morning thank you your honor smith please the court i'm david thomas on behalf of the defendant walgreens this appeal concerns the voluntary payment doctrine which this court has repeatedly characterized as a universally recognized rule and which this court has consistently applied to claims for improperly collected taxes since one thousand no to under this rule a plaintiff involuntary pays money under a claim of right with full knowledge of the facts may not work cover the payment soley because the claim itself was unlawful instead such payment is recoverable only when it was not truly voluntary it specifically where it was the result of duress a reasonable mistake a fact or fraud in the context of retail sales that means that if the retailer informs the consumer through receipt or otherwise that it is applying the tax to the items being purchased the consumer cannot later shoe to recover the tax unless he or she objected at the time of the transaction and this court has emphasized the important public services should be public policies  served by the bon terry payment dr and in particular those in intel ensuring of the stability of an finality of payments in taxing regimes and the avoiding a bun necessary litigation now here walgreens mistakenly collected chicago's five cent bottled water tax by applying it to bottles of carbonated or flavored water for a period of time but it disclosed the tax as a separate item on the receipt and  the amounts collect collected to the taxing authority pursuant to the city's remittance procedures plaintiffs did not object to the tax at the time the transaction but brought this class action months later after seeing news reports that walgreens from the voluntary payment defense even the court of appeals did not in this case did not accept that notion and it suffers i think from some fundamental problems and there are two in particular there are two principles of discourse cases make a recognition that the voluntary payment doctrine is a universally recognized rule that applies across all types of alleged illegality concerning the underlying claim this court said that in illinois class  thousand or two and it said it again in front and in many other cases that the voluntary payment doctrine is not a narrowly focused principle but is a broad common law rule that applies across the board it is universally  accepted the second is i think even more fundamental in this context in that is that where a taxpayer has paid taxes voluntarily but erroneous lee there is no claim for a tax refund unless there is a specific statute or ordinance passed by the legislature to allow a tax refund in those circumstances and it cannot be considered a provision for a tax refund process it applies across you know all types of fraud and deceptive practices it's not focused on tax refunds and the public policies tax recovery where there was unjust enrichment where the tax was not remitted but where it's here the taxes been remitted the court has always said the tax refund claims like this are not a very science i'm sorry your honor i'll have to look at that i don't recall it here there's i mean there's no claim i think that there's i'm sorry i think that's a direct case now that's coming back to me i think the idea is that in those instances you might fit within the direct exception but there's no claim under duress here the only claim that the plaintiff has made here is one that is broad claim i was just addressing that itself is immune from voluntary  payment defenses which we think is wrong for the reasons i articulated in the second is that the fraud exception was satisfied here by the very act of collecting the tax and notifying the consumer that the tax was being assessed and that can't be right that can't constitute the basis for a fraud because the premise of the voluntary payment doctrine is that there is an unlawful collection of tax or an unlawful payment and the law encourages and wants the notification to the pay or the or the consumer hear of the tax so that it has the opportunity in real time to raise an objection and that's the point the real focus of all of the exceptions to the voluntary payment doctrine is not about the unlawfulness of the claim for payment it's about the voluntariness of the payment on the part of the pay or and when there's when the pay or possesses the facts that it would need to raise a timely objection it must do so unless there is some type of duress or other reason that would justify not doing so so what each of those exceptions tri discern to put it another way is where is it appropriate to excuse the pay or the taxpayer from raising a timely objection to the tax and avoiding  costs related to the litigation that's going to follow when they have all the facts they need in the moment to raise that concern and again we think the fundamental error made by the court of appeal below is in adopting of a theory an interpretation of the fraud exception that makes the voluntary payment doctrine at war with itself it would ruin during the exception  would cause the exception to swallow the rule in all cases of improperly collected taxes because every time there's going to be an unlawful tax that has been communicated to the pay or that's the promise of the voluntary payment doctrine and if that communication in and of itself provides an exception to it at that point the doctrine in the defense makes no sense there's another problem i think with that theory and that is that there is in fact nothing to see full about providing the plaintiff with a