[00:00:00] Speaker 02:
or 5906.

[00:00:01] Speaker 02:
We do have one case on for oral argument today.

[00:00:05] Speaker 02:
That's Tau versus Aerovas, case number 245413.

[00:00:09] Speaker 02:
Each side will have 15 minutes.

[00:00:14] Speaker 02:
If appellant would like to reserve time for rebuttal, please let me know and be aware that you are responsible for keeping track of your own time.

[00:00:21] Speaker 02:
Mr. Sweeney, it's my understanding that you are here on behalf of appellants.

[00:00:26] Speaker 00:
Yes, Your Honor.

[00:00:27] Speaker 00:
This is Paul Sweeney from Squateria.

[00:00:29] Speaker 00:
If you're on behalf of the appellant, Nam Thao.

[00:00:32] Speaker 00:
Good morning.

[00:00:34] Speaker 02:
Good morning.

[00:00:34] Speaker 02:
And would you like to reserve time for rebuttal?

[00:00:38] Speaker 00:
Yes, Your Honor.

[00:00:38] Speaker 00:
Three minutes, please.

[00:00:40] Speaker 02:
OK.

[00:00:40] Speaker 02:
And you may begin.

[00:00:43] Speaker 00:
Thank you.

[00:00:43] Speaker 00:
May it please the court.

[00:00:44] Speaker 00:
This appeal challenges the district court's dismissal of Mr. Thao's consumer protection claims, which are provided by statute, provided by common law based on the Prudential Rightness Doctrine.

[00:00:56] Speaker 00:
The complaint here alleges that Kossari, the appellee, sold 2 million defective air fryers at unreasonable risk of fire.

[00:01:04] Speaker 00:
The complaint further alleges that Kossari knew of that danger, but nevertheless misrepresented the safety features of the air fryers and failed to disclose the fire risk.

[00:01:15] Speaker 00:
Mr. Tao alleges that he purchased or overpaid defendant for defective air fryer that could cause fire based on misrepresentations and omissions.

[00:01:23] Speaker 00:
And he asserted statutory and consumer protection claims

[00:01:26] Speaker 00:
that were provided by the California legislature and sought statutorily prescribed restitution and actual impunitive damages.

[00:01:38] Speaker 00:
In this decision, the district court found that Mr. Tao had Article III standing based on a number of cases from this court, including Hinojos versus Coles, stating that an individual suffers an injury in fact under Article III when they purchase or overpay for a product based on the defendant's deception.

[00:01:56] Speaker 00:
However, and although the District Court found that Mr. Tallis' claims were constitutionally right as that analysis overlaps with the general Article III standing analysis, the District Court found that Mr. Tallis' claims were not prudentially right based on a COSARI recall, excuse me, based on a recall COSARI had implemented that provided consumers with the opportunity to obtain a replacement air fryer.

[00:02:20] Speaker 00:
The district court should reverse and remand the district court's decision for, excuse me, the appellate court should reverse and remand the district court's decision for three primary reasons.

[00:02:28] Speaker 00:
First, the court should aggregate the prudential rightness doctrine, at least insofar as it would apply in a private dispute like this one, where a plaintiff asserts common and statutory consumer protection claims and seeks monetary remedies provided by law.

[00:02:46] Speaker 00:
This Court has stated that a three-judge panel is not bound by prior circuit law when an intervening Supreme Court decision undermines existing precedent.

[00:02:56] Speaker 03:
Well, this Court has also stated the Prudential Rightness Doctrine is one that does apply to us.

[00:03:02] Speaker 03:
Are you aware of a decision called Stockton v. Brown earlier this year?

[00:03:08] Speaker 00:
Yes, Your Honor.

[00:03:08] Speaker 03:
Okay, so now we're not bound by that decision.

[00:03:14] Speaker 00:
Your Honor, this is

[00:03:16] Speaker 00:
This is a case involving statutory consumer protection laws.

[00:03:19] Speaker 00:
Generally, the Prudential Rightness Doctrine applies in the administrative law context.

[00:03:24] Speaker 00:
In fact, there's really no case from this circuit in a case like this one.

[00:03:32] Speaker 00:
To the extent the Prudential Rightness Doctrine applies at all, recent Supreme Court precedent seriously undermines any application.

