thank you that all they were doing that they were not soliciting their members to it on this insurance plan but that they would merely informal their members of the existence of the plan this is their web site which states towards the bottom this is a solicitation of insurance and it doesn't really inform the members of the plan but we're underway it says view plans and pricing it  informs its members what's important about getting a medical medicare supplement plan generally misrule of the us is that language required in the regulations in order to alert consumers one aspect that solicitation is different and you know when i read time magazine or newsweek magazine and there's an ad that sort of looks newsy you know what i mean and then it says this is there's a little fine print that tells me that it's actually a paid advertisement so when i when i see that i don't think that time magazine is advertising for the new medication that me have come out i recognize that it's actually the drug company that's placed an ad so have always taken that ad to be aimed at preventing consumers confusion is not a news report it's a it's an advertisement why is this different i it's just two pages back from the one you handed up and of course you'll know this backwards and forwards but this is it says important closures the a a r p medicare supplement insurance plans carries a harpy name and united that i don't think the issue is whether or not they are peace insurance or not i don't think that's the concern with in terms of why this is their right but what i'm getting at is i think you think they're soliciting and you're briefed stresses that this says on the website this is a solicitation right but just like the opening up the magazine if it has something that looks news and it tells me it's an advertisement not a news report why isn't this the same thing the california statute requiring this is the solicitation if you read through this web site and other materials they're encouraging their members to purchase this insurance and it's not just notifying them of the existence of the plan and so when you put all these things together  right but my question is is that enough to constitute transacting insurance i'm not sure if that's enough i think that w also i'm not sure of it's just indorsing is enough and it isn't and i take it you wouldn't quarrel with the right of a p or any other entity that owns the right to the mark to collect a royalty for the use of that mark right in connection with such an indorsement that's correct and that's what a f p says that that was all they were doing and our argument is there a lot more that they were doing it's a fact question this is an initial complaint and the judge found was insufficient but the judge the judge found that four point nine five percent was in fact a royalty payment i don't know what the premiums are so i don't know what well i guess if we know it's five percent of the premium right hundred dollars or to be four dollars and ninety five cents for your possession of course is that that's not a permissible for finding in connection with the rule twelve the motion because no findings are permissible in that context know they're there royalties and your position is that that's something that you really can't resolve in the context of two of the six right you have a right and and the judge did that the judge did that the judge found it was a royalty even though the medical agreement says that that a a r p is getting paid for two things for us for the use of its trademarks and for sponsorship so a portion of the four point the four point one five is for the for the wealthy for use of the intellectual property which is all that f p tells its members and for sponsorship which is not defined but what we allege means soliciting so it's something less than four point nine five percent that's at issue here we just don't know but what we do know is that a or p established a for profit agency that is supposed to monitor the trademarks and that gets i think eight percent of the four point nine is on that as a result of some settlement they entered into with the internal revenue service that's exactly right so so we don't know exactly what portion goes but but how is that relevant to answering the issue that is before us just trying to surmise what what portion goes to the trademark and trademark modeling monitoring part as opposed to the well let's let me ask a question a different way you don't allege anywhere in your complaint that there's any other source of money to pay the royalty hearing quote number one the royalties have nothing to do with the premiums and the beneficiaries nothing to do with the premiums and quote none of the money is taken out of the premiums i don't understand how to reconcile this ok so what member pays is a member contribution part of that is the large part of that is the premium which finds the insurance and then there's a four point nine percent above that which is that just goes to europe efore sponsorship and wealthy because that uncontested yes yes but that's not so it's not it isn't above it the member contribution is one hundred dollars if you want medigap coverage right and the gross premium is the membership contribution minus the four point nine five percent so if i  who's looking at this a r p website and i do the shopping i put in my zip code and do the shopping of the comparison plans and it tells it's going to tell me how much my payments going to be right it's going to tell you that yes if i get a membership member contribution to tell you the total amount you're going to pay and when you say  contributions some of that lingo is not particularly helpful to us because because it we can't tell if it's interchangeable but if i go through this website and it tells me i'm going to pay one hundred dollars to use judge this example how much about is premium and how much of that and doesn't the four point nine five percent come out of that yes so how do i reconcile that council with this statement from the congressional record because that the four point nine five percent is not an is needed to buy and the insurance it's not it's a visceral amount that members pay because they are ok so you can all right but but if i'm the the consumer i'm going to get a statement each month that tells me to pay a hundred dollars i guess and so i