connection with products that are tainted by forced labor and the last notice that came out from the court the court asked us to be prepared to address the most recent decision which is the will call the mors decision which came out a week ago on june fourth i would like to start with making some points about that case and how that is distinguishable from the case at bar here today if we can properly capture the pleading contains allegations of affirmative misrepresentations and in fact the trial court itself down below noted that we had made those allegations are they talk about the code of  conduct that's one of the things that we're talking about yes and it may address that specifically but i guess the question i have with respect to that is is it more reasonable to see that as an aspirational statement as opposed to an affirmative misrepresentation my response that is no it's a matter for the trial court to decide it's a question of fact as to whether or not that is aspirational or whether it's misleading the history of the california consumer statutes are very clear that courts of any kind should not be imposing their own personal standards as to what is fair or unfair aspirational or otherwise we never got a chance to get out of the box and to show that it's not aspirational so to get to the to get to the nitty gritty of the false representation our position is that the code of conduct along with other statutes scuse me i misspoke other statements lead the reasonable consumer to believe that there is no tainted seafood in their supply chain and i would just as an example i would refer to the first sentence which of the document which i think the court is considering entitled costco disclosure regarding human trafficking in any sleep in the  first sentence it states costco wholesale corporation has a global supplier code of conduct which prohibits human rights abuses in our supply chain now to me to my reading which may be different from other people's but to my reading that's not aspirational that's a statement that says there is no taint in our supply chain and the very essence of the case here unlike moore's which was determined to be strictly an  mission case is that costco was representing to the public that there is no team in its supply chain and this leads i guess to somewhat of a policy issue bell as the recent cases have noted that what is actionable under the consumer laws of the state of california has been in a state of flux let me ask you separate from the what evidence or what allegations were made that your clients actually relied on any of these statements while your honor as i read the moore's decision the issue here is  that case holds we have played a cause of action because in the future well let me back up and answer your question directly under the law it's reasonable to assume that when that consumer reads the package they've read the label ok we we have not pled that prior to the filing that the plaintiffs here read the website they certainly have now and i do believe it's decided law that under the moore's decision and other ones that you can state a cause of action for future purchases in other words as a person that wants to purchase prawns in the future who belongs to costco which is by invitation only business where you have to have a card and go in she wants to buy prawns and she wants to have the right to  buy those problems with the confidence that she's not suffering from a misrepresentation so i believe that is an accurate statement of the law and i believe that that was the holding in moore's that injunctive relief is available for future x that's putting aside the issue of the loss of buying that product from that was tainted unbeknown to her i believe if i've lost the question i want to be careful to stay with my rebuttal time i'd like to reserve five minutes but i would like to further respond to the question about misrepresentations it's our position as set forth in paragraphs nineteen through twenty two that costco is is publicly stating that it doesn't tolerate slavery and that supply chain we have allegations in this case that that's not true and under the california consumer laws at the pleading stage that is actionable i'd also like to refer the court to paragraph one ninety five through  one ninety eight in the first amended complaint it's not just an issue your honor of statements although that's certainly part of it we have alleged a much more factually intense relationship between costco on the one hand and c p foods and the team did supply what the previous chocolate cases were referring to was just very strictly you didn't put it on the label that said we've alleged that costco and c p foods due to the nature of this industry involving things that happen far out to se they are actually up holding this illegal enterprise by being one of the largest market makers for seafood and that in addition to the the statements that they're making they understand and know that there are exclusive knowledge that because of their market power they are actually inadvertently certainly not intentionally continuing to allow this  horrible system to exist what is the california case with respect to your argument on affirmative misrepresentation what is the what is the closest california case that you rely i would go back to sell tack and i think it's very important here that we do have an issue here where we do have california state law and the ninth circuit is trying to grapple to come up with its best assessment as to what the california supreme court would hold we know from the exhaustive briefing that it's certainly our