[00:03:44] Speaker 03:
The Supreme Court's observation in Dry House does not relieve us of our obligation as a panel to follow our prudential rightness precedents.

[00:03:54] Speaker 00:
That may be true, Your Honor, but... If it's true, then we're bound by it.

[00:04:00] Speaker 00:
Your Honor, there's some key cases and some authority that that panel did not consider, including a case that I... Stop right there.

[00:04:07] Speaker 03:
You're telling me I can disregard what a prior panel says because we don't think they considered all the right cases?

[00:04:13] Speaker 03:
Is there any authority within our court's case law that supports that proposition?

[00:04:17] Speaker 03:
I think the answer is going to be no.

[00:04:21] Speaker 00:
I'll accept that, Your Honor, but in a case, trustees of Electrical Workers, Health and Welfare Trust versus Margeau, Margeau, this court abbreviated two circuit precedents based on broad language.

[00:04:31] Speaker 00:
This is a quote from the case.

[00:04:33] Speaker 00:
based on broad language of the Supreme Court and two cases that place a continuing validity of earlier holdings in Syria as doubt.

[00:04:41] Speaker 03:
I would argue that- I have just given you a citation to a case that speaks precisely to the Supreme Court president you're pointing at and the prudential rightness doctrine.

[00:04:52] Speaker 03:
And you're trying to tell me that because of what some other panel did concerning some other doctrine, I can disregard this precedent from earlier this year.

[00:05:01] Speaker 03:
I don't think that's the winning argument, counsel.

[00:05:04] Speaker 00:
OK, Your Honor, I understand.

[00:05:05] Speaker 00:
Then I'll move on to the next argument.

[00:05:07] Speaker 00:
Then the Prudential Rightness Doctrine should only be applied in the administrative law context, not a private dispute arising from consumer protection claims and seeking monetary remedies like this case.

[00:05:18] Speaker 00:
The Supreme Court first discussed the Prudential Rightness Doctrine in Abbott-Land v. Gardner, a 1967 case brought by a drug manufacturer challenging

[00:05:30] Speaker 00:
bringing a pre-enforcement challenge of FDA labeling requirements.

[00:05:34] Speaker 00:
In that case, the Supreme Court developed a two-part test for determining whether claims are prudentially right, recognizing that judicial action should be restrained when other policy branches act or will act.

[00:05:47] Speaker 04:
The Supreme Court... Council, let me accept your premise that the prudential ripeness doctrine should be limited to the administrative context.

[00:05:59] Speaker 04:
Why isn't this administrative adjacent?

[00:06:03] Speaker 04:
We have an administrative agency that has entered in and the APLEs here have consented to work with the agency to abide by certain statutory remedies to provide a full recall.

[00:06:20] Speaker 04:
It's an admission of possible wrongdoing and an acceptance of responsibility.

[00:06:25] Speaker 04:
If we were to allow this suit to go forward, why would any company ever agree to work with the CPSC again, if it was just simply an invitation for somebody else to file a class action suit?

[00:06:38] Speaker 04:
So why isn't this administrative context adjacent, if not directly involved in the administrative context?

[00:06:45] Speaker 04:
Even though the CPSC is not a party to this suit, it certainly is administrative adjacent.

[00:06:52] Speaker 00:
Your Honor, I'm not sure an administrative adjacent is the standard here in Abbott Labs.

[00:06:59] Speaker 00:
As the Supreme Court said, the purpose of the doctrine is to prevent judicial interference in ongoing government agency affairs.

[00:07:10] Speaker 00:
Here, the CPSC regulation at play states expressly that a corrective action plan like the replacement and recall on issue in this case have no legally binding effect.

[00:07:20] Speaker 00:
Moreover, the Consumer Protection and Safety Act, which is a statutory law passed by Congress, says that compliance with consumer product safety rules shall not relieve any person from liability of common law or under state statutory law to any person.

[00:07:36] Speaker 00:
In other words, Congress itself has stepped in here and says that compliance with a corrective action plan, like it started here, doesn't relieve it from liability for state consumer protection laws, like the ones that are being brought here.

[00:07:51] Speaker 00:
The Supreme Court has stated that the federal judiciary's obligation to hear cases within its jurisdiction is virtually unflagging.

