[00:00:03] Speaker 00:
Good morning, Your Honor.

[00:00:04] Speaker 00:
Sydney Bay with my co-counsel Laura Reschka on behalf of the appellants, and I'd like to reserve five minutes for rebuttal.

[00:00:09] Speaker 02:
Just watch the clock.

[00:00:12] Speaker 00:
This case is about my clients wanting to go to a physician's assistant program.

[00:00:16] Speaker 00:
Heritage told my clients that the PA program's accreditation status would have no impact on them.

[00:00:21] Speaker 00:
So my clients enrolled based on these false statements, and then the bottom fell out.

[00:00:25] Speaker 00:
The district court viewed these facts most favorable to Heritage and decided all claims a matter of law.

[00:00:31] Speaker 00:
And that's incorrect for three reasons.

[00:00:33] Speaker 00:
First, the false statements made by Heritage regarding the accreditation status and its impact on my clients were existing facts at the time they were made.

[00:00:41] Speaker 00:
Second, these material facts lay a basis for contract claims.

[00:00:44] Speaker 00:
Whether these statements were incorporated as a part of a contract, whether there was even mutual assent to begin with, or whether Heritage was merely acting in bad faith when dealing with my clients.

[00:00:54] Speaker 04:
What's the contract you claim was breached?

[00:00:59] Speaker 00:
Say that first part again, Your Honor.

[00:01:00] Speaker 04:
What's the contract?

[00:01:02] Speaker 00:
Well, in Washington, the relationship between students and universities are primarily contractual in nature.

[00:01:09] Speaker 00:
But Marquez tells us that we're not rigidly looking at contract line.

[00:01:13] Speaker 00:
So there's not four corners of a contract.

[00:01:15] Speaker 00:
We look at university publications, a handbook, a brochure, a website.

[00:01:21] Speaker 00:
And here, that's what my clients did.

[00:01:22] Speaker 00:
They looked at the website.

[00:01:23] Speaker 00:
They looked at the handbook.

[00:01:25] Speaker 00:
And all of those publications told them to ask questions.

[00:01:29] Speaker 00:
And that is what they did.

[00:01:31] Speaker 00:
They received answers, which were false statements.

[00:01:34] Speaker 00:
And then they paid their tuition, enrolled in the program, and they had to sign the acknowledgement of handbook form, which they have to affirm all of my questions and concerns regarding the student handbook have been asked and answered.

[00:01:46] Speaker 00:
And I understand the policies put forth in that handbook, which were governed by the answers they were given.

[00:01:51] Speaker 04:
So what's the breach?

[00:01:51] Speaker 04:
What specifically is the breach of contract claim?

[00:01:55] Speaker 04:
What contract was breached?

[00:01:57] Speaker 00:
Well, the contract between the university and my clients and in the handbook, they are telling them, hey, we have this accreditation issue.

[00:02:09] Speaker 00:
And so they encourage them to ask questions.

[00:02:11] Speaker 00:
So my clients did.

[00:02:13] Speaker 00:
And when they asked those questions, they received false answers.

[00:02:15] Speaker 00:
And so those statements.

[00:02:17] Speaker 00:
become a part of that contract when they are providing those false answers, when they have to affirm that they understand the policies, they understand the risks they are taking.

[00:02:26] Speaker 00:
And I think a good analogy here.

[00:02:28] Speaker 04:
But what was the contract term that Heritage breached?

[00:02:36] Speaker 04:
Was it, for example, something in the bulletin?

[00:02:39] Speaker 04:
Was it something on the website?

[00:02:41] Speaker 04:
Or was it some other communication from Dean?

[00:02:47] Speaker 04:
I think her name was.

[00:02:48] Speaker 00:
I think it's a combination of those.

[00:02:50] Speaker 04:
Soon was her name, sir.

[00:02:52] Speaker 00:
I think it's a combination of those.

[00:02:55] Speaker 00:
The statements in the handbook, as well as on the brochures, talk about and detail the probationary accreditation status.

[00:03:03] Speaker 00:
Specifically in the brochure, Dr. Dale talks about how it's merely a data delivery issue, which is not true.

[00:03:11] Speaker 00:
And there's evidence not only in heritage zone materials, but also the executive director of the crediting body says that's not the only issue of their

[00:03:20] Speaker 00:
probationary accreditation.