position joined by others that collins and rutledge or intermediate opinions which  allow this court to hold that where there has been a misrepresentation coupled with an omission that that's actionable under the u c l and in regard to your question your honor ok you're looking for a yes or no answer and i think in this context the answer would be no because in your example that would be one lone actor within a corporation and we have to understand that within the business world there is always the possibility that there could be one person that's involved in doing an illegal activity that's how these any corruption cases come out with foreign contracts in this case however the costco machinery and i use that term loosely not literally is engaged in in importing billions of dollars worth of seafood and i would point out that recently while our case was pending meant to the tariff act of one nine hundred thirty so i believe it's now section three zero seven prohibits the import of goods that are tainted by slavery so in answer to your question i don't see it as either comparable or feasible that somehow with this amount of commerce that costco is not aware and frankly in the allegations which are quite detailed we contend that costco knows exactly what's going on thank you i'd like to take reserve my time at this point and try and come back to your honor's question about the best case thank you he's not trying to argue that the rationale the central holding of mars doesn't apply here which is that there's no duty to disclose in last the omitted information goes to the central functionality of the product  rationale applies in spades here and i didn't hear any argument from counsel disputing that point it's the same duty to disclose as being alleged in mars the other cases that were consolidated  and in this case and i think the only reason this case wasn't consolidated with the rest is simply that the motion to dismiss the ruling on the motion dismissed didn't come until six or eight months later than in the other cases so let me address the argument about this case is different because it involves misrepresentations we heard this morning an argument for the first time literally in this case it wasn't advanced in the district court was an advanced in the briefs in this court which is that even though they didn't see it they somehow still have a basis for alleging that there was a duty to disclose premised on this alleged mistress and taishan and i'm going to explain in a minute there really wasn't a misrepresentation that as the court can see if it looks at the code of conduct itself but before getting to that the cases are clear that in by the cases i'm referring to daniel versus ford motor a decision of this court which said in the central element for fraudulent omission claim is actual reliance and this court in the maza case maza vs american honda said that even under the u c l there's a requirement that you actually have seen been exposed to the alleged misleading representation so here theory is that there was a representation that absent further disclosure was misleading and therefore the further disclosure was needed because somebody could have been misled by the misrepresentation we'll hear if they didn't see it they couldn't possibly have been misled by it so there's no predicate for imposing the duty to disclose and that that point was not disputed at all in the district court in the briefing in this court so we believe that  the argument that the the plaintiffs can assert a duty to disclose based on an alleged partial representation has been waived but but to address that this new argument which we believe has been way waived the their argument is that i think what they're doing is they're mixing up the standard for from discourse decision and davidson about injunctive relief when a plaintive can seek in relief with a duty to the duty to disclose in the first place and when a party is actually alleged in fact article three standing and as i just pointed out the work you haven't seen the representation you couldn't have been misled by it no duty to disclose therefore could arise there's no deception there's no injury and so they're there they don't have standing to be in court on that kind of a claim to begin with  so i think not only is the issue waived it's just the argument waived i mean it's just incorrect so that's that's the the first reason why this case is not different from mars when mars as it was in the emissions case this case is also an emissions case for that reason but then addressing the point the let's say they had seen it addressing their argument that there was a misrepresentation what they're relying on is the code of conduct they say is there were other statements they don't allege that they saw the other statements they don't even allege what the other statements were the district court therefore rejected that argument on that ground and again they haven't challenge that point at all so their argument about the code of conduct is this is paragraph nineteen of the first amended complaint which is that he or one ninety and one ninety one and if you put aside the characterizations of that code of conduct and look actually at its language i think it makes clear the point that judge gould was making there is no misrepresentation here the first sentence that counsel quoted the cosco has a supplier code of conduct which prohibits human rights abuses in our supply chain there's no allegation that cosco does not have a supplier code of conduct that prohibits human rights abuses in its supply chain and i think what he's arguing is that that's