receipt that accurately reflected what walgreen's was doing with the plaintiff's money here there was a separate item that indicated the bottled false or deceptive about the indication on the receipt that the tax was being imposed it wasn't post it was remitted and it informed the consumer that that was what was happening with its money with his money and that is what enables the consumer to say i object i don't think this tax applies again it was devore intended to be an end run around the limited statutory processes for obtaining tax refunds this court again has long made clear that the legislature and taxing authority and not civil litigants in the courts are the proper  supervise the tax collection efforts and the law limits the processes by which tax payers in certain circumstances may sue to obtain a refund voluntarily but erroneous lee pay taxes it has done so precisely because those taxing regimes and public services and the public services that depend on those taxing regimes require stability and fight ality the voluntary payment doctrine has served these important objects as objectives well for more than a century and it should continue to do so and the decision below would preclude that from happening and instead institute what is effectively a purse a rule of liability for every  improperly collected pacs in the retail tech setting for these reasons but the decision of the court of appeal should be reversed if the court has no questions at this time i will make additional points in the abo he just stated that there was nothing to seek poll about the conduct that occurred that's not the issue that's the merits issue of whether or not fraud or sept of conduct was engaged in by walgreen's that's something that has been pled and something that we need to prove your shoe here is whether the voluntary payment doctrine can serve as a bar basically at the courthouse door at the pleading stage to prevent a plaintiff from ever even making the attempt to prove that he has been defrauded counsel also characterized this as a mistake that's been used i believe in their brief they used the m word mistake fifty seven times in their supreme court brief the word mistake appears zero times in plaintiff's complaint the allegation they provide the work of the store to chicago and then they also claim that in a very brief affidavit that the extent the vendor or supply the water that the vendor themselves were met the tax to it depends on how you characterize it let me let me answer it this way for example nava had to do with the tax for the converter box coupon in that case the voluntary doctorate on terry on influence which was a case involving fees charged on phone service you could argue we say is that a tax the voluntary payment doctor did not apply so there are and the inevitable mistakes that come that could come with flying to comply with these tax wouldn't be public policy thousand and eight retailers have been collecting the tax for seven to eight years by the time mr macintoshes case came along that's a contrast from what's going on with the  coffee tax case in that case while the voluntary payment doctrine was discussed in dicta the reason that case was dismissed was because in part a lot of the defendant had a legal thing in on the coffee tax statute saying you should collect the maximum amount you should you tax it at the higher rate and they produced that and the district court said whoa there really isn't any fraud or deception it just so happens that it's a chicago bottled water taxes being charged for it to be but it could be any other type of overcharge for example in our briefs we gave the hypothetical of a situation where to independently add up all the numbers him or herself and determine it was right if you walked he or she walked out the store case was over we submit that is not practical in this day and age consumer con transaction and party a invoice probably be pursuant to a contract and probably be then paid probably be couldn't come back six months or a leap year later and say wait a minute i want my money back party b would have had to pay that under protest that's where that originates from there's always been exceptions to the voluntary i mean dr as was noted earlier there's the rest there's necessity and this fog this is a tailor made case for fog the to show fraud dress or dress i think to the extent that the plaintiff wishes to challenge that evidence yes so for example i believe i'm free to point out in  example that the following did not have personal knowledge of what the vendors did but i'm not able to stand up and say walgreen's itself on the bottled water it sure could stores not pay the is the merits it really is the response to the motion dismissed you have to engage the issue whether you properly pled or argued fraud yes that i read it but i don't have to prove it in order to defeat different matter  and it's a potential fraud case any time a retailer imposes collects it's it depends like like in the example i gave before the bought a lot of cases a situation where you have an ambiguous statute for example and the retailer so miss evidence they rely upon legal counsel instead we err on the side of caution i don't think there's deception that situational fraud payment docking can apply even when fraud is alleged the summers would have to be on super hyper alert every consumer transaction would have to be challenged at the point of sale for the plaintiff to ever maintain a fraud case the fact that it just so happens to be a sales tax does not alter that the