please the court your honor stephen larson for the appellant tony graham and elizabeth rockwell on behalf of themselves and of course all other similarly situated i'm here with my colleague henri neve who's been assisting me with this this appeal appellant's believe that the district court judge snyder who have a tremendous amount of respect for being a mistake in this case and granting summary judgment that that the really was a fish and evidence to find the various elements necessary for this case to go forward we human beings are not perfect and and we can be tricked and great magicians and caras con artists know that sometimes the best way to fool people is to hide something in plain sight and we believe that that that's clearly what happened here and and mr graham and ms broadwell and other similarly situated were created and fooled by this this labeling of this biohazard fee and i want to make clear what it is that we're arguing and what we're not arguing in this case anyone can make a profit this is not about profit companies are private companies like the v c r they charge as much as they want what they can't do is fool people into thinking that they're paying for something that they're not and what we believe that there is sufficient evidence at least for purposes of summary judgment to establish here is that by the placement and the characterization of this biohazardous waste fee on the invoice in the manner in which the discussions went back and forth with the clerk and the pamphlet and all of the circumstances here it was clear and it was reasonable for it to be clear to these customers that what they were paying or some kind of tax some kind of government or extrinsically imposed feel that was imposed on everyone so unlike all of the other fees the cable field the comcast kavi hotel service fee the administrative fee and the home depot case all of those other cases that that this record and the appellate have relied on in this matter in this court where it's up to the consumer up to the california consumer of the oklahoma consumer to say you know what i don't want to pay that seventeen percent service charge i don't want to pay that two hundred fifty dollars fee i'm going to go someplace else or that's not imposed but when you think it's a tax or a government imposed fear regulation when the company tricks you into thinking that you're not going to go anyplace else you're just going to pay it because you have to much interesting and you are that go to the heart of this and i understand the evidence is not as crystal clear as we would like it i would ask the court of i go through this just to keep in mind where we're at right at the end of the turnover review of summary judgment beginning with with mr graham i would refer the court to e r one alive and this is his deposition transcript and before asking the question just from looking at the line i did you have any understanding of what that meant he responds i had a suspicion what was your suspicion it imply to me by use of the term biohazard waste that it was some form of governmental regulation or statute something to when he was looking at this was this after he paid the bill and he was being shown this afterwards well it's clear with respect to ms broadwell that she was given an invoice beforehand and then afterward it seems from the really and looking at the verb there's another one of more instructive your honor because he he actually questions the clerk about it while the transaction is taking place and this is an excerpt of record one twelve the question is and what do you recall about that conversation and this is the conversation with the lady who working on him answer i asked her about that and she said we are required to charge that to everybody question to the lady say required by who answer no question how did what what did you understand from the latest statement answer on page one thirteen of the excerpt the record my interpretation of that was that there was some governmental requirement that they charge their feet everybody that they encounter as a customer and he goes on to say that that was one of the reasons that he had this belief on page one fifteen he says in fact it was something that they were governmentally required charge to everybody and that would be one factor i cannot suggest to you that i sat there and contemplated for extensive period of time to develop a long list of why i would or wouldn't pay the bill has been very frank but this is clearly happening in real time he is questioning the clerk and your honour's this is completely consistent  you know one of the things that i am preparing for today i really want to emphasize if you look at it at sort of records beginning on four seventeen and this is a power point with an internal power point that the ca put together and it's number two revenue producing told it's the number one profit producing holds fifteen million in two thousand and ten but they talk about the biohazard challenges the fever's not increase with the complexity of the case it's a lightning rod for client compliance and it's a recurrent source of staff and plants we know this is a problem and we had a couple of that and you couple how it's structured with this deposition testimony so  it they vary from hospital to hospital but one sample that we have of the record is that you are seventy seven and so on this particular one it was june eighth two thousand and ten and you have all the descriptions lined up exam consultation glucose  gets and then the last item is that biohazard waste and g m tree and that is for ninety nine it's the only item there that is not something which the dog or the cat or whatever is receiving it's at the bottom just like in many bills or invoices that we get the last item you get is the tax or the fee or whatever it might be and that's were placed and that's where these plaintiffs believe that that's what it was it was a government questions of thirty six