some kind of an implicit representation that because costco has that code of conduct therefore there are there are never any instances in which this gets to judge schools question you know in there's a violation by that code of conduct and keep in mind here that what we're talking about is not cosco itself not his direct regain that member of the panel if you go on and read this statement it addresses the iran of the very point you're making which it addresses what happens when they are when they discover violations of the code of conduct and what cosco says is that it will respond in a manner that's commensurate with the nature and extent of the violation it may result in with terminations of the business relationship but that cosco may allow a reasonable time to develop and implement a plan to over remediation and to stop the conduct in general cosco says we prefer working with the supplier to correct the violations rather than immediately terminating the relationship and i think any reasonable person going to tolerate this kind the point is we're going to work with our suppliers to try to remedy the problem and that is indeed what the the the complaint alleges the complaint alleges that this that there were public reports in june of tw initiate a task force to address this issue so i think that it's you know the allegations all are consistent with that code of conduct being an accurate representation of what cost goes position is with respect to these mistreatment individuals in the slave labor industry that explain to me why that doesn't matter or doesn't well i think it's important to look at the allegations again i mean the assumption here is that because there are reports of fishing vessels in waters off of thailand engaging in human trafficking and slave labor that therefore all of the prawns coming out of thailand  fish caught from some fishing vessels and there's no allegation i don't think there's any basis for even thinking that every problem that comes out of thailand is tainted by whatever degree of hum trafficking and slave labor is occurring of some of these fishing vessels out there and that's that's the assumption i think that and that upon which is argument is resting but it's not supported by the allegations of the complaint and it's not supported by the facts what he said what the leap that they're making is that because costco continues to sell prongs that were sourced from thailand that therefore costco is continuing to  indorse and tolerate human trafficking and slave labor in its supply chain and there's no facts for that just not in the complaint and and this has been a central issue in the case from the very beginning and they haven't allegedly amended the complaint they still haven't alleged those facts so i don't think that there's a reasonable basis for saying that this supplier code of conduct is a misrepresentation and i'm on this point i think there's also there's a there's a further important point to be made which is you know we've argued in our brief that this california transparency and supply chains act creates a safe harbor and for the reasons in the brief i think that that argument is correct maher's case didn't need to reach it this court doesn't need to reach it in this case but even putting aside the safe harbor point what they're trying to do is take this mandated  requirements of that statute and so cosco is required to state you know what his code of conduct prohibits and doesn't prohibit what kind of auditing procedures it hasn't doesn't have and what kind of actions  takes when it discovers issues or learns or is told about the issues in its supply chain that's what cost goes down here and i believe it's done so accurately and plaintiffs are trying to turn this mandated disclosure into a misrepresentation  must monitor what's going on in state legislatures in california is a big legislature big state is there any anything going on in california to try to beef up their disclosure laws consumer disclosure i can't speak for costco your honor because i haven't actually spoken with costco about about that issue i'm i'm not aware of any effort to you know amanda modify the transparency in supply chains actor don't pose other disclosure obligations i do think however that that is an important background point for this case and for the mars case and the other cases that are raise rise in this area it certainly is true that that legislatures congress state legislatures they can and have imposed duties to disclose including about supply chains issues the california legislature as an act of the statute we've been talking about the food and drug you know laws regarding nutrition content labeling so there's there's there's lots of duties to disclose with respect to products that legislatures have imposed and subject of the first amendment you know those are those of those are valid and companies need to comply with them and that really is what these lawsuits are about the trying to use the california tort laws and the california consumer's deception laws to impose the kind of you know nutrition content labeling impose those kind of obligations on companies that are selling products and that the the reason why i believe marrs came out the way it did and the way these other cases they've all been limited to product the facts and issues that go to the central functionality of a product is that that's the proper domain of the kind of consumer education consumer lightman we're going to use disclosures to try to force social change that those are consumer deception issues those are issues that relate to as i say consumer education or