cases that  were cited below and in fact the case that the  and in those cases fraud was not alleged but refunds result and the reason that those cases don't apply here in wa to different situation is that one there is a tax protest act to go through to try to recover taxes paid to the state there is no such resentment regime for chicago bottled water to the city has no ability to do that the second thing that was going on in the tax refund cases and in particular what happened in was nasty was that it had to do with non reimbursable coupons and whether a sales tax should be applied to those and one nine hundred eighty this court in a case called saxon ruled out the section of the law that said you should collect taxes on that so what happened was there was an eight year period actually a ten year period where grocery stores and retailers were collecting a tax lawfully that's what the law was and then the court said well that russians unconstitutional and consumerism said we rock the money we want to recoup the money from all ten years back it happened they didn't file and that point specific you tell us what is the misrepresentation you lend your misrepresentation is the charging and collecting of the chicago board of water tax it's that it's that conduct of the retailer who was collecting the tax and at the time it was constitutional and so they thought they were doing the right thing so there's some state of mind piece in that case i think but if you played here  we did it because we know that they have a rather large resources and our in the business of charging sales taxes on all their products and the sales tax has been the facts in two thousand and eight so we think it's a reasonable inference to be talked about tax remittance on back to tax this is not an action against this if you're not asking for the money back instead it's gone correct you're asking money to come from long after they've admitted that money to the city of chicago would agree they made a mistake when when you were asked the question regarding whether or where this tax money when he said well that's an issue for just you know they want to show us that that tax you seem to be saying well in this case it's been going on for eight years if we decide that a case can go forward under the illinois consumer rather for any type of mistake that his name if there some inference of rob right it's going to go a lot further than this particular case and then we're back to again a public policy argument that there's mistakes these are these tax ordinances are all over the place i would imagine there's a lot of mistakes going on so in every one of those situations where mistake or fraud could be inferred isn't there going to be a ton of cases i'm not sure be a ton of cases filed because again it has to be a situation where someone was deceived i guess it really has to be worth the money for someone to pursue the case this is a you know fairly high scenario where it let's say it was a mistake let's just accept out that it's a mistake and the money goes to you know wherever but it wasn't supposed to be charged then then you have th compulsion exception because of the nature of the medical device and there's no allegation of duress in this case and the plaintiff could go to any store in the city of scotland buy a bottle of water if they didn't want to pay the fullness and we walk through this in our reply brief on pages thirteen and fourteen but this court's cases in other cases from illinois make clear that mere assertions and that's all this is is a conclusion  pleated complaint requirement that they have to allege facts that actually support that and here there are not and we talked a little bit about the remittance issue and what happens when the tax collector retailer remits the tax to the taxing authority of the state or city and this court's cases and other cases throughout illinois make clear that once remittance has occurred that precludes any claim for a refund unless the legislature has specifically provided a mechanism for a painting that cannot be characterized as that type of a tax refund an act m by the legislature the cases that make that clear include frond haggerty adams and lose it's there is a lot of authority for the proposition that the remittance is in fact important and it is relevant to the claim that there was some sight some sort of deceptive conduct because you have to look at what is alleged as deception it is the mere fact of indicating on the receipt you know chicago bottled water tax five cents what that says is walgreens is collecting five cent tax on the item you purchased that is a factual accurate statement it's not a guarantee that all of the legal research has been done and you can rely on the legal opinion of the retailer all of this court's voluntary payment doctrine cases make clear that one of the primary objectives of the baath repayment doctrine is to ensure that all parties including consumers have an incentive to know what their legal obligations are including the taxes that they are owed and the taxes that's an issue here is very clearly imposed on consumers not retailers retailers have to collect it and all of the ways in tax are specifically the ways that are provided for in the city's ordinance and this is in three best forty three dash fifty under the collection  heading of the city's or ditz it tells retailers that when there's a wholesaler you purchase the bottled water from the host seller pays and you have to pay the whole seller and if you there's no host seller then you