[00:03:22] Speaker 04:
So I think that's a piece of it.

[00:03:23] Speaker 04:
I think those issues which you raise sound more in the area of false and negligent misrepresentations.

[00:03:33] Speaker 04:
But if you would help me understand, give me a little bit more help in understanding the contract issue.

[00:03:43] Speaker 04:
Heritage contractually obligated itself to do what?

[00:03:54] Speaker 00:
Heritage contractually obligated itself to create, well, create a contract with students.

[00:04:00] Speaker 00:
And so saying, hey, creating a contract with students, hey, you come to our program.

[00:04:05] Speaker 00:
We're going to be offering this program.

[00:04:07] Speaker 00:
In return, you pay your tuition.

[00:04:09] Speaker 00:
You pay your tuition.

[00:04:12] Speaker 00:
You become part of this program.

[00:04:14] Speaker 00:
And so for them, you get my client's tuition money in return for them acknowledging they read the handbook and them coming to the program and paying their own tuition.

[00:04:24] Speaker 02:
But the question is, what was the specific?

[00:04:31] Speaker 02:
The breach of contract claim presupposes that Heritage promised contractually to do something that it then did not do.

[00:04:39] Speaker 02:
So what is the something that they didn't do?

[00:04:41] Speaker 00:
Well, they promised that the accreditation status, this accreditation issue they were dealing with, would have no impact on my clients, which was not true.

[00:04:49] Speaker 00:
And so saying, hey, come to my program, whatever we've got going on with the accreditation status, it's resolved.

[00:04:54] Speaker 00:
It's not an issue.

[00:04:55] Speaker 00:
That in and of itself is a breach.

[00:04:58] Speaker 03:
Well, again, that's the breach.

[00:05:00] Speaker 03:
I think, I don't want to put words in your mouth, but what I think Heritage promised to do was, if you enroll,

[00:05:08] Speaker 03:
If you pay your tuition and if you pass the examinations, we will give you a degree that will be an accredited degree, which will allow you then to take your boards.

[00:05:18] Speaker 03:
That's what they promised to do.

[00:05:20] Speaker 00:
Yeah, they provided a program that you would get the program, correct.

[00:05:24] Speaker 03:
And that would be an accredited program.

[00:05:27] Speaker 00:
Well, and as it turns out... Yeah, they said that that would be no impact, so yes.

[00:05:31] Speaker 03:
That's the answer, I think, in terms of what they promised to do.

[00:05:34] Speaker 00:
Correct.

[00:05:35] Speaker 03:
And that was the question that was asked of you.

[00:05:36] Speaker 03:
Like, what did they promise to do?

[00:05:38] Speaker 03:
Not what did they breach, but what did they promise to do?

[00:05:40] Speaker 00:
Apology is misunderstood.

[00:05:42] Speaker 03:
And is that what they promised to do?

[00:05:45] Speaker 03:
Did I get that right?

[00:05:46] Speaker 00:
Correct.

[00:05:46] Speaker 00:
Correct.

[00:05:48] Speaker 00:
And I think to your point regarding the misrepresentation piece, Heritage, the statements that were made were one of existing fact.

[00:05:55] Speaker 00:
And I think Washington provides

[00:05:57] Speaker 00:
sorry, really good examples of existing facts versus promise of future performance.

[00:06:04] Speaker 00:
Kerner v. Ross, the statement was there's one easement, when in fact there were three.

[00:06:10] Speaker 00:
Meanwhile, when you have an example like Glacier, the drivers will respond to dispatch.

[00:06:16] Speaker 00:
It requires the drivers to do something.

[00:06:20] Speaker 00:
By contrast here, the PA program was explicit.

[00:06:23] Speaker 00:
And they say, quote, the probationary status will not have an impact on our students.

[00:06:28] Speaker 00:
They've already obtained a data analyst.

[00:06:30] Speaker 00:
They've explained to me extensively what probationary means.

[00:06:32] Speaker 00:
They are confident there are not going to be any issues.

[00:06:34] Speaker 00:
They have a solid program.

[00:06:36] Speaker 00:
The issues that were already resolved.

[00:06:38] Speaker 00:
Those statements were made at the time that my clients were asking these questions, determining whether they were going to enroll in the program were not true at the time they were made.

[00:06:47] Speaker 02:
And so you have both a negligent misrepresentation claim and a fraudulent misrepresentation claim.

