yes your honor great and i take it you can both hear each other fine yes yes right very good so mr webb i understand you had ten minutes of which you would like to reserve three for rebuttal is that right that's correct very well would you please proceed yes indeed may it please the court adam webb here on behalf of plaintiff appellant choice beer shop which is a mom and pop business that signed up with c merchant services for debit and credit card processing this case is about the annual fee that was assessed against choice but also against over one hundred thousand dollars other small businesses in violation of the plain terms of p and c's contract not the political new york statute of limitations is six years so simple math tells us that this case is really about tens of millions of dollars not one hundred dollars but the complaint is clearly a class complaint seeking to represent all united states customers of p and c merchant services that were assessed an annual fee the complaint sought relief for this class of money damages prejudgment interest and declaratory and injunctive relief the district court however failed to grant any of the class relief thus the case is not and the court should reverse what happened below the binding nd circuit decision is guys man versus  which held that only complete relief would moot a class case and that the complete relief included the class claims soc doc came out two thousand and eighteen and settled this very much disputed issue that had been going on in this circuit and others for for many years so even when on that point i and i think you have zoomed in on one of the primary issues here and i'll be interested in hearing opposing counsel is it your view that the movement of the class representatives claim can never move the case because as so long as class relief is out there that is that is true unless the court has given a reasonable opportunity for the class certification and that has been either waived or has been a failure on behalf of the plaintiffs so yes the answer i think the simple answer is yes that is the that is the proper reading of luck and then let me ask you another question about you or your client in particular your client submitted  a request or can remember the word but specifically sent in a dispute of this charge to the bank is that right yes a notice of claim the notice of claim and it was within a matter of days that the bank refunded that directly to your glance account correct yes i could quibble with some of the possibilities there but yes your honor well the actually that is tell me your quibble might be relevant well we had a prior case and there is still an ongoing prior case against p and c and in the two thousand and eighteen timeframe that the annual fee charges and allegations right in the call as in two thousand and seventeen as and th sixteen and so on so this automated practice is continuing in the st case the court held that we had to make use of that notice of claim or else our claims were contractually banned under the under under their the p n t contract and so this time when choice was assessed the totally improper fee again we sent the notice as the court had earlier told us we had to do we had many disputes about that notice of claim provision and its validity but why not just comply with that so we did and then we filed suit it's important to note that this is only a notice of claim that's all you have to do is notify the entity within sixty days of understanding that you were assessed a fee that you dispute we did that it is plain and simple that that's all that's required and so we did not have that contractual bar in this case as we had and others there is no practical difference what the gist of this notice provision which is very different than other notice provisions is not that you have to give the defendant p and c an opportunity to cure the problem it's that they are free and exempt from litigation if you don't comply with that notice provision so it is very important always the purpose of the notice commission is well it saves them a lot of money you honor they have taken advantage of that and court to argue that very viable otherwise viable claims are defeated you can see that in both the sam's am appellate decision that this court affirmed which was the same from claims as has happened twice in the circuit already however when we were aware that this risk was there and of course complied you know one hundred percent with their requirement by sending multiple notices to litigation is to allow the and the party to comply and that's exactly how some of these provisions are worded we include the evo payment processing contractual provision at our papers your honor and it does say that you can't sue us for sixty days but here that is not in their p and she drafted this and it will always be interpreted by this court against the  drafter not to write in that kind of very favorable language for them that would get a you know multibillion dollar company out of this case so they chose to write it that way it's plain and simple on the documents and we have complied with it what you know made you characterized by your adversaries i suppose but not by you was the reply but it would be your view that we necessarily have to reach the issue of whether the claim for i can't remember system automatically believes on an annual basis and that your claim would therefore still be alive for future harm in the sense that you allege that it is not a speculative harm is  i accurately characterize in your view or do you think that we one way or the other have to reach the question of the movement with respect to two thousand and one king no i think this case meet the standard for non speculative request for declaratory and injunctive relief that we have a legend we have shown and we can easily show that they have been doing this exact automated invalid process for a long time i actually don't know when it started but i know it's proceeded for the last several years this is an ongoing problem it results in over ten million dollars a year and improper benefit to p and c at the expense of small businesses and we you know have shown with quite a bit of detail and are are quite detailed complaint that this is an ongoing problem that happens the exact same every year they violate the same provisions every year we have explained why it's and ballot so i think we do meet that it is not speculative for the court to have said this is a case that's appropriate for injunctive relief and declaratory relief in favor of the pla owners sixty percent by p and c bank and forty percent by st data fi serve which is the largest payment processor in the world they are the back office for hundreds of entities such as bank of america merchant services or wells fargo merchant services so there are actually it is a provable fact that there are no increased technological or systems costs because of the p m c account so we have shown in the complaint to the best of our abilities at this point that there is absolutely no truth to the concept of them having just the b actually compensating the company for those legitimate costs that are mentioned in the contract with the court today by reference to his aspirations that this be a class action that covers a period of six years and hundreds of millions of dollars the truth of the matter is that there are very good anything and what we really need to focus on is that this case unlike all of the cases that the plaintiff cites in the in the briefs is case it involves a contract and mr w astutely keeps referring to it as a notice of claim for vision but that's not at all what it is he keeps talking about in terms of in terms of what he wished it said but not in terms of what it actually says it is a contract whose head contemplates adjustments succeed settlement offer and that it was sufficient to satisfy the plaintiff's individual claim for relief let's just posit that for the sake of argument why would that matter in light of the language  of said that a judgment satisfying an individual claim does not give the plaintiffs exercising its right to sue on