complaint but the over arching error in the key one in our view is the district courts misconstruction of the disputed contract terms i brought with me a chart today to help walk through some of the reasons if that since are you are you using this construction and ambiguity the same way if you misconstrued it is that because it was ambiguous or you claim that it's not a big it was just a misconstruction we claim that it's not ambiguous and it's a misconstruction but either way judged on whether work arrived on our interpretation or the court concludes notwithstanding my argument that it's ambiguous you need to reverse the district court because he held as a matter of law that it supported u p s s position and dismissed the case on that basis thank you counsel now the first and judge i wish you we're here to judge donald i wish you were here to see the chart but perhaps you can refer to our motion for leave to bring this chart in what i want i will do is blow up the terms that are the disputed terms in this case i don't think there's any dispute about any other part of the service guide this is record number one page id number one thirty seven this is one of two places in the service guide where this identical language appears this is for domestic shipments on page two zero three a record one is the identical language for international shipments so i want to walk through this but our first and i'll try to keep you in my field of projection judge donald is that for the top line of numbers under court got it wrong is that in the second half mark the second portion of this table that i've blown up here has a range from one hundred dollars and it had to fit in that range i indicated by a little hash mark a little hype and between those two numbers that i just mentioned we believe that because that is a part of the table the pricing table and this is the only  and this is indicated by the page of the pricing of the service guide where this table appear it is a indication of pricing table for value added services or how is it a value added service if you've already got the first hundred dollars of coverage to then go back and charge again for it so the only value added when you declare excess value is to get additional coverage so we think the word value added services themselves indicate that you're supposed to be getting something extra council to have somebody declared a value of two hundred fifty dollars  it not be and paid the minimum charge of two fifty five would it not be clear with a very simple computation that the value from zero to one hundred dollars was accounted for in that in that minimum charge at two fifty five isn't that so i'm trying to understand your question judge just give me a second but my my understanding of the two fifty would be if the engine increment from zero to one hundred from one hundred to two hundred and then from two hundred to three hundred fifty being between two hundred three hundred you you more apply three by eighty five percent you come up with the two fifty five do you not hence it would be clear that an initial value from zero to one hundred would be accounted for in the minimum charge and i have to i have to disagree judge and here is my rationale and i was about to get to this part of my argument i view the to fifty five as an administrative fee to account for as a minimum charge for the point of tracking this excess declared value my argument exactly is the opposite the baseline  rate the the amount that's already being charged even if you don't declare any extra value already include the first hundred dollars of loss so the coverage is already in a different part in the base rate so how can it be in the two that's my whole point and i'll get to that from a page of their brief on appeal and in their brief on page three in their statement of the case they refer to the as a background for this whole thing that's a federal statute forty nine u s c fourteen seven zero six c one and here's the quote from their brief and it has a quote within it the statute also permits carriers to quote establish rates for the transportation of property dot dot dot this is from their brief under which the liability of the carrier for such property is limited to a value established by written or electronic declaration of the shipper or by written agreement and it goes on the key here is the established rate so what they're saying is the car macca amendment allows them to declare a reasonable value here one hundred dollars and to establish a rate that includes coverage for that amount so the point is this if the coverage is already in that base rate it's counterintuitive to anybody looking at this to say you're going to go back and charge again for the coverage you already have and that's from their grief you already ha paid for or you paid for it in the base rate you don't have until you pay for the shipment that you have that because the karmic says they can put it right in their base rate that's what it's all about so you've already paid and so asking for somebody to read this table and to think that you're going to go back now if you declare more in pay a second time for the coverage you already have is counterintuitive and when something is counterintuitive it means it's not being construed reasonably are you somewhat reluctant to acknowledge the the ambiguity position i mean ambiguity serves you well it allows you to survive a motion to dismiss i don't know why you seem somewhat reluctant to focus on an ambiguity when it would have ventured position well i'll address that in my very next argument your judge judge and i think george lopez and i think that this is a there's a phrase that economists use and i hate to bring them up sometimes called a natural experiment as a perfect case for the natural experiment when i clerked on the court of appeals back in the late eighty's for judge kaufman active judges had three assign nowadays i'm under but given to believe they have four so among the chambers of the three judges on this panel you have ten or fifteen people including your administrative assistants and you could posit the following hypothetical for a three hundred fifty dollars charge a declared value what is the coverage cherry we've done this many times and people invariably in my experience come back with two fifty five