from some other circuits on when proposed class action becomes moot they usually have some other element like in one of them and if the settling plaintiff had gotten the class action and decision not to certify overturned he'd get a substantial amount of money i think was twenty thousand dollars  there could be various cases where he retained some personal interest in this case my understanding of the settlement agreement was if you win you lose whatever happens campion's not going to get a penny nor is it does he have any deal where any of his expenses of litigation are going to be reimbursed or for that matter any indication that he has expenses of litigation as counsel certainly does this was hard fought and counsel would be compensated if if the plaintiff prevailed but i can't see where campion gets a thing he sure can't get an injunction because he's not going to get any more pliant says he's not going to be called the old republic protection company to cover anymore appliances i just can't see where where there's dismissal without prejudice sure in some circumstances dismissal with prejudice missa without prejudice occasionally we have a very convoluted case where you can appeal either way but usually all dismissal without prejudice means find yourself another plaintiff and file another case and in this case i think plaintiff's counsel has done that and there's another case pending in district court with another putative class action plaintiff what's there is an interest in being a prime attorney general and an interest in preventing the defendant from picking off potential plaintiffs because their claim is small and agree that the fed bank's case the california court said that life insurance is not a service correct that's going under your reading of the c r a is fairbanks limited to life insurance or any other service that or i should use the word services or good a service if the group that isn't good isn't the obligation here really just to pay money they reserved for themselves the right to either send somebody out to fix it or to just pay for it if it's covered if if the price of plumbers and electricians rose through a love and appliance repair munro's to a level where it was always cheaper to just replace it as i read the service agreement and they could just do that to give them the option to the insurance company the option to require you to have them replace or repair before they'll pay the money does that make it not insurance correct you on them i think you would explain or support the theory or offer because i have to say you know my wife was in a car accident a few months ago and i always thought it was insurance and now you're kind of tell me it wasn't insurance there was a case we can look at that supports this argument you're with repair but here the plan the whole point of it is to do your customers a service if there are tangible goods require repair freeway in the rain you just call cripple way and they take care of it through a different i think you're on it because you're you're still home you're not it isn't assuming any risk the whole reason that the home warranty contract here  regulated by the california insurance department and falls within the field makes rationale is that it's a it's an assumption of risk just like maybe it's not a pure insurance it's now it gets to insurance it's regulated by insurance and the deal know way that at first made no sense to me because many of the arguments concerning the evolution of the statute and the deletion from the model code of the word insurance and so forth would apply to any form of insurance but it could also be that they were concerned about other forms of insurance that had as an adjunct the provision of goods or services in lieu of payment and so how can we be sure that the california supreme court wouldn't treat this type of insurance differently well you're on i think i think you can be reasonably kind of in first of all out you know they could have just limited to life insurance because as you know  statute but we're doing that you know claims model i mean just you don't have a california supreme court piece on product warranties right we don't have a california supreme court case on home warranty we have lots of district of worry that if they need repair they're not going to go broke fixing it and that's the essence of insurance and even in life insurance there are all kinds of services out exactly as some insurance protects against catastrophe insurance and some insurance protects against pretty affordable risks like an extended product worth exactly if your iphone breaks or gosh people get extended about transference of the risk from the consumer the policyholder to the company and and given that the model lacked had insurance in it a builder's warranty though the  on which the c l array was based had insurance originally in it when the california legislature adopted it they took insurance out that was a an important factor in the fairbanks decision that something can where the legislature intended or at least how the california supreme court would interpret it i think your honor that it again it's if you if you take the proposition that i think fair banks shows you associated with that why independently be a service that's not enough and well if we if we are uncertain whether the california supreme court would extend fairbanks thi concluded that these kinds of extended warranty policies plans they will have service associated with them but the key aspect of them is this risk transference and here  not only does the california insurance deportment regulate home protection plans and home protection companies the plaintiffs complaint is littered with allegations that we violated the insurance code i mean i don't think this before fair banks has concluded that these kinds of plans or insurance or insurance like and aren't covered by the c r a and the reason that they've all done that is that when you look at the fair bank's decision it it actions can be brought under the theory as you describe well i think these these cases do that your honor i mean it depends on the allegations part of the problem is that a lot of times we have plaintiffs bringing claims like this one where standing is suspect w suing on behalf of people that haven't dealt with the company or haven't seen the advertisement that they say is false but certainly and breach of contract has been a solid claim mr campion had a claim for restitution here that was not taken away from him it was decided that it couldn't proceed on a class basis which i think is correct and that's you know another argument that's been made but i think the wal mart case and the cosco case pretty clearly shows that the class certification decision was correct but certainly mr campion had the individual claim for relief and that that claim was settled and if it was applied as an individual klein he would probably win every time because who could afford to litigate it for one thing that you're aware of from california court of appeal on other companies where it's kind of a mixed white one reason you call cripple a is to get your car taken care of another reason is they know which garage is reliable enough to take care your flat the secondary outfits that sell extended warranties on cars if you don't get the manufacturer's extended warranty have ideas usually to get your car fixed rather than to pay for anything some dealers will fix it and some won't are there other california court of appeal cases on these companies that are kind of mixed service in insurance i know that there are two district court decisions against choice marketplace i think it's all kinds there are i've certainly seen advertisement you know ask you to do something like the home protection plan especially with people who hold course for seven or eight years they make a pitch that they're going to break in if you pay them this one flat fee you won't have to worry about it and then there are other people that just want you to repair their car there and i think that's a big difference because one is restraints friends and the other is a direct service i think that's covered  three prongs i would just say i guess on the on the fourth which is the contention that just record should of permitted the motion to amend the district court wrote a very comprehensive and detail situation generally disc work provide accords with great discretion and there's really no reason to have said its findings there there was not good cause here there was not due diligence the plaintiffs waited until the very mend the class were very similar to the ones that had been rejected is futile in the first place and even had there been slight difference doing it at the very end of the case after we had reached the scene we judge it motion to get rid of the individual