[00:06:52] Speaker 02:
Correct.

[00:06:53] Speaker 02:
So for the fraudulent misrepresentation claim, you have to show that the people who made the statements knew that they were false at the time they made them.

[00:07:03] Speaker 02:
And what's your best evidence of that, that they were knowingly false statements?

[00:07:10] Speaker 00:
Yeah, I think Dr. Dale, who was primarily the person who made a lot of these statements to these clients, was the program director.

[00:07:16] Speaker 00:
She was the person who interacted with the accreditation body.

[00:07:19] Speaker 00:
She created these policies.

[00:07:20] Speaker 00:
She was aware from September 2018 the issues that were involved in their accreditation issues, some involving data analysts, some involving

[00:07:28] Speaker 00:
educational delivery, and in an email in 2020, she acknowledges that their staffing is not sufficient.

[00:07:35] Speaker 00:
She acknowledges that there's ongoing issues.

[00:07:36] Speaker 00:
So these statements were made a year and some more beforehand where she's saying, there's no issue.

[00:07:42] Speaker 00:
The issue has been resolved.

[00:07:44] Speaker 00:
But she knew what those issues were.

[00:07:46] Speaker 00:
She knew that there was still a staffing issue at the time that those statements were made.

[00:07:50] Speaker 00:
And then a year later in September, this email, which is located 2ER209,

[00:07:55] Speaker 00:
she says that they do not have sufficient staffing.

[00:07:59] Speaker 00:
So for a person who's aware of what the accreditation body is asking them to do, makes these statements and then a year later is acknowledging, no, we don't have sufficient, this is still an ongoing concern.

[00:08:11] Speaker 00:
I think that piece takes it from a negligent knowing or should have known to you knew, you're the head of this program, you understand it's failing, but you're still trying to entice students to come.

[00:08:24] Speaker 04:
But isn't it correct that all of the students who are plaintiffs in this case knew that when they enrolled at Heritage, there was a substantial question surrounding its accreditation status?

[00:08:45] Speaker 00:
They knew that they're the university?

[00:08:47] Speaker 00:
Yes.

[00:08:48] Speaker 04:
Yes, the university.

[00:08:50] Speaker 04:
The school was on probation.

[00:08:51] Speaker 00:
They knew of that accreditation status, and we are not disputing that they didn't know about the accreditation, the probationary accreditation status.

[00:08:59] Speaker 00:
What we're disputing is that they asked about it.

[00:09:02] Speaker 00:
They said there was no issue that that accreditation status would have no impact on these students, and that was not true.

[00:09:15] Speaker 00:
And so I think turning to the Washington Consumer Protection Act, the court also wrongly dismissed the CPA claim on one element, the public interest element.

[00:09:25] Speaker 00:
And they're still conflicting evidence as to each of these factors.

[00:09:28] Speaker 00:
Heritage made these false statements in the course of their business.

[00:09:31] Speaker 00:
They're a large institution.

[00:09:32] Speaker 00:
They publish information on their website, encouraging the consuming public to ask questions, and like my clients did.

[00:09:41] Speaker 00:
the same answers they provided during those interviews.

[00:09:44] Speaker 00:
And I think there's an open question here about whether they induced our clients.

[00:09:48] Speaker 00:
And Eastlake is a really good analogous case.

[00:09:52] Speaker 00:
In Eastlake you have a contractor submitting a bid representing to somebody that he's going to perform work in a certain amount of time.

[00:09:59] Speaker 00:
for a certain cost.

[00:10:01] Speaker 00:
Those representations serve to induce those potential purchasers in a way that an advertisement would.

[00:10:07] Speaker 00:
Here, that's exactly what Heritage did.

[00:10:08] Speaker 00:
They made representations about the impact of the accreditation status to induce potential applicants to apply and come to their program.

[00:10:16] Speaker 00:
They made these statements knowing the students would rely on them, which they did.

[00:10:20] Speaker 00:
And that harm not only impacted my clients, but that also impacted other members of their cohort six and the individuals who were in those group interviews as detailed in those declarations that were provided to the court.

[00:10:34] Speaker 03:
Now, the harm, I think, took place only with respect to this, I think they call it cohort, the sixth cohort.

[00:10:42] Speaker 03:
Do you know how many students there were in that cohort?