that's how they come up with it yet u p s is charging three dollars and forty cents if that's how people are reading it i think it's clear that we prevail on the contract language obviously the fallback position is if you think we both have a reasonable position it's got to be declared ambiguous and it has to go back but why would argue for ambiguity when i think we went on the contract is the short answer to your question judge well just pursuing the ambiguity issue a little further who whose whose perspective should we adopt these charges because we often talk in these cases about who how would the reasonable the reason the individual perceive the language dishman who's whose perspective are we supposed to use here is an excellent question and the i believe it's not the least of us to cater to consumer that would be a political and federal fair debt collection practices act case or something of that nature this court is a savage that standard but certainly a reasonable consumer it's not just lawyers it's not just  in fact if you're amazon you probably have got rid of the service guy had negotiated your own contract so we're not even talking about that but certainly in our complaint in this case we allege that u b s requires  filings that they have over one million customers per day they have in two thousand and twelve i think they shipped according to them over four billion packages this language has to be a reasonable consumer can't be discount billing one issue but that was the thirteen seven zero eight a claim that was in this companion case of fact that you've heard about we dropped that claim from this case this is  and billing act claim the problem that i'm struggling with the requirement that there is a person that caused the motor carrier to publish the false or misleading how can you  be the reason you could well first of all as a matter of definition as the gross grocery hollers case held and we believe correctly you can be both under the statutorily defined term of person and carrier but to the point that i think you're raising judge tr case they had a different case here we have alleged in this complaint that u p s has this franchise network it has these third party retailers they cause those third party retailers to publish th service guide what they've done by that obligation is they've caused a third person who they say is a third person to to create the false feeling we believe under principles of responding at superior and other principles they can be held accountable for having caused the very confusion through a third party so you get the fall within the statute that way is there but didn't you say that when you when you look at the large retailers that know there are particular service rates how can they be alleged to have caused this this confusion if there is a direct relationship between in negotiation between u p s and a mass shipper i would agree with  judge panel there's no third party involved and we would have a problem on this particular claim but in all likelihood and we haven't taken any discovery in this case obviously and i'm sort of assuming that there's that negotiation which i can't represent to this court is in fact the case  we believe that they would not be within the service guide in the first place so they wouldn't be part of our class because we're obviously hang our hat on the service guide i see that i'm out of time on me ask you one clarifying question so the relationship each year speaking to is no let me back up the the i'm trying to understand the tiers of relationship you have u p s think scuse me causing s third party entities we have we have u p s is a delaware corporation parent of u p s services inc who is the defendant in this case there's another entity i believe from causes their franchisees requires them to publish these what we consider to be false and misleading pricing tables and that's your third party and then we go we're not suing the third party retailers but we're we're suing u p s and saying you're responsible for causing those third parties to publish those false and misleading guides accounts i gather in part of your position that it's because the application of the federal crisper titian statute depends on more complete understanding of the int relationship among all these parties the state of the record would not really permit a conclusion that that stench of does not apply here absolutely correct and in the grocery haulers case that was a summary judgment motion your hon i haven't been able to address the preemption argument of can i have a second on that are actually briefly do that i would and i want to point out judge because this case was filed was was handed down just a few weeks ago and your honor was on the panel merit versus diego american supply six circuit numbers fourteen dash six one nine eight of them are second twenty fifteen judges siler rogers and and yourself to its tranche and page twelve of that there's a strong presumption against federal preemption of state law i just want to make that point because it's a new brief but in essence they argue that because  of the woman's case were preempted because they construe will ins to mean one thing you can only have a run of the mill breach of contract case we know that's not the law and the reason we know that's not the law is first of all that's not what w sense but second of all in the northwest in case versus ginsburg in two thousand and fourteen that issue was presented and judge alito writing for the court said this it was an in that case it was implied contract claim but it was not an express contract claim same argument was made and appear afraid to paraphrase judge alito it's that he says for the court federal preemption of this area doesn't do more save any of these claims you have to look at them on a case by case basis as u p s has pointed out in their brief as i have pointed out in our brief as we did below we're having an arhat on our construction of this contract if if you p s was correct to charge the extra eighty five cents there's no one just enrichment because there's nothing wrong about collecting eighty five century entitle to under the contract so because we're not asking them to do anything other than to stand up for their voluntarily assumed  value declared total has a purpose and it's a word