deposition and i can refer the court to that but that's in our it's in our briefs our they they have no real basis there was no attempt to quantify the costs of the biohazard they just came up with that if you look at the excerpt of record johnson and the asked about the fee and she says we never said here all the exact charges included and here's the revenue generated by the fee the dca ever hire any person outside of easy to study the costs not to various examples of building around me and none of them to say biohazard waste management fee it just says biohazard waste management right now if it said on the bill by a management waste biohazard waste management v i think your case would be stronger your honor there is no question that there are things that could have made this case stronger are the facts of what is written of saying that as you keep referring to it as being on the bill as a biohazard waste management biohazard your honor i'm not going to suggest for a moment that there are not multiple reasonable interpretations of us and counsel i'm sure mr hunt is very able he's going to get up here and he did some really reasonable interpretations deposition transcript is far from the ideal of clarity because as the district court of the us neither pointed out an order there were several times that she denied based on the way the questions were asked she denied seeing it at the time that she was purchasing it but then in other questions when she was under further examination by the defense as i understand it they asked probably one too many questions and she made it clear that at the time that she was purchasing the invoice she viewed as a tax and i want to refer the court to that to make sure that before the court as well and that's excerpt of record eighty six and eighty seven she is asked this question on eighty six and when you reviewed those referring to the invoices did you look to see whether or not you were being charged no but this he says i just looked at the services this is to your point and securitized the services is everything besides the pile wastefully she says i always thought that feed was just a fee that was required you know taxes whatever it is at the bottom since it wasn't in service i just thought it was a fee that was required so your honor you interpret it as a potentially a service she interpreted not as a service i'm not saying that your own reasonable or fees are unreasonable voice was up for debate i sign a thing that says i authorize you to do this and that i'm liable for any professional fees at the time of the service so it lists what they did as an actual created and then it has that biohazard fee and it has a total so i just assumed it was a government surcharge or i don't know like something like you require biohazard sounds like it's something that's required to me and you know i was thinking last night your honour's this were biohazard you have some of the hold the theory is unfairness that somehow the fee was unfair i submit their concession today that there's no issue about how much profit we made or didn't make the supposes of any claim of unfairness because the whole unfairness claim is basically you're to making too much money off of this and you shouldn't have been able to do that now was somehow unfair so let me turn to the rest of their case which is their fraud or misrepresentation case the fact of the matter is if you look through the bills there is nothing on the bills that suggests that this is a government mandate and there's nothing about the location of this that suggests it's government  fact it's always separated from the section about taxes and it's always up with the sir other services that are being provided the only implication of the placement and location is that it's in the record we never said anything of the company and what else did they have for evidence they say well on one occasion one of the plaintiffs asked the secretary what is this fee for a receptionist and she said it's required of everybody that in no way says that the government is required it it just says we require everybody to pay this fee sorry she said it in the passive and you just changed it into the active fair enough but it doesn't indicate that the government is requiring something like this and that's the real question here is there any evidence that indicates the government is doing it and so they're left with quoting their own depositions and saying well we thought that it was a government feat well as to ms brock well i think the evidence is clear that she only got this thought after she talked to one of the plaintiff's lawyers who was the husband of her best friend while she was on vacation in tahiti or fiji or someplace like that and was asked oh did you see this and so on before that she had nothing about it she didn't even notice that and as to the other plaintive i respectfully submit that having a single plaintiff come in here and say oh this is the way i interpret it and that that creates a triable issue of fact is not the law here we've cited cases in our brief that say both california cases federal cases that you need something beyond that surveys studies even anecdotal evidence they have none of that they have nothing other than one of the two plaintiffs comes in and says oh gee this is what i thought it meant therefore there should not be summary judgment here i submit that cannot be the standard it is not the standard in the cases in it is utterly unworkable to have that be the approach because then every statement that somebody puts out is going to go have to go to trial unless it settles because the plaintiff is always going to come in and say i interpreted it to mean x in a way that i thought was misleading and false i cannot imagine that that is going to be the law management charges separately and they have to be thinking that they will get better consumer cooperation doing it that way instead of just putting an end of the bill so the question