[00:10:44] Speaker 00:
There were at least 30.

[00:10:45] Speaker 03:
At least 30?

[00:10:47] Speaker 03:
Correct.

[00:10:48] Speaker 03:
And as I understand the Washington law on this point, it has to be more than just a breach of contract or some sort of unfair response between the defendant and it can't be a single transaction or just one payer.

[00:11:05] Speaker 03:
So we've got four clients here.

[00:11:08] Speaker 03:
We've also got declarations in the record from five people.

[00:11:12] Speaker 03:
Of six others, correct.

[00:11:13] Speaker 03:
Six others who are not clients.

[00:11:16] Speaker 03:
Is that enough to take you out of the paradigm of, well, listen, the Consumer Protection Act doesn't apply just to a private dispute.

[00:11:23] Speaker 03:
Does this become a big enough dispute that we've got not just the plaintiffs here, but we've got those additional people?

[00:11:31] Speaker 00:
Yes, I do.

[00:11:31] Speaker 00:
And I think Eastlake's another good example.

[00:11:33] Speaker 00:
In that case, the single defendant had five other declarants who talked about the same kind of deceptive harm.

[00:11:40] Speaker 00:
Here you have four clients along with six other declarants who are saying, hey, I was also induced into this kind of harm.

[00:11:46] Speaker 03:
Now, the damage that each of them... And those other six are not just they responded to the handbook or the website.

[00:11:53] Speaker 03:
They say, I was reassured pretty much the same way your four clients say, I was privately reassured in answer to my questions.

[00:12:00] Speaker 00:
Correct.

[00:12:01] Speaker 04:
I don't know if the record reflects it.

[00:12:05] Speaker 04:
Is Heritage still open?

[00:12:06] Speaker 04:
Is it still operating?

[00:12:08] Speaker 00:
Heritage University, yes.

[00:12:09] Speaker 00:
The physician assistant- The PA program.

[00:12:11] Speaker 00:
The physician assistant program, no.

[00:12:13] Speaker 00:
It closed May, I don't have the exact date to head, but May 2021 at the end of cohort six.

[00:12:19] Speaker 00:
Correct.

[00:12:20] Speaker 00:
But to that point, not only do we have other individuals who have been impacted to the CPA claim,

[00:12:27] Speaker 00:
There is also the separate potential for others to be harmed in the future because heritage decision to voluntarily withdraw was made because they plan to reopen a physician assistant program.

[00:12:37] Speaker 00:
And they say that in their follow-up report when they make the decision to voluntary withdraw.

[00:12:42] Speaker 00:
And additionally, when they send Dr. Dale, the program director, her resignation letter, they tell her, we will be opening a new PA program, and we encourage you to apply.

[00:12:52] Speaker 00:
The same person that they are saying, hey,

[00:12:55] Speaker 00:
failed this program, failed to lead this program, and is essentially the result of the failure, they are asking her to come back and be a part of this program.

[00:13:03] Speaker 00:
And so not only do you have the potential impact or future harm based on evidence of multiple individuals being harmed, aside from my clients, but they're also saying, we're going to open a PA program, and we're going to let the same people back in the room to take these actions again.

[00:13:21] Speaker 02:
You wanted to reserve some time, and you're down under two minutes.

[00:13:27] Speaker 00:
And I will do that.

[00:13:28] Speaker 00:
Thank you.

[00:13:40] Speaker 01:
Good morning.

[00:13:40] Speaker 01:
You may please the court.

[00:13:41] Speaker 01:
My name is Paul Trisha.

[00:13:42] Speaker 01:
I represent Heritage University.

[00:13:46] Speaker 01:
Question before the court is whether the record contains evidence creating a genuine issue of material fact in any of the five claims the appellants have brought.

[00:13:55] Speaker 01:
I'm going to address those in three broad categories.

[00:13:58] Speaker 01:
One, Consumer Protection Act.

[00:14:00] Speaker 01:
Two, breach of contract, which is related to the claim of

[00:14:04] Speaker 01:
breach of the coven of good faith and fair dealing, and the two equitable claims, unjust enrichment and promissory estoppel.

[00:14:10] Speaker 01:
And then three, fraud and negligent misrepresentation.

[00:14:13] Speaker 01:
I'm not addressing the claims that were not appealed.

[00:14:15] Speaker 01:
There are five of them.