[00:08:04] Speaker 00:
In Lexmark, the court also said that just as a court cannot create a cause of action, it cannot ignore a cause of action.

[00:08:13] Speaker 00:
Here, that's exactly what Kusari is attempting to do because it's decided that it can

[00:08:19] Speaker 00:
block access to these laws, block access to statutorily prescribed remedies by offering a replacement remedy that we argue doesn't even cover plaintiff's individual claims, much less the claims of the class.

[00:08:34] Speaker 00:
And the CPSC's involvement, as stated by the plain language of the implementing regulations and the statute itself, makes it clear that Mr. Talbot allowed to pursue these claims.

[00:08:45] Speaker 00:
So really the district court's determination was even more inappropriate here because

[00:08:50] Speaker 00:
It ignored statutory language within this Consumer Product Safety Act itself.

[00:08:57] Speaker 02:
Council, you stated a few seconds ago that the recall somehow is inadequate.

[00:09:04] Speaker 02:
And if that's not correct, please correct me.

[00:09:06] Speaker 02:
But tell me, what's the issue with the recall?

[00:09:10] Speaker 02:
Why isn't that sufficient?

[00:09:12] Speaker 00:
Well, on an individual level, just as an example, one type of damage is that Mr. Towsky's here are punitive damages.

[00:09:20] Speaker 00:
which are prescribed by statutory law in the California Civil Code, which states that in addition to actual damages, plaintiff in a fraud case is entitled to punitive damages.

[00:09:32] Speaker 00:
So the replacement remedy doesn't offer that, but... What actual damages has he suffered?

[00:09:39] Speaker 00:
He had a pocket expense to pay for the air fryer, Your Honor.

[00:09:44] Speaker 03:
Well, he bought the air fryer.

[00:09:45] Speaker 03:
He got the air fryer.

[00:09:46] Speaker 03:
The air fryer has worked for him.

[00:09:48] Speaker 03:
It hasn't exploded or caused any injury to him.

[00:09:51] Speaker 03:
So I understand at a theoretical level, but I'm having a hard time figuring out how he has been injured.

[00:10:00] Speaker 03:
He wanted an air fryer.

[00:10:02] Speaker 03:
He's apparently going to be offered an air fryer that doesn't have the defect that some others have suffered from.

[00:10:08] Speaker 03:
What's the injury?

[00:10:10] Speaker 00:
The injury is that the air fryer has a defect that has been acknowledged by Kosari that has been the subject of 205 reports of fire and burning and injuries.

[00:10:20] Speaker 03:
And how has this plaintiff been injured?

[00:10:23] Speaker 00:
Because he bought and paid for an air fryer that's worthless.

[00:10:27] Speaker 00:
It cannot be used by Kosari's own admission.

[00:10:30] Speaker 03:
He did use it.

[00:10:31] Speaker 03:
He was not injured by it.

[00:10:32] Speaker 03:
So I'm still trying to figure out how the injury is anything but theoretical.

[00:10:38] Speaker 00:
The injury isn't theoretically honored because the complaint plausibly alleges a design defect that renders the product useless.

[00:10:45] Speaker 00:
The fact that he used it without incident doesn't mean that he hasn't suffered injury because he cannot use it.

[00:10:51] Speaker 00:
In a way, he's been lucky.

[00:10:53] Speaker 03:
And so he can get an air fryer that works and doesn't pose that risk, but he's not interested in taking that.

[00:11:01] Speaker 00:
Your Honor, I

[00:11:03] Speaker 00:
I believe that's kind of a cart before the horse argument because there's no legal or contractual authority that mandates him to accept this replacement air fryer.

[00:11:13] Speaker 00:
In fact, we argue that highly persuasive case law in the standing and mootness context actually says this type of replacement offer, this constitutes a legal nullity.

[00:11:22] Speaker 00:
It doesn't do anything to impact his standing in the case.

[00:11:28] Speaker 00:
And that's, that's in Campbell, Ewald, uh, Ewald versus Gomez and- I know about Campbell, Ewald.

[00:11:34] Speaker 03:
I was on the case, uh, but I'm still trying to find out if his, his purported injury is more than theoretical.

[00:11:42] Speaker 03:
And so far, I hear what you say.

