[00:00:05] Speaker 03:
Good morning, Your Honors.

[00:00:06] Speaker 03:
May it please the Court.

[00:00:09] Speaker 03:
I will address the issues that the Court raised in its June 13th order.

[00:00:13] Speaker 03:
I'd like to make a few preliminary points first that I believe are related to those two issues and that will lead into those two issues.

[00:00:22] Speaker 03:
The district court's decision was erroneous for multiple reasons, including two key errors that led to other flawed conclusions.

[00:00:28] Speaker 03:
The district court's first and most critical error was in its analysis of the alleged harm.

[00:00:33] Speaker 03:
It narrowly focused on whether plaintiffs properly pled that Color Health already disclosed confidential information to third parties and found that it was not well-pled.

[00:00:47] Speaker 03:
By limiting its focus to this narrow point, the district court missed the core allegation in the complaint, which was the defendants, the employer, that disclosed the information and violated federal and state law.

[00:01:02] Speaker 01:
Sorry, could you explain that?

[00:01:04] Speaker 01:
So I thought that the employer caused the employees to go get tested and then it would be the employees giving that testing information to the testing company.

[00:01:13] Speaker 01:
How are you saying that the employer disclosed the information?

[00:01:16] Speaker 03:
By forcing the employees to disclose this confidential information and consent to the privacy waivers through pain of discipline.

[00:01:24] Speaker 03:
up to and including termination.

[00:01:25] Speaker 01:
But it's indirect, right?

[00:01:26] Speaker 01:
It comes through the employees giving the information and consenting, not really directly from the employer.

[00:01:31] Speaker 03:
That's correct, but the employees had no choice.

[00:01:33] Speaker 03:
They'd lose their job if they didn't do it.

[00:01:34] Speaker 01:
Okay, so as to that, so I think you have like two categories of things you're upset of or you want.

[00:01:40] Speaker 01:
One category is tell the employer to stop forcing the employees to do that.

[00:01:46] Speaker 01:
And then the other thing is tell the employer to tell the testing company to do various things.

[00:01:51] Speaker 01:
It seems like you're starting with the tell the employer to stop telling the employees category.

[00:01:55] Speaker 01:
And as to that category, I'm wondering why there was an imminent injury at the time you filed the suit because they had already stopped that policy as I understand it.

[00:02:04] Speaker 03:
Well, the injury is because color health now retains this confidential information subject to the privacy waivers.

[00:02:11] Speaker 03:
And it basically can do what it wants with this information as a car wash.

[00:02:15] Speaker 01:
OK, so now you're jumping to the other category, tell color to not do that.

[00:02:18] Speaker 01:
That's the other category of what you want is have the employer tell color various things.

[00:02:22] Speaker 01:
But I think you started with tell the employer to stop requiring the employees to do various things.

[00:02:27] Speaker 03:
Right.

[00:02:27] Speaker 03:
Well, yes, that's remedies one through four, which is declaratory injunctive relief.

[00:02:31] Speaker 03:
The defendant's position throughout testing and throughout this litigation is that it didn't do any harm, that it didn't violate the law, and that if testing were to recur, it would do the same thing again.

[00:02:41] Speaker 03:
And remedies one through four goes to that saying that this conduct was unlawful and that defendants should not do it again.

[00:02:49] Speaker 01:
And so they had stopped the conduct by the time you filed the suit, right?

[00:02:54] Speaker 01:
There was no mandatory testing by the time you filed the suit.

[00:02:57] Speaker 03:
Yes, it was in September 2022.

[00:03:00] Speaker 01:
And so how did you meet the eminence requirement for standing for the injunctive relief when there was nothing happening anymore?

[00:03:06] Speaker 03:
It was a concern that the defendants would restart the program.

[00:03:11] Speaker 03:
The order in September 2022 is that it was basically winding down the program.

[00:03:15] Speaker 03:
It wasn't necessarily finished completely.

[00:03:17] Speaker 03:
It didn't say all testing would stop.

[00:03:19] Speaker 03:
It said that testing would stop for certain situations.

[00:03:24] Speaker 03:
So it left open.

[00:03:24] Speaker 02:
You're asking this court to issue an advisory opinion, essentially, about some possible future harm that might occur to your client.

