it even if you try to because there's no jurisdiction in federal court so it gets real litigated in state court isn't that actually created at this case been filed as it's currently procedur styled there would be no way for the defense to remove this case a federal court is based on injunction there's no damages you don't have diversity jurisdiction of the seventy five thousand amount controversy and you also don't have jurisdiction under the class action fairness act so this case could have and probably should have been brought by plaintiffs in state court and there is nothing that defense could have done to remove the case to federal court to take advantage of the article three standing and that's true of any case that it needs to be removed if you try to remove a federal court mr costin's case and with threats of the specific gamut evidence that he presented there he testified that he would consider so again we don't have a definitive intent to purchase in the future it's just he might he might do so under three conditions when you have an injunction to yes we receive reasonable assurances that the product was in compliance with california law and number three compensation he requires compensation for the harm that has been sustained by purchasing this product as we've talked about these three conditions really create a chain of speculation chain of speculative possibilities that may or may not occur in the future moreover he hasn't even testified that he would or he will purchase the products if these three conditions even take place so it's this  speculative a desire to purchase the products someday in the future which has been held by the state supreme court to be insufficient but right to focus on the compensation aspect of this to the compensation part was never presented to the district court that testimony  was was dug out on appeal and presented for the first time on the idea of what compensation the testimony that mr costin would purchase the the product if he was compensated for the harm that that testimony was not presented to the district or it was presented on appeal it was part of the record before that that's right it was he wouldn't he wouldn't buy it unless you have an injunction yes that he needs an injunction compensation and reasonable assurance is when you look at all the testimony that he provided whether it was in his declaration or in his deposition testimony those are the three things that came out of that but he wants compensation before he ever would buy the product in the future exactly your honor and he can't get compensation because the district court has already decided there's no damages and more importantly in this appeal he didn't raise damages or that there was an error without finding a road somewhere the mr case was in fact using  that there is no possibility by which he's going to purchase these products that would satisfy the article three standing as to mr victor mr victor specifically said i have no plans to purchase these products in the future and he he supported that was rushed out that he doesn't trust the company and he feels like he's been lied to but he said that in that he can then there was a break and then he came back and said well i would if there was injunctive relief i would buy it i would consider buying it if there relief absolutely correct your honor after a break he came back and then basically provided testimony that was inconsistent with what he had provided before now there is nothing wrong here district court looking at testimony that is inconsistent by the young by the same party and disregarding the testimony where he comes back and changes the testimony unless of course there is some explanation for why he changed the testimony and here there is no explanation given moreover it doesn't make any sense because mr victor also testified that he would not purchase the bigelow tea products even if they change the label so if he gets that injunction which presumably is going to prevent they go from changing the label he was shown that bigelow in this case actually changed th label and he's still not purchasing the product so this contradictory testimony is is appropriately disregarded by the district court in granting summary judgment and without unless the court has any further questions for me thank you for the discussion  respectful of your honors davidson changed the definition of article three standing to seek injunctive relief in the ninth circuit as judge burns on his pointed out there's no article three requirement in state court these plaintiffs could seek an injunction to show economic damages the question is whether they did and he apparently was how you didn't appeal the role in the potential economic damages that's correct that's correct there were there were a number of appeals ongoing at the time and these plaintiffs theory of economic damages has now been decided against by the ninth circuit in brazil v dole and that's why they were pursuing economic damages at the time but davidson provides a definition for standing that takes place before a plaintiff ever goes into court these plaintiffs costs and victor had standing at the moment in time that they became unable to rely about in your section of your brief about the reasonable consumer test you talked about how his claim requires no proof of deception so it seems like you're saying you don't actually have to have evidence that he was deceived i'm really confused about your your theory here of how he was harmed i'm sorry no that's the question all fraud based claims of course require proof of deception but the ninth circuit recently ruled in britain v gerber that because there is no reliance element in the federal regulate in the f t c a the sherman law the underlying regulations that there's no there's no proof of deception required under the unlawful prong claim and that you see i have to prove for standing that they were injured yes were they injured they were injured under davidson at the moment while the label was still on there when they became unable to rely on the reliance is a factor yes but you said i think you're backing away from the idea that they did realize that you're claiming that they relied on the label ever they relied on it until they found out that it was false and unlawful so what you're saying is that there is a reliance element but there is not a reasonable consumer element different what judge for him that was asking you about was whether this particular cause of action with regard to the technical requirements of the f d a for this  mean presumably then it know anything about these requirements of the time they were buying the stuff i think that's right so they weren't relying on the fact that met all of these technical requirements they were relying on the fact or they were concerned about the every reasonable consumer who walks into a supermarket believes and relies on every label on every food product in the store assuming that it has been vetted by the f d a ok all right thank you