[00:11:47] Speaker 00:
There's many, many cases, John, where a safety defect provides a basis for a consumer protection laws.

[00:11:55] Speaker 00:
I think it really is, is article three standing and his injury in fact is

[00:11:59] Speaker 00:
is a matter, as a matter of law, is plausibly alleged.

[00:12:03] Speaker 00:
The question about whether the replacement remedy somehow provides recourse that negates his Article 3 standing, Chen versus Allstate, I think undermines that proposition entirely.

[00:12:15] Speaker 00:
And Cosari has really cited no other legal or contractual basis to force this replacement remedy on Mr. Tao in lieu of the

[00:12:28] Speaker 00:
legally provided remedies under the Consumer Protection Laws of California.

[00:12:34] Speaker 02:
Has your client been denied?

[00:12:40] Speaker 02:
I mean, has he attempted to either get a refund or get a new air fryer?

[00:12:44] Speaker 00:
No, Your Honor.

[00:12:48] Speaker 00:
Instead, he's adopted to pursue his statutory rights for himself and the class.

[00:12:57] Speaker 00:
And with that, I'll stop and save the rest of the time for rebuttal.

[00:13:03] Speaker 00:
Thank you.

[00:13:04] Speaker 02:
Thank you, Council.

[00:13:05] Speaker 01:
Ms.

[00:13:06] Speaker 01:
Carlson.

[00:13:08] Speaker 01:
Good morning, and may it please the court.

[00:13:10] Speaker 01:
My name is Sarah Carlson, and I'm here on behalf of Appellee Aravaz Corporation.

[00:13:15] Speaker 01:
Your honors, the timeline here matters.

[00:13:18] Speaker 01:
In May 2019, Mr. Tao bought an air fryer that worked exactly as intended.

[00:13:24] Speaker 01:
He used it for nearly four years without issue.

[00:13:28] Speaker 01:
In February 2023, together with the Consumer Product Safety Commission, Kasori announced a recall.

[00:13:35] Speaker 01:
After less than a fraction of 1% of units reportedly had overheating issues, something Mr. Tao's unit never exhibited, it was only after and because of Kasori's announcement that Mr. Tao and his council rushed to the courthouse to file a complaint without allowing the recall to play out.

[00:13:56] Speaker 01:
Mr. Tao's complaint makes it clear that he challenges the sufficiency of the recall while refusing to participate in it.

[00:14:04] Speaker 01:
Yet the recall was submitted to and approved by the CPSC, the federal regulatory agency charged with supervising recalls and approving their remedies.

[00:14:14] Speaker 01:
And it provides a means to make Mr. Tao whole.

[00:14:18] Speaker 01:
Indeed, as plaintiffs brief alleges, Mr. Tao may have even received a full refund had he registered for the recall.

[00:14:27] Speaker 01:
In light of this timeline and these undisputed facts, the district court properly dismissed this case on prudential rightness grounds.

[00:14:34] Speaker 01:
This court should affirm.

[00:14:36] Speaker 01:
Before proceeding to the merits, I'll briefly outline my argument.

[00:14:39] Speaker 01:
I'll address three key points.

[00:14:42] Speaker 01:
First, as I touched upon, the district court correctly dismissed the case on prudential rightness grounds.

[00:14:48] Speaker 01:
Second, the court could have alternatively dismissed the case under the closely related doctrine of prudential movedness.

[00:14:56] Speaker 01:
And third, Mr. Tao lacks Article III standing.

[00:15:00] Speaker 01:
Turning to the first point, prudential rightness remains a viable doctrine and applies here because although Mr. Tao has had ample opportunity to participate in the CPSC recall, he just won't.

[00:15:14] Speaker 01:
Yet he still asks this court to adjudicate whether the recall is effective.

[00:15:19] Speaker 01:
And as the district court properly recognized, Mr. Tao is asking the court to deal in hypotheticals based on a remedial process in which he's refused to engage.

[00:15:30] Speaker 01:
And this is exactly why the district court dismissed on prudential rightness grounds and why the Ninth Circuit's recent decision in Stockton v. Brown requires affirmance.

[00:15:40] Speaker 01:
Stockton makes clear that prudential rightness remains binding law.

[00:15:45] Speaker 01:
This court's precedent also confirms that prudential rightness is not limited to administrative cases.

