unique issue in california which is the control of registered opticians who exercise control over doctors of molecule ophthalmology and metrics this is a situation of the california legislature have dealt with for at least one hundred years and most recently before the recent changes to specifically business of professions code section six fifty five the statute issue and what we have here is a legislative scheme that is clear and ambiguous it is to protect the public the history is to protect the public and prevent people from being forced into  sufficient allegations of lost money or lost economics in this transaction and what we did in pleading this complaint was we took this court's decision in a no host which i know your honor was on that panel and we matched it almost identically in a no host you had coal stores advertising things on sale they worn on sale the plaintiff in an office adequately pled they had standing based upon the fact that they parted with money that they not otherwise not would not have parted with in that case had they known the truth behind the misrepresentation so the first thing we adequately allege here was the misrepresentation independent doctors of optometry that was the specific allegation that was made here in the complaint and that the store made there is there is there an allegation in the complaint that  was that the atomic truth was not independent it specifically exactly yes that very allegations made in the complaint in addition to the allegation that there were signs in the store purported to claim the doctor was independent plus the fact that had ms o midi known of the true relationship between the optometrist and the store and the straw man or the middleman first sight she would not have entered into that transaction that's pled specifically in the complaint and then it's also pled specific in the complaint all the ways that the optometrist was not independent sure we played it in in multiple ways about specifically the least that the doctor was required to enter into the facts and circumstances and i can go through some of those they couldn't maintain their own records they were subject to audit they could be change from store to store  to make sure i get his questions and i just can't hear it at all you know what's going on i can hear judge  was did you did you specifically plead that was dr rhodes i think in this case that the doctor in question was not independent because of the specific circumstances that were involved in this lease docket rhodes's in the other case sure this is dr hole doctor and starting on with paragraph number seventy five in our complaint we go into detail about the store that the plaintiff visited w specifically talk in paragraph seventy eight as with dr hose requirements and it goes on in specific detail through paragraph eighty three over the course of th but did you take the next step and say that as a result of these conditions that she was not independent and she was not exercising independent judgment i believe we did your honor i think that that's a fair reading of course appear i can't read every single paragraph of a of a very long complaint than that but i believe we did and i believe the court looks at those specific paragraphs we did and then there's another plaintiff in this case as well those representations those specific representations i think every complaint probably could always be better i think that's well was look at every document i write but i think this was pretty good and i think the allegations do indeed match you know host and  match kwikset with respect to what the representations that are required to complete one stage in order to qualify as a seven thousand two hundred case and i believe that what we did your honor was very specifically try to outline that an outline the importance of the independence the fact that the the key issue here is was the misrepresentation material we make that allegation it is at least as material the public health of the health concern about someone's makes a difference is because the benefit of the bargain and that's what this is this is this is the cases have referred to this is the benefit of the bargain argument that the pelleas consistently raise in these cases you got what you paid for as my mother would say is what happened here it doesn't make a difference because if it's material the cases say whether you got what you paid for or not is irrelevant and the materiality is where the analysis ends at least at the pleading stage and we  back that this only works if you can show that this is thomas was an independent what's the strongest fact you've got to show from which we should have for lack of independence because that's the that's your argument you didn't get what you paid for what you paid for was an independent exam what's the strongest back from which we can infer lack of independent and independent exam that doesn't violate the statutes the strongest facts are is really the the least terms here which we allege which is i was thinking about this over the weekend preparing for that's correct but also relied on the fact that california law would protect or relied on the fact that she had the reasonable expectation that the doctor was giving an independent exam because up to rule otherwise would be to hold that these statutes have no practical meaning and no practical import for the protection of the public and i think that they do in the fact that this case was specifically brought is violations of the statute and that all were required under seventeen to three is to alleged that this specific plaintiff has standing in order to be able to brought the case bring the case i think we do i don't know what more we need to allege rather then they saw the sign that it was independent they had a reasonable belief that the doctor would be independent of of wal mart in first sight and that they went in there with that knowledge and then the conclusory allegation which is had she known that it was an independent she would not have gone and use the services that you is there a difference if you're standing purposes between the allegations of the fraudulent the alleged fraudulent advertisement and the unlawfulness of the arrangement the alleged unlawfulness of the arrangement the because we bring it under were i think the district will offer as i understand the district court's order went off on constitutional standing for that correct there's a way to court's order two issues one was article three lack of constitutional standing which i think we've plug and then the last three issues that the judge raises in the district court was really one combined into one which is even if you got past standing you have an alleged sufficient of what was under the unlawfulness prong that's a good morning may it please the court karen bomb hole for respondent wal mart stores and with me at counsel table is raymond cardoza of reed smith for respondent first say it's ok with the court like to cede about three minutes of my time to mr cardoza so he could speak to some of those specific first sight issues i'll start with some introductory remarks and then i'll talk about the requirements of economic andrea under quick sat and all of the other case law what's actually pleaded here and then i'd like to briefly touch on some mine and as as well but just to set the table this case is about two plaintiffs and two defendants and every case that comes before