collect the taxes pa authority and the affidavit that was put in here under two six nineteen makes clear that's exactly what happened here and it was never challenged below there was no allegation to the contrary there was no effort to try to r an interesting case because i think it shows how an allegation of fraud can create an exception to the voluntary payment doctrine but the fraud that was alleged in florida where and that's a case that involves not taxes but the imposition of fees by telephone company and there was a fee for the so called initiation fee and that fee was disclosed on the bills and paid and it wasn't the disclosure of the fee that created the allegation of fraud fit within the fraud exception it was the fact that it was alleged was a bully that the telephone company was intentionally cutting off halls multiple times during each call from the prison to and require that initiation fee be paid multiple times for each call and so there was a plausible allegations of fraud but it wasn't the simple continued effect in these important tax collection has the type of consequences that would follow if instead of a long standing voluntary payment doctrine we replaced it  with the type of standard that was adopted below by the court of appeal which really does amount to per se liability every time there is and inthe you know the retailer informs the taxpayer that it's collecting that happens to be wrong that that would swallow the rule and it would create it would turn it into the preferred and i would suggest only mechanism by which plaintiffs are going to sue to obtain tax refunds going forward and that brings with it you know attempts a punitive damages which also are alleged in the complaint here you know attorneys fees all these other things which create perverse and difficult incentives on the part of retailers who are trying to comply with complicated taxing regimes and this is why this court has always recognized that the proper supervision of those taxing regimes or by the legislature and by the taxing authorities that promulgated those ordinances and not by civil litigation of this nature i think it's important to recognize that what's happened in this case is the same allegations that this court and other courts have seen dozens of times over many many decades and the only thing that's different is they put the label  of consumer fraud on to the same factual allegations but that legal is not what controls what controls or what are what the facts are that are alleged and under the voluntary payment doctrine it's not the label of the illegality that matters it's whether the payment was voluntary and that's what i think my friend on the other side wants to not talk about all of this court's cases make clear that illegality alone is not enough it's presumed and the jenkins court said in rejecting the argument that all claims are immune from the voluntary payment doctrine a mere restatement of illegality isn't sufficient to relieve the consumer of the taxpayer of their obligation to speak up if they think a tax is not appropriate so that especially in this context of these fleeting commercial transactions like this trying to go back months later and recreate what happened here the plaintiff has no receipts didn't keep them if the purchase is made with cash they'll likely be impossible to try to recreate that the law creates incentives to avoid unnecessary class action lawsuits like this and to ensure that the parties have an opportunity to resolve it if in real time a consumer looked at the receipt and said i'm not sure this tax is appropriate the retailer can do something about it and can resolve it and there is a mechanism by which tax refunds are available for the bottled water tax and it's set forth in the city's ordinance three dash for dash one hundred and it serves as an alternative to this type of claim now it may be the case that the plaintiff wouldn't be eligible for relief because he never asked for a refund from the retailer and the retailers the one that gets to obtain a refund from the taxing authority when it's refunded the money to a consumer but there was a mechanism in place for the plaintiff to get a refund for a mistakenly collected pax's he just preferred a class action with attorneys fees and peter damages as an alternative that and that's what the law does not allow and i meet the brief that was put in i think it provides a great illustration of the types of harms that would occur if the rule proposed below were adopted and the example of chicago's sweetened bread beverage tax and a massive amount of litigation that's fallen out of that where bill included the five cent tax and the court below in talking about the allegations that were sufficient stated that walgreens informed the plaintiff that the tax was being imposed on needs to be conveyed and several of them involve receipts some involve other types of forms but as long is the is a person would have enough information to use to raise an objection if they knew what the law was then that's all that's required and you know the launch repayment doctrine is a doctrine that deals with mistakes of law where the party knows the facts and you know the  fraud cases deal with misrepresentations of material facts not mistakes of law that's another reason why this is a very poor fit upon the party may not know the law or make up the law wrong but that doesn't mean they've committed fraud thank you case number one two three six two six i can toss versus walgreens will be taken under advisement as agenda number