[00:15:53] Speaker 01:
Chandler was a class action, asserting claims under California's unfair competition law, among others.

[00:16:01] Speaker 01:
Coleman applied prudential rightness to a private party dispute in the bankruptcy context.

[00:16:08] Speaker 01:
And consistent with this controlling precedent, the district courts have applied the doctrine in the warranty context in the analogous cases of Elkins v. Honda and Guan v. Mercedes Benz.

[00:16:20] Speaker 01:
Prudential rightness applies whenever the claimed injury is speculative and the facts undeveloped.

[00:16:26] Speaker 01:
Exactly our case.

[00:16:28] Speaker 01:
Principle.

[00:16:29] Speaker 01:
which predates all of the decisions I just referenced, does not help Mr. Tau.

[00:16:35] Speaker 01:
That singular decision only declined to extend the Abbott Labs Prudential Rightness Task to a private contract dispute, a narrow bilateral setting with no broader public or regulatory implications.

[00:16:49] Speaker 01:
But as has been acknowledged, the broader public and regulatory implications do exist here.

[00:16:55] Speaker 01:
At bottom, this is an administrative case.

[00:16:58] Speaker 01:
This lawsuit absolutely implicates a parallel administrative proceeding that Mr. Tao is explicitly challenging.

[00:17:05] Speaker 01:
The recall is being supervised by the CPSC, evaluating the effectiveness of a CPSC supervised recall that Mr. Tao never used

[00:17:16] Speaker 01:
is precisely the kind of intrusion into an ongoing administrative process that prudential rightness counsels against.

[00:17:23] Speaker 01:
And jurisdictional discovery can't change that.

[00:17:26] Speaker 01:
As long as Mr. Tao refuses to participate in the recall, there's no additional information to uncover about his personal experience.

[00:17:34] Speaker 01:
The obstacle here is his own non-participation, not any factual gap in the record that discovery could fill.

[00:17:42] Speaker 01:
Second,

[00:17:43] Speaker 01:
This case also fails on prudential mootness grounds because the recall is already working to provide complete relief to consumers under CPSC supervision and has been doing so for nearly three years now.

[00:17:56] Speaker 01:
As then Judge Gorsuch explained in Winsler v. Toyota,

[00:18:00] Speaker 01:
Once a manufacturer initiates a recall and sets into motion the great grinding years of the statutorily mandated and administratively overseen national recall process, judicial intervention serves no purpose.

[00:18:17] Speaker 01:
Judge Gorsuch also noted that perhaps the lawyers would benefit, but no one else would.

[00:18:23] Speaker 01:
And that's exactly our situation.

[00:18:26] Speaker 01:
Kusori's recall has been operating for nearly three years under CPSC oversight,

[00:18:31] Speaker 01:
Appellant, by contrast, has refused to participate and offers only speculation about inadequacy without ever attempting to use the recall.

[00:18:41] Speaker 01:
And as Winsler makes clear, the mere possibility of failure by a coordinate branch of government is not enough to defeat mootness.

[00:18:50] Speaker 03:
Do you have any information as to what proportion of the purchasers, or if limited to California, the proposed class members,

[00:18:59] Speaker 03:
have participated in the recall?

[00:19:03] Speaker 01:
The only information that's publicly available in the record, Your Honor, is that the recall has been ongoing and there has been no reannouncement and no change of remedy.

[00:19:14] Speaker 01:
The CPSC doesn't publish the take rate of CPSC-regulated recalls.

[00:19:20] Speaker 01:
That information is confidential under the Consumer Product Safety Act.

[00:19:25] Speaker 01:
But it has been going on for three years and there's been no reannouncement, nor has there been a change in remedy.

[00:19:34] Speaker 01:
Third, Mr. Tao can't satisfy Article 3.

[00:19:38] Speaker 01:
To begin with, he suffered no injury.

[00:19:42] Speaker 01:
His product never exhibited a defect.

[00:19:45] Speaker 03:
Well, he arguably suffered at least a delay injury in the sense that once the word gets out that

[00:19:54] Speaker 03:
this particular product may not be safe, an intelligent consumer would stop using it and wouldn't have the benefit of being able to use it for whatever period of time it would take until there was a replacement.