this hardcore is about the parties before it and this one is no different but on every level this case is different from all the other cases discussed this morning and in the briefs so we have to plaintiffs here who have sued to defendants with him they claim no business transaction they pay their eye doctors those eye doctors are not parties and the plaintiffs used to clean this is important in their original complaint they used to claim that they had business transaction with wal mart but they abandoned that in favor of a different theory in this case we have a point to plaintiffs who claim not that they paid too much but that the doctors actually charged too little for the exams that were received and again in their original complaint they did allege that they thought they might have paid above market value for their exams but the abandon that in favor of this theory that the doctors are somehow not independent because they are forced to charge too little for an exam and in this case we have leases that are with a vision plan not with an optician wal mart is the optician first site as a knock skin vision plan and in this case we have plaintiffs who are suing to claim some sort of nefarious conduct about  a legislative scheme that's now been repealed and finally in this case we have two plaintiffs who after concessions in their reply brief are actually not seeking any available relief they abandoned injunctive relief in their reply brief here on appeal they concede that there is no restitution area around maty available to them because they didn't have a transaction with either defendant so in short what we have is a case that's contrived truly to seek an advisory opinion that a complaint in both cases but one of could you address for a moment why the district court was correct in concluding that there was no stand sure and i think there's two reasons the only issue that i see we have to decide was their standing correct i think that is well there some some alternative grounds that we've argued for after this tour didn't reach the alternative grounds that's true although they would be written reviewed to notice of this court would have discretion but yes to focus in your honor on the standing issues i think there's two reasons why the district on an argument this morning is that even if the law is as rigid as the plaintiffs claim they don't plead the facts necessary to show how their eye doctors independent medical judgment was actually impacted so let me just well i do in such a way i what i think they're missing is the x y and z but let me first start with what hosting kwikset actually hold because we have a party here whose original pleading again s t r ten actually did allege a loss in value but i think kwikset and you know who is actually stand for something very important and this comes out in some of the later case like bauer kwikset explains and i'd like to just read a quote this is from three twenty nine thousand three thirty for each consumer who relies on the truth and accuracy of a label and as deceived by misrepresentations into making a purchase the economic harm is the same the consumer has purchased a product that he or she and this is italics and kwikset paid more for than he or she otherwise might have been willing to pay and the court goes on and says that increment that extra money paid is economic injury and affords the consumer standing to sue him no host recognizes that rationale and that isn't what we have here we actually have an interesting case where the plaintiffs argument is these exams were below market was it well it wasn't the plane of saying i don't care what the price of this exam was it was twenty five dollars forty nine dollars or seventy nine dollars it's not independent i'm not going for it i'm below value and they do that for a reason because that's the way they're attempting to establish independence their original complaint actually did allege this was above market they're not going to get on and put on an economist to say here's the increment lack of independence their lack of independence theory comes down to this idea that they charge too little so that they have to see too many patients and maybe they won't get that quality that's the theory they've set up and i grant you it's different from the case law because in the other cases in quick sudden who know host those the theory goes then a sort of back to my question alleging that isn't enough to show that the in fact the two doctors in question here were in past and i and i don't think it does and here's why first even if we're in that universe where that's enough to say i wanted an independent doctor and i didn't get one they're missing the facts specific to them they don't allege any facts to show that dr ho or dr mendoza are the two doctors that these two plaintiffs were not independent or that their independent medical judgment was in any way controlled by anyone much less and this is important because the statutory scheme they're suing under regulates the relationship between optometrists the doctors and opticians like wal mart but what the plaintiff wants to keep ignoring here is that those optometrists and all the lease provisions they want to rely on which i would submit the district court was correct in ruling do not plausibly allege a lack of independence those lease provisions are with first sight mr cardoza can speak more to this but first night is a vision plan there's no pleading here other than just the conclusory well wal mart must have had an interest here that wal mart in any way impacted the independence of these doctors and that's important because that's what the statutory scheme now repealed regulate the bottom line is that they argue that these lease provisions could impact the medical independent medical judged of one of the optometrists but they don't argue that any facts from which you could infer that dr ho or dr mendoza either were not independent or provided anything less than an independent medical assessment of their eyes and it's within these plaintiffs control to say i didn't get it i didn't get a long exam i was told i actually didn't need these glasses that this doctor prescribe that in any way those doctors were impacted and of course if they were to provide that  the problem they have now is that this is a class action and they're going to have difficulty proving individual issues lack of individualized issues so it's tactically they chose to rely solely on the the broad scheme the facts that they allege in that counsel referred to are just a repeat of the overall least provisions that they say applied to everyone they have they do not allege any specific facts to turn to the injury  kwikset stands for that's what prop sixty four stands for so i don't think there's any dispute there the question is whether or not they've met it now just to speak briefly to the unlawfulness issue there is no debating this they still have to allege of money to have economic injury under the statute the inquiry is exactly the same and the one case they cite my draws though says just that it held that the plaintiff presented evidence of economic and jury because she could show she still owed twelve thousand dollars on a motorcycle where the dealer had failed to put the pricing tag on a motorcycle so again i come back to my first point which is this is like all of those other cases where the alleged failure impacts the valuation that the consumer is