good morning may please the court glen dennis for appellant so i'd like to just focus on a couple of issues here one being i'm not sure if it really came out as much as it might have been the briefing regarding the standard of review the i'm sorry this is a little bit better ok if the if the right standards are not applied and that's the st step of a two step process the court's ruling necessarily falls d outside the abuse of discretion or the abuse of discretion standard only at the nd point do you get to whether or not the ruling or the actual decision was within the range of the discretion of the trial court here we have a situation where the wrong legal standard was applied to two of the main and twenty five dollars successful party analysis st under the causation part of that and nd of the primary relief sought part of the problem under causation the court applied simply the wrong legal test on  face the district court here applied the but for rather than the substantial factor standard to determine whether or not this lawsuit was in fact one of the reasons for the several bits or the actually the four pieces of remedial conduct that was put into place by took on the on the primary relief saddam in how do you deal with the fact that it seems that throughout the case your client was not focused on the labels client was focused on the size of the box or the amount of candy in the box and then the relief that ended up happening was the labels sure so in this case the st the very st thing that we did in this case was to send a demand letter and in the demand letter the very st thing that was prayed for was to terminate the use of deceptive packaging by either adding more candy or by modifying the existing packaging if we had meant that the only thing we cared about was the size of the box we simply would have said it should either be adding more candy or shrinking the box well that's one that's one line from one demand letter but there's lots of other pieces of this record in which the argument was made by plaintiff that the labels were actually not effective the question your honor one would be that most of those most of those comments were in response to or were were came in opposition to it will be six motion and the argument there was to see was making was that the net weight or the net weight and the serving size both of these pieces of data that were buried into in the boilerplate on the back of the box serve to dispel any kind of deception the issue there was i believe that our position was really that that argument that the net weight and serving size could serve to dispel deception over the amount of candy that was in the box simply don't go to it but that's not to say that the piece count and by the way just want to point out that the piece count was changed from a piece count per serving size to a piece count overall which is a very different data point was moved to the front that's not something in combination with the diagram of the actual size of the piece of candy in combination with moving forward the slack phil slack the warnings or all of that together that constellation of information is not something that we ever said was unimportant the comments about you know unimportant nor that something that people would look to were within the content i believe this was in the supplemental excerpts of record at pages three hundred and eighty four dollars around there i mean this was in the context and it has to be looked at in the context of the twelve b six motion and the opposition to it and what the arguments that were being put forward there were council it's hard for me to get around your statement in your opposition to the motion to dismiss the net weight quantity disclosure is a red herring and when you've termed it a red herring it's difficult to say that when they do that the get to come in here and they will you know this is what we is what we're looking for and this is a good result and our clients are just are just thrilled and we should get money for this right well i again i think that it's important to take apart what exactly the things that we were saying i mean if i understand your honor's question you were talking again about the net weight in serving size bits of data i'll read it to you here's your sentence defendants net weight and quantity disclosure defense is a red herring intended to distract from the main issue in this case the presence of nonfunctional slack bill right so i believe that there's kind of two ports to that one would be that the presence of nonfunctional slack bill is itself statutory violation for which we are not directly seeking in force and here we are seeking an foresman to the consumer protection standards for deception the deception from our perspective was caused by the fact that people simply didn't know what was in the box but we still have nonfunctional slack villainous boxes right that's correct so our position is that the deception associated with that nonfunctional slack phil is lessened or goes away entirely when you put it when you put in to comply into compliance with the current statutes right now or the current slack the statute which is basically to put the information that was never there before about the size of the candy and the number of candy total in the box or i think fifteen or sixteen they changed it just a little bit per serving and if you've got three servings or three and a half servings or two and a half servings whatever it is you can you can do the math and come up with how many pieces are in there if they go to something that says yeah i guess why you're going to get about thirty five pieces of junior mints in this in this box how does that help the consumer well your honor i mean with respectfully i think that there is a pretty substantial difference between them i think there's a substantial difference between putting a serving size on the back of buried in a very small font small point font on the back of a box and saying directly on the front here is the size of the thing you're getting and here's how many are in the box thank you for it you know the size of the box it could be you get thirty five junior mints and you have a lot of slack feel that that's true and i think that that you know in order for this statue to speeds we don't have to have shown that we curate every possibly deceptive see roll say their reasoning was your point was the slack will isn't the district court entitled to say before the suit you have this much slack will and after the suit you're still have this much slack phil so you didn't you weren't successful well if we were looking to enforce the slack phil statute directly i think that there would be a fair statement here what we're looking to do is enforce the false advertising law in the false advertising law goes to whether or not a reasonable consumer would be in fact deceived by the packaging was the case last say about what level of generality to define the primary relief sought because i think it's fair to say on this record that the remedial measures they took are not the specific measures that you were seeking throughout the litigation but it so if we define primary really very narrowly you lose but if it's defined more broadly your argument becomes more color what is the case law tell us about how to have what level of generality to define primary really sure thank you your honor i think that that's a great question with respect to there aren't a ton of cases about this i would say that the marine case which is one that they cited and