[00:20:09] Speaker 03:
Do you have any information as to what that period of time would be?

[00:20:12] Speaker 03:
How long it took between the announcement going out and actual replacement of the product?

[00:20:20] Speaker 01:
The replacement of the product went in accordance with the recalls mandate.

[00:20:25] Speaker 01:
I don't have the exact timeframe, nor is that in the record.

[00:20:29] Speaker 01:
But I do want to mention that the Supreme Court says that a hypothetical risk cannot create injury in fact.

[00:20:37] Speaker 01:
That's trans-union.

[00:20:38] Speaker 01:
And this court has applied the same validity.

[00:20:40] Speaker 03:
Well, it's not a hypothetical risk.

[00:20:41] Speaker 03:
If you get worried that this thing might explode, you're going to stop using it.

[00:20:45] Speaker 03:
And so you don't have the benefit of that product you already paid for for at least some period of time.

[00:20:51] Speaker 03:
Isn't that a loss?

[00:20:53] Speaker 01:
Well, it depends when the plaintiff registers and provided info.

[00:20:58] Speaker 01:
But as soon as he did so, he registered and provided the necessary information.

[00:21:02] Speaker 01:
He would have received a brand new product of equal or greater value, not limited to an air fryer, by the way, in a brand new limited warranty.

[00:21:12] Speaker 01:
In other words, he would have been made full plus.

[00:21:15] Speaker 03:
Well, after some period of time, you're still, you're not speaking to the period of time and understand you may not know what that is, but I have to assume it'd be at least some number of months.

[00:21:26] Speaker 03:
So I got this product I paid for, but I'm afraid to use for some period of months.

[00:21:31] Speaker 03:
Isn't that at least on some level an injury?

[00:21:36] Speaker 01:
Uh, the case law doesn't say so, your honor, because there's been a case law that says it isn't.

[00:21:41] Speaker 03:
I mean, on its face, it obviously is.

[00:21:43] Speaker 03:
If, if I've got a car that's broken and I can't use it for six months, what am I supposed to do?

[00:21:49] Speaker 03:
Fortunately, an air fryer may not be as critical to daily life as a car, but he's paid for something he can't use.

[00:21:56] Speaker 03:
I, I'm not sure I can understand that there's no injury at all.

[00:22:00] Speaker 03:
It may not be the injury he's seeking, but I think he's been injured.

[00:22:06] Speaker 01:
I would say that in, and these are district court cases, your honor, but that in Combs, Sugisawara and Charlton, those were all cases where a plaintiff had some delay either by virtue of participating in a CPSC recall or in a warranty program.

[00:22:23] Speaker 01:
And the court there found no standing for injury despite that delay.

[00:22:28] Speaker 03:
So there's an injury, but it's too small to count.

[00:22:38] Speaker 01:
Your honor, I want to say also that any purported injury, such as this delay that we're talking about, would be entirely traceable to Mr. Tau's own refusal to participate in the recall in a timely manner.

[00:22:56] Speaker 01:
And that recall would give him the very benefit of the bargain he claims to have lost.

[00:23:02] Speaker 01:
As I said, Combs, Sugisawara, and Charlton all make the same point

[00:23:06] Speaker 01:
When a recall cures the alleged defect and the plaintiff declines to use it, the remaining harm is self-inflicted and it can't satisfy Article 3.

[00:23:18] Speaker 01:
Accordingly, this court should affirm the lower court's dismissal.

[00:23:23] Speaker 01:
Look, as earlier stated, CPSC recalls are designed to promote transparency and to protect consumers by encouraging companies to raise their hand

[00:23:35] Speaker 01:
and provide a remedy.

[00:23:38] Speaker 01:
Letting an uninjured plaintiff weaponize that process would undermine those objectives.

[00:23:47] Speaker 01:
And after three years, Mr. Tao's refusal to participate in the recall, which his co-plaintiff did so and received a full refund, reinforces that this is a lawyer-driven lawsuit.

[00:24:02] Speaker 01:
whether under prudential rightness, prudential mootness, or Article 3, Mr. Tao's claims cannot and should not survive.

[00:24:13] Speaker 01:
One more thing, Your Honor, going back to your test, under the doctrine of prudential or under your injury theory, under your doctrine of prudential rightness, Mr. Tao is

[00:24:26] Speaker 01:
entitled to participate in the recall process.