going to make and if you say all that's required is that there be some violation of law somewhere in the chain you swallow standing requirements article three demeter which was submitted to the court in a twenty eight j letter explains just that you have to allege that something happened to you and demeter is actually very important case because it's very similar in the sense that well there's a violation i didn't know about and i made assumptions that there was compliance with law but the court says you still have to show that this impacted you in some way just very briefly and i understand that the court does not have to reach alternative grounds if the court were not to agree with us on standing but we have urged rule nine grounds for a ferment in our briefing and i would also say that as a result of the abandonment of the injunctive relief that was sought in abandonment in the plaintiff's reply brief on appeal there's still another ground it's settled law and we brief this to the court that non restitution ery discouragement is not available they concede it but they call the issue somehow hypothetical but it's beyond dispute that restitution is not available here they had no transaction with either of the two defendants in this case and as for damages that might be available under the other  provisions again i would say and urge the court to focus on the fact that their theory requires the court to assume able low market value for this service i don't really think that you really credit think through the what and used with the other cases well know the least provision that's alleged here between first site and the optometrists does have a net income provision according to the that wal mart collects from from vision is also based on this saying there's there's no allegation i don't believe that that is true and i don't believe it to be true in fact that the wal mart i guess we don't know  minutes and i see that i'm running out of time i just anyone who's walked through a mall in the last several decades knows that the vision health care industry has long operated under the impression that these are proper types of structures and the was i believe it absolutely was because the regulations regulate the relationship between wal mart and optometrists and first light is a vision plan that is not so regulated honors the argument has well alumina did why there was an absence of the specific allegations that these particular plaintiffs did not receive a quote independent exam from these particular doctors as my colleague pointed out there was nothing particular about the exam that they've alleged that showed a lot of independence my point on behalf of first sight is this in even more profound lack of specificity they don't allege that first sight represented anything to them so if you look at first sight they're not an optician they're not subject to any of these regulations prohibit them from dismissing for lack of economic injury so why does your argument help us with what's really before us yeah it is actually a standing argument your honor because what they must show is they lost money or property as a result of the unfair competition and how they try to make that allegation is through this claim that they were promised an independent doctor photometry which means they must show that they received what they'd received was not an independent doctor put up tom tree but what they must share with regard to first sight is that it made that promise in the first place they never alleged that as a first site for sites the landlord so as a first site they don't even have step one the you have all these restrictive requirements in the way in which they run their business as part of your right to have standing they have to show op that they relied on that in some way and they get that through our our representation that they say is walmart stores which my colleague has pointed out doesn't get them there because they haven't shown anything about the eye exam that was an independent but that's the first site they don't even have the representation and by the way all the restrictions first si war not not not a bit of difference in the legal mess or there's a straw man and that's the reason that wal mart did this wal mart did this specifically because they thought they could circumvent six if they saw i think that it makes a difference that they're the listener but they're there they're the less they're wal mart's less see and then they turn around and they subleased to the doctors to the various doctors and we argue that that's a end run around six hundred fifty five in the other statutes here and that's exactly what it is they violated the law they get went out and violated the law to get my clients to come in and part with their fifty dollars and now what they want to argue is it's ok we violated the law it's ok that we that we ran afoul of maybe one hundred years of rules and regulations in california to set up something that troubles the public and that did it is a potential danger to the public and now we get off scot free because we've set up this sort of this sort of middleman arrangement and because you can't show mr cabot that  your clients didn't get what they paid for that it doesn't make any difference that we made these misrepresentations and we violated the law and i think that's what it ultimately comes down to and if that's the truth then why would the  misrepresentation about sale even though the person got the merchandise that they paid for or in kwikset made in the usa even though they got the leather man tool or whatever it was there that they paid for why would that be at a higher standard than someone's i care someone's health care i'd be happy to answer questions in a nose what if what if the allegation of ben that they didn't allege that they bought something that had never been sold at regular price but rather they allege that at times cole and sold items that had not been actually sold or regular price who detonated difference and that guess i'm having a hard time following the hypothetical because well i'm not i'm not trying to be cute with the court i just didn't understand the hypothetical i just mean this is supposedly a general allegation in that case about coal and coal sometimes marks on sale items that were never sold at full price i understand what i said then that would be very different case and then i'd agree there be no misrepresentation there be no reliance there being no standing this is that's very similar to this case except for the fact that they did make a representation that was an independent d coles there was no statutory violation even close to the level here and that my client specifically alleged that they relied on the doctor to be independent with and without that sign being present so  those are different facts if you completely change the facts or there was no sign of independent doctor of atomic treat if the doctor dr hall in this case rented space arm's length from from the store from wal mart then there wouldn't be a case but that's just not the facts we have before us thinking the thank you very much to get you all thank you very much to accommodate counsel in the de carlo case we're going to jump over to carlo for a moment and we're going to take up  three consolidated cases for argument united states of america versus anguiano united states of america versus doyle and united states of america versus choice and i believe