[00:03:33] Speaker 03:
With respect to remedies one through four, yes.

[00:03:36] Speaker 02:
Correct.

[00:03:36] Speaker 03:
But not remedies five through nine.

[00:03:38] Speaker 02:
OK.

[00:03:39] Speaker 02:
So with respect to remedies one through four, you're asking this court for an advisory opinion for some future action that might occur.

[00:03:46] Speaker 02:
And for the latter remedies, you're asking for an order that would require the defendant to tell color, not to

[00:04:00] Speaker 02:
release the information of your clients.

[00:04:01] Speaker 02:
Is that correct?

[00:04:02] Speaker 03:
Yes, to destroy the information or return it.

[00:04:04] Speaker 02:
Do they have control over color?

[00:04:06] Speaker 03:
The defendants have bargaining power as an arm of the state to enter an agreement with Color Health.

[00:04:12] Speaker 02:
What I'm struggling to understand is how a court order that addresses the injury of color's future disclosure or the retention of that data can be made effective by an order to the defendant.

[00:04:28] Speaker 03:
An order would force the defendants to use all best efforts to get color health to return and destroy that information.

[00:04:34] Speaker 02:
How is that order enforceable?

[00:04:39] Speaker 03:
The court could supervise the defendants to make sure that they're actually reaching out to color health and trying through their bargaining power as an arm of the state to enter an agreement with color health.

[00:04:50] Speaker 01:
But so there are many cases that talk about redressability in third parties and say that if the defendant doesn't have control over the third party, that kind of

[00:04:58] Speaker 01:
interaction, there's no redressability, including we just got a 28-J letter about the recent Supreme Court case, Murthy v. Missouri.

[00:05:05] Speaker 01:
So can you address how you think you can get around Murthy on this redressability problem for those parts of your claim?

[00:05:13] Speaker 03:
Well, Murthy is distinguishable for multiple reasons.

[00:05:16] Speaker 03:
First, that case was out of the pleading stages.

[00:05:20] Speaker 03:
Extensive discovery occurred, and the plaintiff still could not show that defendants engaged in unlawful conduct.

[00:05:27] Speaker 01:
That's not the part of it I'm talking about.

[00:05:28] Speaker 01:
I'm talking about the redressability part, where the court says the defendants have no control over the third parties who would do these various things.

[00:05:36] Speaker 01:
And so telling the defendants to stop asking those third parties to do things has no effect on whether the third parties continue to do them or not.

[00:05:43] Speaker 01:
And here, you can have your defendants ask color, but it has no control over whether color continues to do something or not.

[00:05:50] Speaker 03:
Well, it was my understanding of the Murthy decision that the Supreme Court ultimately found that the government was not the cause of the censorship.

[00:06:00] Speaker 01:
And then they go on to say, and even if they were, there's no redressability because this is a third party problem.

[00:06:08] Speaker 03:
Except in this case, the state is in contract with Color Health, and those contracts are still in existence.

[00:06:15] Speaker 03:
And as an arm of the state, defendants can use its bargaining power to get a contracting party of the state to follow through with those remedies.

[00:06:25] Speaker 04:
And remind me again why Color wasn't brought into this?

[00:06:30] Speaker 03:
The main violation of law occurred because of the defendants, the defendants' behavior of forcing these employees to give up their rights.

[00:06:38] Speaker 04:
But if there's no control.

[00:06:39] Speaker 04:
I'm sorry?

[00:06:40] Speaker 04:
If there's no control.

[00:06:41] Speaker 02:
You have no claims against color, correct?

[00:06:44] Speaker 02:
I mean, color is an entity that collects data when it provides this testing.

[00:06:47] Speaker 02:
It retains the data and it disseminates it.

[00:06:50] Speaker 02:
That's something that it does as part of its business, correct?

[00:06:53] Speaker 02:
That's correct.

[00:06:54] Speaker 02:
So your clients have no claims against color.

[00:06:57] Speaker 02:
That's why color wasn't brought in.

[00:06:58] Speaker 02:
But now you're asking for an order from the court that somehow requires color to take action that nobody can actually enforce them to do.