trying to use disclosures the conflict free minerals regulations for example that the f c c has adopted to use disclosure and those by the way have been overturned by the d c circuit but even there it was a legislative effort not an effort to use consumer deception laws and there's just never been this conception that consumer deception was imposed the kind of duties of an on a company to lay out in the kind of detail that the plaintiffs are talking about you know the various issues that they want to have laid out and i don't want to side again on the misrepresentation where i don't believe there was a misrepresentation i don't believe that the complaint can be reasonably read in that fashion but the fundamental reason why that by the plaintiffs here should lose on that point is that they didn't allege they did they ever saw it they never challenge that ruling in the district court they never raised it here  in their briefs on this appeal and then finally your honor  there council mentioned well this case is different from ours because the cost goes a bigger into d and it has market power you know that doesn't really go to the central rationale of mars one it's not really factually supported by allegations i mean that the chocolate man's and the sellers of chocolate in this country have any less significance in that market then costco does a seller of one seller of problems in this country but two it doesn't go to the the central rationale of the mars case which is that a duty to disclose is limited to the central functionality of the product and there's no claim here that that we're in that ground in that realm thank you there any for the question no question thank you thank  as i expected my colleague in the on the other side of the bar has given me a lot to reply to very quickly  with regard to the cases that you asked about that we felt were ones that the court should look at the sony gaming networks case and tape t a i b s at home b a b s h home which are cases standing for the proposition that omissions are in fact that actionable and i do believe we brief that just to try and come back and give a couple of quick hits as it were to  points raised we did not hear costco's counsel say that they have a limited taint from their supply chain and that goes to the very essence of what we are saying is that they're making statements that are inherently misleading because they are incomplete it's not just a question but how does it go to the central functionality of the product that particular taint or misleading sleep while i believe the central functionality line of cases which really have to do with product the facts are not a political to this case that's our position and the law is not static in other words if you have a line of cases that have to do with defects in a product such as a laptop or a computer that's a totally different kind of case than this one which is that we have the most reviled illegal act on the planet and they aware of the fact that they're buying a direct by product of that system and it's obviously in the state interest and the interest of consumers and the interest of consumer law for consumers to get a fair opportunity at the point of sale what was on mars was on mars addressing the same issue now it was not because mars is just simply silence argument in other words you didn't say they didn't contend that chocolate manufacturers made partial statements they simply just said that the holding dealt with the question of central functionality of the product and it was the same issue with respect of slave labor in that case right our case is different again the pleadings are different if you line up the mars complaint in our complaint they're very different so no the central functionality does not apply here i wanted to get to just a couple of quick points we are not seeking to somehow below her a bright line which is what the court below said that we had to he was worried the court was worried that there wasn't a bright line for manufacturers we're not talking about nutrition here we are talking about something that even this court has found that sleep is a material fact which will dissuade a consumer from making a purchase i'd like to quickly because i'm getting to my last minute here point to a december two thousand and fifteen statement which appears to be a press release stating you may have read or heard about a lawsuit filed recently concerning our sale of shrimp from thailand and it then goes on to explain things that it does with regard to sleeve three that once again is a partial statement that is misleading i'd like to point out that we were the first filed case in this litany where the we were the first filed case people filed complaints after us that were kind of like ours but not exactly we deserve an opportunity to go back to the trial court below and to amend our complaint under the new standard which explains that misrepresentations which the trial court disregarded are either actionable or not actionable we deserve an opportunity to go back and beef up our record on on that kind of thing we've been we filed a case and now the laws changed underneath us and we deserve a chance to remedy that and i'll leave it i've got to look before we get to that last point yes like an opportunity if the panel which is to give it to both sides can file a supplemental brief on the impact if any simultaneous letter briefs or simultaneous briefs no more than seven pages to be filed within twenty one days and will enter an order to that effect that acceptable yes thank you very much for your time today case just argued is submitted for decision