might think that that's my person yes what there have been anything wrong with the arrangement had been that the hundred dollars was paid to united health and then it paid four dollars and ninety five cents to a p and said that's our payment for the royalty for the i think the problem is that it's not what i understand it the member pays the money to a r p they did duck the four dollars and ninety five cents and then they were mit the balance to united health had it been set up so that united received the money directly with the application for insurance and then united remitted the four dollars and ninety five cents to a p would there be anything wrong with that arrangement and then your view i think is the same problem because the member is still paying the four point nine five percent not knowing that what they're paying is for what i know about what i may remember in this hypothetical have once once the member pays one hundred bucks what interest does the member have in how united health disperses the money pays the landlord pays its lawyers because what the member doesn't know is that the four point nine doesn't it  consumer could have purchased the plan for ninety five dollars somewhere yes and allege that he can ok so that's my other question because one would think with the group plan that he's getting a better rate so to speak that you think you've got the allegation here again that the twelve the six level that he could have purchased a comparable plan for ninety five dollars and he didn't know that is that right yes that's right and then can you give me that citation to that paragraph a complete yes it's leave paragraph sixteen and paragraph seventeen were ok other charge other plan regulations in california that say flatly if there's any cold bleed advertising of any kind you have to include this disclaimer what i would but that doesn't answer my question if i left solicitation in the web site page means something different from solicitation in the statute is that you're back to the material legal issue which is whether there are two flavors of agency under california law one is actual appointment of an agent an actual authorized agent and there's no allegation here that hear people say anything of the sort and there's a sensible agency which is where united health might do things that would suggest to a reasonable person that the party they're dealing with is is an to be insured under the program that looking at that communication its entirety would not cause a reasonable person to believe that a fair p is functioning as a united agent but what about estate mentioned are two seven six that was just where it says why get an a a r p medicare supplement plan and there's three bullets telling me why i ought to get this what you need to know about it and it tells me it may help me pay my reduce my out of pocket spent expenses and what not it doesn't  providing views into pricing underwriting for particular insurance package filling out an application that's classic solicitation and there's no allegation that you can do that on the say r p site there's a reference in member services vendor that the agreement indicates that the vendor is hartford fire that is supposed to man the call center and provide those services for members and so what makes this case a little bit mere fact that there's an eight hundred number listed on a bigger p web page doesn't mean that a fair p is on the other in the lot i mean the member program agreement that plaintiffs rely on makes very clear that that call center has to be operated by a licensed insurer hartford fire in the case of the agreement attached i think what the website doesn't have a different plan offered by anybody else does it that's true a grp ie endorses only a single program of medicare supplemental insurance doesn't don't the trust solicitation if any of them does but united health is not a part of the agreement that predates by thirty years our involvement in this program i mean has it been amended or change is still the operative trust document you know i truly don't know it's outside the pleading honor but i do know that united health is not alleged to be a party to that agreement the program agreement that's attached to the complaint allocates responsibility as between united and a a r p in the following ways that united is the ensure united shell employee supposed to run the call center and provide information to the program and so sure their sponsorship here there's endorsement but there are no plausible allegations that a fair p as been involved in preparing applications for for this program in addition to on the web site on television for example and through other sources and you know your honor what i would say is that yes i mean yes there are advertisements on television  and those advertisements are pursuant to the program agreement under which united has license to air a piece marks in the ads i'm familiar with are united health advertisements where united is using a california law doesn't you rather that's right but i think it comes into your life and disability it's in the right hence my question so we're getting there i think i think it does but you know feel free to correct me if i'm wrong under sixteen twenty one a r p isn't an insurance agent right erica is under no circumstances an insurance agent so what about sixteen twenty two we pulled a sixteen twenty two i think is this is that the statute that deals with life and disability right there they're not an insurance agent under any of those provisions i'm not sure why it's not why a priori r p isn't an insurance under sixteen twenty two i understand why it's not under sixteen twenty one i just don't have an answer from you i don't want to use it for your time but is it that that's something that's troubling me i don't see anything in sixteen twenty two that defines agency in any particular that would sweep in a g o p i want to clarify something about the member contribution and this is the i think this could be straightened out relatively easily the  program agreement says that the that the that united is to submit to insurance regulators and get approval of comprehensive regulation california or the member contributions member country boy in my hypo with the hundred dollars one hundred dollars member contributions are premium in the statutory sense california reviews