is what do they think the consumer is thinking when it sees that when the consumer sees that is it likely that the consumer will actually have some sense that there's some officialdom behind that i mean their argument is not a frivolous argument was and saying it was frivolous but there's no evidence they conducted discovery here of the cia and there's nothing that they came up with that shows that the cia was trying to do this or that it thought that's what consumers were going to think or they did did it this way because it thought it could deceive consumers and make them think it was a government feet there isn't any evidence whatsoever if there was evidence i take your honor's point of course if they had evidence that v c had sat down and said you know if we do it this way we're going to think it's a government fee and be more willing to pay it that would be a very different candidates but there isn't anything like that here all they are left with is the testimony of one pla says i thought it was a government fee nothing else what do you do with the area that they charge the fee irrespective of whether or not the particular service provided to the animal had anything to do with biohazard or by hazard waste management but what this is is and that's why it's management it's more than just disposal of the ways it's running the hospital it's teaching people how to keep the hospital clean each teaching them how to comply with federal and state laws that deal with the disposal of biohazardous ways it's to keep the place clean it's not simply disposing of pet waste but all the things that go with that to make sure the thaw spittle is clean and complies with the law so it's not as they suggest that what they're arguing is the cat comes in the cat doesn't pee on the floor of the counter therefore there's no bio so we're trying to manage the problem and managing the problem is more than simply cleaning up after the cat goes on the counter it's making sure that the whole system to deal with bio hazardous waste works properly and keeps the hospital clean and keeps the hospitals in compliance with while hazardous loss so it's not just directed at waste and that i submit is the reason that that argument does not have you secure the bags for free but my point is if if you say that there is a claim here i submit you're going to have a claim over baggage fees well no my point is when they charge me twenty five dollars to carry  check the bag they checked the bag and it was my bag here there's a bio hazardous waste management fee and i my animal produced no bio hazardous waste as it is those other dawn animals that came in right but this is just a tear charging me some something that has directly to my animals by hazardous waste but it's not my point as with the airline fee they carried your bag before and didn't get anything for it now you get getting a separate charge but they're still carrying the bag nothing's changed to do what they need to do to deal with disposal of the waste they train people they spend money on saying ok here's how you dispose of needles here's how you dispose of animal waste and so on that's part of i think in the end what this boils down to is yes could it have been clear of course it could have been clearer you know i said in an oral argument recently that i wouldn't have a living if all statutes a contracts were clear would be anything to do for me as a lawyer so a good lawyer is never clear by accident so it doesn't go that this unfortunately isn't the way the world works lawyers don't handle all things like this including what it says on the bills so it could have been clear we don't dispute that but i think they had no intention to make it any clearer than i does now well i don't i don't know about yes after this lawsuit is all over we're not going to get a bill that looks in a different from what there is with what this is right here no your honor in that regard we stop doing this we just don't do it well we've eliminated that line item that doesn't happen now now it's gone oh we eliminate because it was causing problems people had concerns over it employees did customers complained so we got rid of it but the question for the court i think is the end in the end is is this something that a reasonable number appreciable number of consumers would look at and go this is the government a government charge and i submit there's no at adequate evidence that would put this past summer a judgment where all the evidence really boils down to one of the plaintiffs saying oh yeah that's what i thought it thank you thank you know use the example of the the they did speak and i think it's a good one they can charge whatever they want twenty five fifty one hundred one hundred fifty and if you don't want to do that you go over to southwest airlines where they don't charge for the baggage fees you have a choice it's clear that it's united or american or whoever who is charging the fee what's fraudulent and misleading and frankly unfair about this is they're characterizing it by design in such a way and they're conveying to the consumer that this is a fee or tax imposed by the extremes of agency and that is a significant difference between the baggage free i agree with mr hankey that you cannot have a if say dixit standard judgment it is because i say it is and that's not what we're saying at all what we're saying is that the explanation being given in these depositions is reasonable this is a reasonable reliance they're giving reasons based on their experience based on the characterization based on the placement and location all of these different factors need to be considered and this is what we believe warrants a trial in this case anecdotal evidence is sufficient under the law as we set forth in our brief to support fire itself the reasonable reliance the district court relied on the i phone case i phone case is dramatically different there are the other two elements of the privacy right