behalf of others all that it's requested in the complaint meaning relief for the class why isn't that why isn't that really make it all kind of beside the point whether choice beers have got a what's called a full refund god is different for a number of reasons and and the statement that you are referred to has to be read in the context of what the opinion said otherwise because there was a great deal of emphasis on zoc doc on a number of points that are dramatically different from the situation here and so you're right we don't have a rule sixty eight settlement offer which was rejected we don't have a rule sixty seven payment into account which was rejected or rebuffed we have a refund directly into the merchant's bank account and it's still there eighteen months later it's still there the merchant pursuant to the contract ask for something you know married but i'm just i guess my point is let's accept that premise but say you don't need to convince us we agreed that was a refund and that individual y choice beer shop has had all of their individual interests one hundred percent satisfied let's even posit into the future my question is tell me how the language that i talked jock doesn't keep the case alive because part of the relief the individual claimed was on behalf of the class and that class relief was not granted i guess that's what i'd like you to focus on sure i understand your honor and that discussion of the leaf on behalf of the class was a discussion around the concern of putting the the defendant in the driver's seat  dictating whether the case could go forward and refer to cause steps as a play that is as argue vigorously around a strategic because attempt and that's not what happened here at all sense that whether a payment is strategic or not there's really no law to suggest that claiming bringing a class action somehow satisfies the cage of controversy requirement i mean what we have is case law where the class is already certified then the courts take the attitude that there's this independent interest out there and then the supreme court went on to say well  claiming that this should be a class action which it manifestly should not force is the conclusion that there is a case of controversy regardless of whether the name think that has standing and the case law is really clear that change that the rules of the furrows and civil procedure and counsels aspiration cannot change the fact that you need an actual case or controversy or is none here under the law including response st i want to add that in thought there was a pending motion for class certification in the court relied heavily on on that point but don't back to your question your honor there's actually no record of your premise your honor there is zero record that the c's are going to be charged in the future as to choice and the truth of the matter is there cannot be a record that these fees are going to be charged in the future as to all march so that's rank speculation that  charge is legitimate the supposition that the charge is going to go on into the future as to choice for all merchants is is not accurate and it's not in  i thought there was and i'm digging through here and i apologize and here it is i think it's in in the complaint i thought is page five of the appendix isn't there an allegation by choice beer the defendant has program discovery will prove that that's a lie and that that never happened is counterfactual but and i incorrect that that was an allegation in the complaint no your honor you read the allegations correctly and to lee charge that you're right i mean setting aside the factual dispute that we have with that that that is not a pleading as to what's going to happen the future and if it was a prediction of the future it's not accurate but if you were getting into accuracy we're getting into summary judgment land right well i'm saying it was a pleading as to what's going to happen in the future and there's another base you know there's no bait i'm sorry just wait a minute i just want to make sure we're reading the same part of fees are imposed as a planned nearly release how is that not allege again just we got to accept it as true because here we are depleting stage how does that statement well your honor i guess you could you could say that by saying that it has been done in the past they anticipate that it will be done in the future there is no allegation that the fee would be charged into the future as to the name plaintiff choice and if we are talking about this because we're talking about the prospect injunctive relief saving standing in this case with honor st of all in order to show that they're entitled to injunctive relief the harm has to be certainly impending here we don't have any legal fee we have a fee that is permitted by the contract and in order to challenge it with the injunction would have to say it's not that you can't charge the fee because everybody admits that you're allowed to charge the fee you actually have to enjoin charging the fee unless it's reasonable to defray the costs so you're talking about in joining a moving target they stay on what the cost might be year after year after year and you're doing it on a record where that the lower court knew full well that there was an adjustment provision and knew that in the prior case to which mr webb alluded a refund was given to another merchant prior to there even being any litigation so it's pretty clear that those refunds are given and that they are available and finally your honor that the idea that they could get injunctive relief remember this is a commercial contract where money that we are worried about this happening and it's happened in the past and and your program your program to do it so we need a declaration that you can't do it your honor that would be i'm sorry you know why would that be sufficient to avoid movements that would be the ultimate advisory opinion your honor because what you're really talking about it's a declaratory judgment as to what that you shouldn't charge a  concept played in the contract in a way that exceeds the cost that you might have next year and so it's really just a statement a going forward do what your contract says and there's there's really no basis for a declaratory judgment on those grounds otherwise every case would have standing every time someone that wanted to challenge a contract and how would be executed i would be performed for it and here that's even worse because that performance is based on facts that haven't yet developed and that is the cost in the coming yes thank you st let me point out and facades as strongly as possible that in this case unlike many cases at the pleading stage we have voluminous information about the ongoing nature of this practice it has been litigated in this case and another case for several years now we know the annual fee practices were identical they are programmed and then an automated release that assesses these fees against tens of thousands of customers in the exact same fashion every single time it is against the terms of the contract and we have talked to end insiders at the company you can see from the complaint that told us about this practice and that it is a planned release  obviously incredibly profitable to the company but i would be remiss without also confirming something that the court has suggested and that's questioning which is that if you look at what was in place before zoc doc you can see that this case would also be appropriate for reversal judge katzman decision to not see versus new alliance bank would also dictate that result if there's not a judgement giving the plaintiff all the relief they seek then the case should be reversed there is no mootness issue please look at the judgment in this case on page one  appendix it's a judgment for the defendant nothing is given nothing to the point whatsoever and so as a simple even maybe perhaps simpler metal matter just enforcing the holding up this court should reverse on the basis of the individual claims also not being thank you very much thank you to both counsel that was very well argued and very helpful so we're