those for reasonableness united cannot pay any less than seventy five percent of that s support of claims there can be as much as twenty five percent for administrative fees including whatever royalties they're paying including profit that agreement though does use other terminology net premiums gross premiums for internal accounting purposes under the arrangement but when you're on a thinks of premiums in the statutory sense what's being approved by regulators it's the member contribution rate and  one of the points that we feel makes the idea of the possible of an amendment futile here is that there is no way united could charge anything different for the could could approach united and say we want to increase the four point five percent and that would that would come out of the member the approved one hundred knot statutory premium member contribution rate and united might go back to the insurance commissioner and say now i want to prove over one hundred five dollars but the point is whatever whatever that interplay the rate that must be collected from members is the approved member contribution rate and out of that as a result while the complaint says that declares that the plaintiffs and other insurers have paid artificially inflated premiums that really has no currency under california law can't be economic injury here in the happen to have purchased coverage at a regulated rate from an unlicensed insurance agent there's no economic injury because you pay the same regulator prove otherwise so is your answer to the last point that mr love made that his client would have gone to an alternate insurance plan had he known about the four point five percent the answer is he was free at all times to surf the internet and find competing insurance plans and decide whether for whatever they were charging he was getting an equivalent amount of coverage if it was about the total cost of coverage that was well within his capability now the complaint to the answer is yes the answer is yes i'm sorry that's all right it up a little bit it talks about in paragraph three that the plaintiffs in the forty class being artificially inflated premiums they wouldn't paid the four point nine five percent if they'd known about it and then in paragraph twenty two the plaintiff returns to that theme and i think the reason the complaint pleads the injury that way that they wouldn't paid the four point nine five percent which i don't think could be cognizable under california law because if it was a fraud in the inducement theory that i wouldn't have made in this program at all if i'd known about the four point nine five percent that fraud in the inducement type theory would be very difficult to certify in a class basis almost impossible and so i think the complaint was designed intentionally  we've paid artificially inflated premiums give us back a four point nine five percent which is not an economic injury that could be cognizable under the u c l after prop sixty four and in any event would be a very difficult thing to certify on a class  they would men and so i think while the web sites are not a difficult point for us it is important to note the planet doesn't lead how we got this coverage i think that's critical  e i think we counsel mentioned the idea that sponsorship payment for sponsorship is somehow problematic under california law and the same intimation is in the briefs i just don't understand the point there's nothing in california law that says you can't offer an endorsement sponsor a program assurance in exchange for compensation the line that you can't cross and you can't solicit applications for coverage and of course there's no allegation plausible allegation that the plaintiffs application for coverage was solicited bayer p and so i would close by suggesting that the critical question again allegations and therefore it's impossible to characterize the royalty as anything for boyle thank  could the district court be said to abuses discretion in finding that amendment would be futile if you offered nothing in response to this question i think at this stage when the court denies the men on the ground the futility this court c conceive of any facts that would support the claim of us versus christian colleges i believe and with regard to the sort of the private insurance has already approved this amount the four it's it's it's improper it's an improper amount even if it's within even if it's within the twenty five percent and had well is it i mean that's i mean i've been wrestling with this from the beginning of the case if it's perfectly permissible for one entity to pay another entity a royalty for the use of its mark and if as you conceded the last time you were up that payment for that royalty comes out of the four point five percent then we're really only talking about a portion of the four point five percent right right i don't know what portion and i mean that i mean i rather think your client might not have wanted to pay four dollars and ninety five cents more but it's a legitimate business transaction between the two entities to compensate a p for the use of its mark so his only choice really would be to go find a competing insurance plan at a lower premium if you don't want to pay to for ninety five i think this is where th materials they all are to be approved by a our people where they could be used by actually soliciting as they did on this web site in t v ads in the internet they also  considered a listening particularly if you're getting paid a good chunk of money for doing so and that you're essentially in the insurance business and then you need to be under the insurance company here in addition to the ones that i've laid out there are others that  e plan should be allowed to amend the complaint at least one time to develop additional facts for solicitation there are others that are not in the record so i can't speak of them so except for the one eight hundred number what are those additional facts that you would allege in your amended complaint more details from the from the television ads and internet ads there's something called the authorized to offer programs in which all united health list of the kinds of you can point you you can to solicitation i think yes i did thank counsel thank you your time has expired a case just argued is submitted for decision we will now hear argument