one of the california state court of appeal case says the where a non nonprofit was seeking to prevent a commission from having an artificial barrier removed from the water and what they were successful in instead was challenging and having the legislature revisit the way that the commission was constituted but they were not successful in getting their barrier to stay where it was supposed to be that was a case where they said you didn't get what you asked for what you wanted was to have the barrier relief kept there you were unable to do that you were able to get something completely tertiary which was a revisiting of the way that this commission was was was composed that is not within your primary purpose or the primary relief sought contrast that with the edwards case from this court which is one of the two albeit non published cases it's about catalyst fees that we talked about there the issue was unsay orse lack of safety associated with bucking of a car due to a paragraphs of the complaint it's possible they could have said no you didn't get specifically what you wanted you wanted the recall program to be on this specific date to go to this specific amount this specific amount of cars in these models and i believe there they got a recall that was not one hundred percent coextensive with what their complaint was asking for but they got a recall that dealt primarily with safety issues and that was the issue in there the court albeit on  an award of fees did say you got what you asked for you wanted the recall of cars you got the recall of cars ok but i got the difficulty here is that it was the strategy of your case your client's case to disclaim the ability of the warnings and the disclosures to matter because there were some warnings on the back of the box already your client view those as an adequate are not ones that people would see and it's not not just three statements in a demand letter or the complaints a whole course of litigation in the class rd opposition an expert reports and otherwise in which you actually disclaimed the the adequacy of disclosures then becomes a little more difficult to come in and say well i think we should be able to get the benefit of remedial changes that are in the nature of disclosures sure i don't think that's entirely right your honor i think that here if you look at the entire record it actually does quite a bit support what we're saying about what we are after number one would be the demand letter i've already talked about that there we very we very specifically said we are looking to modify the existing packaging looking at the plaintiff's deposition where she clearly said i'm not after money i'm after a prayer to end defendants false and misleading packaging that the packaging be enjoined didn't say the size of the box it didn't say to fill it with more candied said quite specifically at paragraph one hundred and thirty two dollars to end the misleading packaging and finally under the law and under binding case law under tobacco to the california supreme court has said that the primary form of relief available is injunctive and this is just to say that what we're after is injunctive rather than monetary relief that was sort of one of the issues that one might read into the district court's ruling the the the notion that there was not or that we were not looking for injunctive relief in the form of a constellation of  disclosures in the labeling that would dispel consumer deception and violation of the consumer protection statutes is simply to read this far too far too narrowly this requirement this in two minutes left us a time for rebuttal yes  paragraph essentially denial of their motion for koulis fees but there is a very simple threshold question that if you come up with a proper answer it eliminates this causation problem altogether and that is how you received  they complained that citibank was marking up these rd party property inspections and making a profit off it and it was a fraud consumer problem citibank voluntarily changed its practices not to change  models charged but to limit the fees to once a month plaintiffs then lost on classification but declared victory by making that citibank change its practices they were complaining about these fees they changed the fees  dollar or one hundred dollars a month it's the surcharge that is a problem and therefore you have not changed what you sought to change change your behavior you know way that moots their claim and the limit h the deception of which they complain how is that not say he said to serving sizes and weight counts if you go through their complaint and their and their opposition papers to the court they were very very clear in fact one that one of the specific changes we made was to put the words actual size  a scale drawing in their papers they said scale drawings are relevant and cannot fix the problem that they they're not trying to say that those those disks you know scale drawings are in fact what they were thinking all along but that's not what they were saying you know they never said can change anything until after we change the label and they had decided that this was a point in time where they're going to try and get fees that just simply wasn't what they were after but do you disagree that your actions have a limited the deception of which  they well we disagree that there was a deception in the st place we said there is no need for corrective action there is no nonfunctional sloc felis is a not the issue before the court you need to have the space for certain packaging reasons and for protection of the product i'm not here to get into things that they told the court it's extremely clear plants argue that and i'm quoting clear disclosures on labels scale drawings and other informative matter may not counteract the impression created by the size of the package and this when my client changed the labeling they were on the price of this i have no impact on this lawsuit whatsoever because they were not shrinking the box or filling the box it was only after we had made the changes months after we made the changes that for the very  time they said shrink the box filled the box or change the packaging a little bit in terms of labeling that was what they put in their classification papers but that was a different change of the repetitive mantra that had throughout the entire case it was it was very clear labeling is an important customers don't leave the package the only thing they think about is either the size of the box in the price and sometimes i mean the price they simply don't read the labels and that's what they said in their briefing over and over again and the judge found that very clear what is your best claim that at that level of a primary right they accomplished it if it's supposed to be what exactly did they want change they didn't accomplish it but how do i know from the case law which is yes and i understand and a of you know these property inspection fees was the subject of the case there was a change that in fact would make customers pay less than freeze because they were limiting the amount but the judge still said you were talking about a surcharge on these fees not about the number of fees themselves i mean that seems pretty clear here that they were talking about a modification but the judge was very clear labeling was not the type of modification you were seeking i mean you can't tell the judge over and over again this is about shrinking the or filling the box and then later say they did neither of those but we