[00:07:06] Speaker 03:
Well, we're asking the court to order the defendants to use its efforts to get Color Health to carry out those actions.

[00:07:14] Speaker 02:
And can you cite to any authority in which a court has ordered a defendant to then somehow require a separate third party over which it has no control to comply with that order?

[00:07:27] Speaker 03:
No, Your Honor.

[00:07:28] Speaker 01:
Do you want to reserve the remaining time?

[00:07:33] Speaker 03:
Yes.

[00:07:34] Speaker 03:
Thank you.

[00:07:48] Speaker 00:
Good morning, Your Honors, and may it please the court, Deputy Attorney General Paloma Carrero for defendants and appellees.

[00:07:54] Speaker 00:
As the court has emphasized, there are two key issues here, whether there's an imminent injury that can be redressable via the suit.

[00:08:03] Speaker 00:
The answer to both of those questions is no.

[00:08:06] Speaker 00:
There is no imminent injury because as the court pointed out, the testing program has ended.

[00:08:11] Speaker 00:
The waiver occurred in the past.

[00:08:15] Speaker 00:
The testing program, even though COVID is ongoing, has not been brought back.

[00:08:20] Speaker 04:
What about their argument that, well, they can bring them back in the future?

[00:08:22] Speaker 04:
What about that argument?

[00:08:24] Speaker 00:
There's no indication that there is a valid contract between the California Department of Public Health and color for the provision of future services.

[00:08:32] Speaker 00:
There's no indication that even if we brought back testing, even with color, that those same policies that they find objectionable would still be applicable in this case.

[00:08:42] Speaker 02:
But you would agree that if at some future time that policy was reinstated and the things that the plaintiffs are complaining about or to reoccur, they would have the opportunity to bring a challenge at that time, right?

[00:08:55] Speaker 00:
I would say that the policy we had in place at that time was very specific in context, Your Honor.

[00:09:01] Speaker 00:
It was the state responding to emergency situation of trying to find a vendor to make sure that we're testing these first responders that are coming into contact with the public and we can get them tested and protect them and the public.

[00:09:15] Speaker 00:
Those same circumstances are not at play here now.

[00:09:18] Speaker 00:
We have different ways by which we can handle COVID.

[00:09:21] Speaker 00:
Now you can just walk into your CVS, get a test,

[00:09:23] Speaker 00:
That's right.

[00:09:24] Speaker 02:
I don't disagree with you.

[00:09:26] Speaker 02:
I guess what I'm saying is, I think your friend on the other side agreed that they're essentially seeking an advisory opinion from this court with respect to a policy that's no longer in effect.

[00:09:35] Speaker 02:
But they fear that it might come into effect at some point in the future.

[00:09:38] Speaker 02:
And if that were to happen, that would be a different case.

[00:09:41] Speaker 02:
That's not this case.

[00:09:42] Speaker 02:
That's not us issuing an advisory opinion.

[00:09:44] Speaker 02:
But there would be an opportunity for the plaintiffs to challenge whatever future policy, even if it's the same one, that were to come into effect in the future, right?

[00:09:54] Speaker 00:
Potentially, it would depend on the set of circumstances.

[00:09:56] Speaker 00:
I believe it would depend on what exposure or what harm their claiming occurred from their participation in some future undisclosed testing program.

[00:10:08] Speaker 00:
that I don't think would apply in this case.

[00:10:10] Speaker 00:
And without further context, I can't say now that they would have standing then.

[00:10:14] Speaker 00:
They don't have standing now.

[00:10:16] Speaker 00:
We know that.

[00:10:18] Speaker 00:
Because again, the waiver happened in the past.

[00:10:21] Speaker 00:
No one's asking them to sign that waiver once again.

[00:10:23] Speaker 00:
And so they have no present injury.

[00:10:29] Speaker 00:
in terms of the second side of relief that they seek, which is tell color not to do this.

[00:10:34] Speaker 00:
As the court pointed out, that's not redressable via this suit.

[00:10:38] Speaker 00:
And that's because even if we tell color, pretty please, sugar on top, don't do this, that doesn't mean color is obligated to do what we tell it to do.

[00:10:47] Speaker 00:
And it's important to note here that my friend on the other side points out that maybe Cal Fire and Cal HR have some sort of bargaining contracting power.