that would be clear even to any reasonable consumer into question the statement our standard of review your honor twelve  motion so your opposing counsel does not have to prove that his is even though he alleges it that his is the only reasonable interpretation and the question is is his also a reasonable interpretation isn't that correct that's that's the question but the answer is that plaintiff's interpretation is not a reasonable one because it's flatly inconsistent with the terms of the contract now the only way to read total value declared to mean something last to mean it's one minute to that range the portion of declared value above one hundred dollars is to add words to change the meaning such as to the top to me now you declared it under that argument in order to make the c char work wouldn't you have to change words to say at the beginning h would work i'm saying it seems to me that both of you have to add language in order to come up with the assurance of how you interpret the contract no and the reason is because you have to apply basic rules of contract interpretation of plain and ordinary meaning plain an ornery meaning of total value declared means the entire value declared that word has a purpose and it would not be there if not to emphasize that the declared value the range of one hundred dollars one cents up to fifty thousand dollars and that's so that when that language seems to be really simply a it's a triggering the critter in the can isn't but it's certainly well i paid to get the coverage that the consumer wants so if you read the two rows together which which which we must the triggering mechanism is actually the value declared the amount the shipper declares as value and what the first row says to the shipper is if you declare a value if art pardon if you don't declare a value above one hundred dollars then there's no charge but if you do the second process once you declare value above one hundred dollars up to the fifty thousand dollars per package maximum the declared value charge applies and it applies to each one hundred dollars or portion of one hundred dollars of the total value declare now under plaintiff's reading they say the declared value charge does not apply to each one hundred dollars and it does not apply to the total value declared their interpretation is that direct odds with the contracts plain meaning and another reason we know that we have to read the fico in this way is not only because well first let me start with the way declared value is treated everywhere else in the shipping contract and we know we need to read terms in context of the contract as a whole everywhere else when the shipping contract uses the words declared value declaration of value declaring a value total declared value it's always talking about how the entire amount the shipper declares is value because under the terms declared value means the dollar amount is ship records and what's called a declared value field and under the terms declared value also means the dollar amount for which you p s becomes liable so there's no question for example that to recover five hundred dollars for a lost or damage in order to get her five hundred dollars if you have already said to her we cover we have charged you already in your base right for the first one hundred dollars you know and that's a very important question to recover five hundred dollars under the u b s terms section fifty and fifty one are scuse me fifty fifty point one and fifty point two it's very clear that to increase u p s default maximum liability you have to declare a value and p s liability is increased up to the value declared now under the car back amendment you p s has to limit has to come up with a reasonable amount that the that the shipment is worth and that's the base rate if you don't declare a value above that rate there's no additional charge but once you do declare a value above one hundred dollars then an additional charge applies and this is where you look to calculate it once you declare value you charge them twice for advice writing includes the up to one hundred dollar value if and the additional my aunt charges them again for the up to one hundred dollars i know the contracts disclosing that if there's no declared value or or potentially declared value up to  hundred dollars no additional charge but it says once you do declare a value above one hundred dollars there is an additional charge and it's based on the total value declared because now question my action is do you charge them under your analysis it seems to me would be charging them twice in the base right for the zero to one hundred and then again in the one hundred and a penny to fifty thousand dollars she would be charging them again for the same six hundred dollars but that assumes that the eighty five cent charge is perfectly calibrated to the risk of every one hundred dollar increment i don't think we can use but that there and that's why you're the one charging it so is that your is not the consumer's job if this may help alleviate the court's concerns this approach of charging for the entire value to clear it is is very common in fact i am an in the solo brief c specifically approved of this very same approach limiting liability to a certain amount but once a shipper goes over that amount the declared value charge applies and the entire value declare which includes that first  they allege that large shippers with auditors who monitor routinely shipping charges have called u p s on their charging for this first zero to one hundred dollar range when total declared value exceeds that amount and in response to demands for refunds u p s has either routinely  often actually provided refunds in recognition that those charges were written appropriate those allegations would seem to support their contention that under this language concerned is the is yours the only reasonable interpretation or might there be more than one and it seems to me that where you have an allegation that at the twelve b six stage you must accept as true that's the rule we use when the point of alleges that u b s has acknowledged that the charge was not proper and has routinely given these clients credit for that charge how can that not show that u p s itself has acknowledged this to be a reasonable interpretation of the