[00:24:30] Speaker 01:
And then once the recall process is over, he can see what, if any, claim is left after participating.

[00:24:38] Speaker 01:
It's my contention that any remaining claim would be non-justiciable due to lack of standing and lack of injury.

[00:24:47] Speaker 01:
But we're not depriving him of his day in court, this unflagging obligation to have his claims heard.

[00:24:54] Speaker 01:
We are simply saying,

[00:24:56] Speaker 01:
that he should follow the recall process so that the court does not have to assess on multiple occasions whether or not he still has standing to pursue his claims.

[00:25:08] Speaker 01:
Thank you, Your Honors.

[00:25:10] Speaker 01:
Thank you.

[00:25:12] Speaker 01:
Mr. Sweeney?

[00:25:14] Speaker 00:
Thank you, Your Honor.

[00:25:15] Speaker 00:
So I'll address counsel's first point regarding whether the Prudential Right and his doctrine should be cabined to administrative cases.

[00:25:25] Speaker 00:
They cite Chandler.

[00:25:26] Speaker 00:
That case is very much an outlier.

[00:25:27] Speaker 00:
The Prudential Rightness Factors were considered, but the doctrine itself wasn't even mentioned, nor was consideration of principle.

[00:25:35] Speaker 00:
In another case, Golden vs. California Emergency Physicians Medical Group, where the court also refused to apply the Prudential Rightness Doctrine in private contract dispute centering on the terms of a settlement agreement.

[00:25:50] Speaker 00:
Really, the district court's view of the Prudential Rightness Doctrine improperly transformed and expanded the doctrine from one intended to prevent judicial interference in the ongoing affairs of government agencies into a doctrine that puts a private defendant in the driver's seat and allows it to block litigation, access to statutory prescribed monetary remedies, and also allows it to unilaterally provide a remedy of its own choosing without any meaningful showing

[00:26:20] Speaker 00:
that remedy provided any meaningful relief to the clients at large.

[00:26:24] Speaker 00:
And even during this oral argument, again, defense counsel has remained silent on the amount of people who received air fryers and had the amount of California citizens who participated in the recall.

[00:26:36] Speaker 03:
You say there's no meaningful relief, but if the customer is able to get the product or a different product from the company up to whatever value and so forth and get a new warranty,

[00:26:49] Speaker 03:
How is that not meaningful relief?

[00:26:52] Speaker 03:
The product that was purchased is obtained.

[00:26:55] Speaker 00:
The question remains, Your Honor, how many of these, how many of these class members even received notice?

[00:26:59] Speaker 00:
How many of them received replacement in our priors?

[00:27:01] Speaker 00:
How many received refunds, even though that wasn't supposed to be part of the recall, just indicates that the replacement recall was sort of just a pretext to avoid liability as we alleged in the complaint.

[00:27:14] Speaker 02:
That's why- I want you to- Oh, go ahead, Judge Dalbaugh.

[00:27:17] Speaker 00:
Go ahead.

[00:27:18] Speaker 02:
I want you to address the self-inflicted harm.

[00:27:22] Speaker 02:
I understand what you're saying in terms of, you know, there's people who may have not received notice and things like that, but your client received notice.

[00:27:28] Speaker 02:
Your client knows that there is a recall and that he has, you know, he can request either a new air fryer or an equivalent or even potentially a refund.

[00:27:38] Speaker 02:
What do we make of that?

[00:27:39] Speaker 02:
Can people just say, eh, forget it.

[00:27:41] Speaker 02:
I want to sue you.

[00:27:42] Speaker 02:
I want punitives.

[00:27:44] Speaker 00:
Your honor.

[00:27:47] Speaker 00:
The injury here is not self-inflicted.

[00:27:49] Speaker 00:
Just as an initial matter, this probably suffers from a safety defect.

[00:27:53] Speaker 00:
It cannot be used.

[00:27:54] Speaker 00:
So that injury exists.

[00:27:55] Speaker 00:
The question really comes down to, do they have to participate in the replacement recall?

[00:28:00] Speaker 00:
And there's no legal or contractual authority that requires my plaintiff to do that, particularly when he's seeking to seek compensation for the class as well.