want that you have a case where the change is moving the case but we're not the precise relief that was sawn because you see the problem that creates it means that a defendant can evade the fees just by saying well i'll do this which isn't exactly what they asked for even though it kills their case and now i'm immune from fees and i've gotten out of this i'm not certain that the presumption that mooted the case is correct because if we had made those changes the beginning of the case they would have continued litigating saying you hadn't shrunk the box or filled the box their original claims were not moot in fact they said you could put a giant label on the front and say you know whatever you want to labeling disclosures don't matter they don't change the size of the box which is what customers look at so they they declare the case moot but that was only after they changed their tactics as the judge said reading the chronology here  it seems fairly evident what happened was when you made the labeling changes they continued litigating because you hadn't thanks what they were complaining about then as you were moving for classification they decided to cut their losses and attempt to claim victory as a strategy it wasn't that their case had  how is my client supposed to know if they want to they keep saying we don't care about labeling changes part of part of the college speech you know it's supposed to have a settlement is gushing beforehand to see if you can resolve the issue beforehand when you're told over and over again labeling doesn't matter that's not fairly trying to settle a labeling problem that's trying to settle a problem the total volume of empty space in a box we did not change the empty space in the box there was no no fix of what they going on in that sense there's no there's no remedy left because they've abandoned it they have now said that their claim is moot but it seems like a convenient after the litigation statement when in the beginning they were saying labeling cannot change this problem you cannot fix it relabelling labeling is a red herring customers don't remain if you just look at the plaintiff as alleged in the original complaint that she would not have understood or expected any disclosures in the boxes to alter her expectation of a quantity of in the complaint and the amended complaint but the the massive one is in their opposition to our motion to dismiss what they said clear disco's clear as closures scale drawings and informative matter simply no question and the judge found it clear that was her finding which could be disturbed only on clear error or if there was no reasonable basis for her to find this that she did not go by the fact they were in fact seeking labeling disclosures from the for the st time late february they said well you made these labeling changes how about we settle based on those labeling changes and you pay us about a one million dollars we said we want to pay you any money we didn't need to pay you we need to correct anything this was just a labeling change what you want thinking and then for the  st time in their motion for classification they've changed their mantra from trying to box or fill the box shrink the box fill the box or eliminate distraction and some sort of labeling way that was a change a very substantial change in th position which came about after we changed our labels i don't know if you want to get into causation but they've complained about not applying the presumption of causation but that stems from the fact that the forecourt the one that they based a lot of their motion on said very clearly that you don't get a causation until you've shown that you received the relief you were seeking along the causation doesn't come forward if you haven't gotten the relief you're looking for here the judge said clearly don't get the relief you're looking for there's no reason to go into this causation test i mean she didn't set out her work in pages and pages but once you find that there's no there's a clear finding that there's no successful party here you don't go into these causation tests that's different times they've told the court they weren't seeking a win changes that it's pretty clear what the judge would be surprised that they now claim that they're seeking labeling all along that's that's my argument on  expert said that they've missed on their classification they have had a plaintiff who said that he's not interested in damages there's no attorney's fees left i see no case of controversy i'm certain as to what we will be litigating about if he went demand letter when one reads it would clearly have been mooted if they had provided the same relief that they ultimately provided at that point instead they didn't respond to the demand letter and or take advantage  harbor that the c l array provides in order for those kinds of discussions to actually take place where different forms of relief could be offered to actually move to case show me of a demand letter where you where you suggested that this would the what they did w case well the very st thing we said was that by changing the packaging to eliminate deception the r i mean that was what our case the increasing amount of candy or reduce the size of the container  quoting from your letter number one demand terminate the use of misleading and deceptive packaging either by adding more candy or modifying the existing packaging that's number one correct this is modifying the existing packaging by adding you know several very important disclosure that's not what you said up above counsel two paragraphs above you said increase the amount of candy or reduce the size of the container that's not that's not what you got here correct i believe your honor that that is goes to the st i have  understand where it's i understand where you where it's where it is but that's that you were very specific and say there were two things we want you to think that will satisfy and one of them wasn't disclosing the total number of pieces of candy in the box sure i mean i don't think that plaint in most cases can not sure why did you stop this suit counsel i don't i mean it looks to me under the slack feel laws you might have had a pretty good i've had a pretty good claim i don't know why you gave up here we weren't seeking to enforce this like the laws that don't have a private right of action what we were seeking to do was to enforce the consumer protection laws that venue but i think you had a pretty good argument of the slide by by using this black field laws as your hook to say this is deceptive i don't know why you gave up here i think we had a very good book as well and we ended up getting four different types of relief that i think do in fact dispel deception the your honour's referring to two paragraphs ahead of the two sub i and sub two why i think goes to where we said by adding more candy and we were saying that you could either add more candy or fill the box for sub i sub to i modifying the existing packaging and again this is a hypothetical about what might have happened had they responded to us and said you know what your problem is deceptive packaging why don't we add an actual size notification or an actual size text and a picture of the candy and why don't we change the way that we count them and why don't we taint change the way that we count them and put that right on the front of the box so no one could say i didn't know that there were exactly thirty five pieces of candy and it's this size in the box thank you council thank you very much