contractual language assuming  we have to take these allegations as true they still don't matter for purposes of this appeal because the court is limited to looking at the terms of the contract and if they're clear how the court at this stage looks to the entirety of the complaint that it's what we are looking to in a twelve b six motion so and we must accept the entirety of the complaint is true and all it has to be under and it say as u p s gets these calls and they say we acknowledge that the charge was not proper and we will credit your account how can we not presume this look at this spot this twelve b six  that that the plaintiff's interpretation of the contract is also reasonable at a minimum because those allegations are extrinsic evidence and if you add up your p f to your p s position that the that there is only one way to interpret this see chart but u p s as an entity has officially taken the position by their allegation it may not prove to be true but has officially taken the position with people who complain that you are correct we will refund the money so i think we absolutely have to consider that u has already itself acknowledged that is a reasonable interpretation that's not extreme to it's you know you in the big vernacular you call a bend in mission against  correct the contracts past practices past interpretations all true you have to enforce the words as written and if i may briefly turn to the other to claim these as to section thirteen be plain just characterize have characterized the claim at argument like this that u p s has caused third party retailers to present the guide even if you take that as true at the claim still fails because third party retailers are not motor carrier section thirteen seven zero eight be targets persons who cause a motor carrier to present false or misleading information and as to i just enrichment the claim is preempted because it does not fit within the ones exception the reason is because plaintiffs here have argued have disclaimed any contractual agreement between third party retailer the third party retailer in turn entered into the shipping contract with u p s and finally they allege that you p s forced third party retailers to impose this report of the unfair charge now plaintiffs could have prot approach of contract claim against a third party retailer and the third party retailer could have brought a breach of contract claim against u p s but plaintiffs have to rely here on enforcement of state law to imply a contract between plaintiffs and u p s to do equity neither bolen's nor ginsburg contemplated that extension and it doesn't work because plaintiffs inherently must and rely on state law and policy as to what is just equitable and they seek to hold u p s liable for equitable remedies all of that is based on sources external to the contract between u b s and the third party retailers now the brown case reached relied on the same rationale to find that an unjust enrichment claim did not fit within the wall and exception and plaintiffs try to distinguish brown on its facts and say brown are the underestimate me claiming brown sot up and the fact the carrier's fee schedule with the customers but so to hear would plaintiffs on just enrichment claim up and if not completely displace section fifteen of u b s is contract with third party retailers or u p s disclaims promises to the customers of third party retailers so while plaintiffs may contend that they seek only to enforce the terms of the contract between u p s and third party retailers this but one vivid example of how they override and certainly am part of the terms of that contract for the same reasons just in richmond claim was preempted in brown it's preempted here thank you thank you very much very briefly your honour's i have my first point in rebuttal is simply that his wife could not explain any rationale for why his u p s gets to church twice for the first hundred dollars over when you declare a value over over three hundred dollars or over one hundred dollars i mean we understand the two fifty five minimum is the ministry of overhead fee we have no problem with that but you asked her judge strads she could not explain that she could not the only answer was to go back to an old s t v pre deregulation decision and now that we're in the world of contract they want to run away from the contract it doesn't  your response to her argument on the just enrichment line well the first point that i didn't get to make in open my initial presentation is that there is no u p s below her argument i think that you're referring to judge tranche is on the issue of preemption and the brown case was a very different case that was a case where there was a fee charged and the baggage carriers at the airport were paid a perk bag fee but they used to make more money by hurt their tips so the tips were barred once they put this per bag fee and for the for the skycaps well that there was an unjust enrichment claim of some sort it clearly was preempted it was a it wasn't it wasn't anything like holding a party to its own promises to its own voluntary under cake taking its use just by causing this this to be published through through their third party retailer and i don't know that that concept of holding a party to their voluntary undertaking that sounds like a contract claim  basically imposing equable remedy to to do justice that doesn't depend necessarily on the the agreement between parties but it can depend on a voluntary undertaking absolutely and that's what we're relying on here finally i'll just point out that it paid my sister counsel referred to their brief in document number seventeen page id's to ninety two to ninety three over into solo but these general principles are the same but certainly i don't think they get the pick and choose when it comes to state contract law they can't come here to this court and  or another motor carrier to present the guide they effectively concede that and that they're looking for discovery in order to learn facts from which they can amend the can point to state a viable claim procedurally that's not available avenue near twenty an ecb all and under the analogous cases from this court like new albany tractor case thank you thank you very much take the case under advisement thank you both for your arguments you may