[00:10:56] Speaker 00:
The contract was not between Cal Fire, Cal HR, and color.

[00:11:02] Speaker 00:
The contract was with CDPH.

[00:11:04] Speaker 00:
CDPH is not a party to this action.

[00:11:07] Speaker 00:
There's nothing that Cal Fire, Cali Char, and the state officials can do to try to somehow leverage an action from a third party vendor.

[00:11:15] Speaker 00:
There's no state mechanism that allows us to just come in and say, don't do that.

[00:11:21] Speaker 01:
And even if we- So let's just hypothesize that CDPH gets added or is a defendant.

[00:11:27] Speaker 01:
Could they do something?

[00:11:28] Speaker 01:
Or do you think they couldn't do anything to get color to do this either?

[00:11:31] Speaker 00:
I also think they couldn't do anything to have color do this.

[00:11:35] Speaker 00:
And that's because there's no mechanism by which

[00:11:38] Speaker 00:
Under state law, the state can mandate a third party vendor to take any particular action.

[00:11:43] Speaker 00:
And my friend on the other side makes much of, well, they have a contract.

[00:11:48] Speaker 00:
Again, there is no current contract because we've not had a test for COVID-19 since the program ended in September of 2022.

[00:11:56] Speaker 00:
So there is no means by which there's a stick for us to ensure that color can do anything.

[00:12:05] Speaker 00:
And unless the court has any further questions for me, I will conclude and respectfully request that this court affirm the district court's order, dismissing this action without leave to amend, Your Honors.

[00:12:17] Speaker 00:
Thank you.

[00:12:18] Speaker 00:
Thank you.

[00:12:18] Speaker 00:
We have some time for rebuttal.

[00:12:24] Speaker 03:
Thank you, Your Honors.

[00:12:26] Speaker 03:
The color health contracts are still in effect.

[00:12:28] Speaker 03:
The complaint alleges so.

[00:12:30] Speaker 03:
And the defendants have not alleged that they have been terminated.

[00:12:34] Speaker 03:
So these policies are still ongoing.

[00:12:37] Speaker 01:
And do you have any reason to think that any work is being done under them, though?

[00:12:41] Speaker 01:
They're making any money on this contract at this point?

[00:12:44] Speaker 03:
Well, we have not engaged in any discoveries, so we're unsure.

[00:12:47] Speaker 03:
At this stage of litigation, we don't know.

[00:12:52] Speaker 03:
And, you know, the defendants say that the waiver occurred in the past, but the harm is ongoing.

[00:12:59] Speaker 03:
Color Health retains this information.

[00:13:01] Speaker 03:
with subject to the privacy waivers, has carte blanche to use this information.

[00:13:06] Speaker 03:
And precedent from this court shows that retention of private information, especially medical information, and here we're talking about medical status of the employees, their family members, vaccination status, precedent from this court shows that private information being retained

[00:13:23] Speaker 03:
is an ongoing harm and warrants prospective relief.

[00:13:28] Speaker 03:
And you can find that in Norman Bloodsaw versus Lawrence Berkeley Laboratory, Mayfield versus US, both pressed in from this court.

[00:13:38] Speaker 01:
Neither of those involved the third party, though, right?

[00:13:42] Speaker 03:
That is correct, Your Honor.

[00:13:45] Speaker 03:
And the defendants had the power to change the testing program all along.

[00:13:50] Speaker 03:
The complaint alleges that it allowed an employee to test with another vendor.

[00:13:55] Speaker 03:
Didn't even use the same COVID tests.

[00:14:00] Speaker 03:
COVID tests used by Color Health was a nasal swab.

[00:14:02] Speaker 03:
In that case, it was a saliva test through a different vendor.

[00:14:05] Speaker 03:
That shows that defendants could have changed the testing program.

[00:14:09] Speaker 03:
It did not have to go according to the Color Health contracts.

[00:14:13] Speaker 03:
It did not need to use Color Health.

[00:14:14] Speaker 03:
and that's alleged in the complaint.

[00:14:21] Speaker 03:
Thank you, Your Honors.

[00:14:23] Speaker 01:
Thank you both sides for the helpful arguments this case has submitted.