[00:28:12] Speaker 00:
And it's not a self-inflicted harm.

[00:28:15] Speaker 00:
It's his right under the law.

[00:28:17] Speaker 00:
And as the Supreme Court stated in Lexmark, the federal judiciary cannot ignore its duty to hear cases.

[00:28:26] Speaker 04:
I want to follow up on both of my colleagues' questions.

[00:28:30] Speaker 04:
Do you have a council for the company was not able to tell us what the time was between noting the defect and issuing the recall.

[00:28:40] Speaker 04:
Do you have any idea what that timeline was?

[00:28:44] Speaker 00:
The only idea I have is from what we alleged in the complaint, which is complaints from hundreds of consumers on on Facebook and on the Internet and various forms saying that.

[00:28:54] Speaker 04:
No, I didn't ask how many people.

[00:28:57] Speaker 04:
I asked the timeline.

[00:28:59] Speaker 04:
Do you have any idea from the time that the defect was first noted until the time that the recall or refund was proposed?

[00:29:06] Speaker 04:
Do you have any idea how much time that was?

[00:29:08] Speaker 04:
This is to go to Judge Clifton's question about the damages that your client might have suffered from having been from the non-use of a fryer.

[00:29:16] Speaker 00:
The delay from what I can garner from public reports is egregious, Your Honor.

[00:29:21] Speaker 00:
It ranged from months or to never receiving a replacement at all.

[00:29:25] Speaker 00:
Instead, when Casari recognized that it couldn't provide replacements, because we argue the replacement remedy is really a pretext, it started just handing out checks to people, even though it says you're not entitled to refunds.

[00:29:37] Speaker 04:
Okay.

[00:29:38] Speaker 04:
All right.

[00:29:38] Speaker 04:
Let me shift the question.

[00:29:40] Speaker 04:
So, counsel, if your client had diligently pursued either a refund or a new friar, and the defendant had properly and promptly provided either a refund or a new friar, does he still have a lawsuit?

[00:30:03] Speaker 00:
He has a loss of use of his product for a certain amount of time.

[00:30:06] Speaker 00:
Loss of use is recognized in plenty of case law as a form of injury.

[00:30:14] Speaker 04:
But again, you don't know what time that would be, what the time frame would be for that.

[00:30:19] Speaker 00:
Based on the public reports I've seen, it would take months, at least weeks, but months, perhaps never, to receive a replacement.

[00:30:28] Speaker 00:
And said, sorry, would provide you a refund if you made enough noise.

[00:30:37] Speaker 04:
Okay.

[00:30:38] Speaker 04:
So, so what, what your lawsuit might really boil down to is simply the loss of use of product.

[00:30:45] Speaker 04:
If we go with you want both compensation and, and punitives.

[00:30:51] Speaker 00:
Uh, that would be a form of damages, your honor, but we, we've also maintained that we're, we're entitled to a full refund in our rights under the substantive and procedural law, which allows us to bring these claims for Mr. Tao himself.

[00:31:03] Speaker 00:
And on behalf of the class, many of whom are individuals that

[00:31:07] Speaker 00:
have no idea the recall even exists, never received a replacement, and never received any money.

[00:31:12] Speaker 00:
It's very, very likely that hundreds of thousands of class members never received any compensation for this scheme, excuse me, for Kosari's deception.

[00:31:22] Speaker 00:
And as far as public policy is concerned, Kosari can say, well, we're here trying to do the right thing.

[00:31:27] Speaker 00:
But in reality, there was 205 reports of fire, nine reports of injury, 30 some odd reports of personal property damage,

[00:31:35] Speaker 00:
To come in here and say we're doing the right thing is a little bit disingenuous when in reality, that means they ignored 204 reports of fire, greatly placing consumer lives in danger.

[00:31:46] Speaker 00:
And we feel that the court should reverse and remand for consideration of this case on the merits.

[00:31:53] Speaker 00:
And with that, I thank you for your time, and I'll conclude my argument.

[00:31:58] Speaker 02:
Thank you, counsel.

[00:31:59] Speaker 02:
The matter is now submitted.

[00:32:00] Speaker 02:
This concludes our arguments for today.

[00:32:03] Speaker 02:
Thank you again and thank you to the court staff for their wonderful assistance.