[00:14:17] Speaker 01:
The court should affirm on those also.

[00:14:20] Speaker 01:
So regarding the facts briefly, my colleague, I, with due respect, over represents the record.

[00:14:26] Speaker 01:
Between 2014 and May 31, 2021, Heritage University successfully graduated

[00:14:34] Speaker 01:
PA program cohorts that earn their MSPA degrees.

[00:14:39] Speaker 01:
So when these students are not an issue, they are not the students.

[00:14:44] Speaker 01:
However, to that point, the students in this cohort when they enrolled

[00:14:49] Speaker 01:
knew that it was probationary accreditation, because that was the circumstance for the entire preceding six years.

[00:14:56] Speaker 01:
It started as provisional accreditation, became probationary, and then was detailed on the website as probationary and explained.

[00:15:06] Speaker 01:
It was in the student handbook as probationary and explained.

[00:15:09] Speaker 01:
And it was in an acknowledgment that the students had to read and sign

[00:15:14] Speaker 01:
explained.

[00:15:15] Speaker 01:
The ARCPA also detailed what probationary accreditation meant.

[00:15:18] Speaker 03:
But what was not explained was what's the consequence if we lose our accreditation and the handbook says if you have further questions please contact people in the administration

[00:15:31] Speaker 03:
and they give away contact.

[00:15:33] Speaker 03:
And then when these people in the administration are contacted, we have evidence from the plaintiffs that they were told that loss of accreditation will have no adverse impact upon you and your participation in the program.

[00:15:48] Speaker 03:
To me, that's the problem.

[00:15:50] Speaker 01:
Yeah.

[00:15:51] Speaker 01:
So addressing that, Your Honor, and I think Your Honor asked the question about the number of individuals involved here.

[00:15:56] Speaker 01:
So there are eight students that have declarations that make up the record, two of whom are appellants.

[00:16:05] Speaker 01:
And those eight students say something to the effect that, well, we felt deceived because the university told us that probationary accreditation would likely continue.

[00:16:16] Speaker 01:
And if not, the university could teach us out.

[00:16:19] Speaker 01:
That is a fact.

[00:16:19] Speaker 01:
And that's on the ArcPA's website.

[00:16:21] Speaker 01:
It says, the standards define teaching out as allowing students already in the program to complete their education or assisting them in enrolling in an ArcPA accredited program in which they can continue their education.

[00:16:34] Speaker 01:
So to this point, this was published.

[00:16:37] Speaker 01:
It was known to the students.

[00:16:39] Speaker 01:
And in fact, when the ArcPA withdrew accreditation,

[00:16:41] Speaker 01:
What did Heritage do?

[00:16:43] Speaker 01:
They closed the program.

[00:16:44] Speaker 01:
There's no risk of any future problem.

[00:16:47] Speaker 01:
So getting to the CPA claim, we have no public interest impact as a matter of law based on the evidence in this record.

[00:16:55] Speaker 03:
How can you say that when we have four plaintiffs and we've got, and this may be enough, not putting it to one side, the website, and so on.

[00:17:04] Speaker 03:
We've got six declarations from people who are not plaintiffs who say, hey, we've got the same misrepresentation as the plaintiffs.

[00:17:11] Speaker 01:
It wasn't a misrepresentation, it was, you will, we have a probationary.

[00:17:15] Speaker 03:
Let's say, concede for the moment, but not, but just for this question, concede that it was a misrepresentation.

[00:17:24] Speaker 03:
Okay.

[00:17:24] Speaker 03:
Is that enough to make it a public impact?

[00:17:27] Speaker 01:
No, it's in a private contract, in a private conversation.

[00:17:31] Speaker 01:
It's not publicly made.

[00:17:33] Speaker 01:
And literally, two appellants in this record make that allegation.

[00:17:36] Speaker 01:
The rest of them are students who are not appellants.

[00:17:38] Speaker 03:
But that's my very question.

[00:17:40] Speaker 03:
That is to say, we've got six people who are not plaintiffs who say the same thing was told to me.

[00:17:44] Speaker 03:
And assume, for purposes of my question, that that's incorrect information.

[00:17:49] Speaker 03:
So why is that not enough to be public impact?

[00:17:51] Speaker 03:
It's part of a private contract.

[00:17:53] Speaker 03:
But it's a lot of them now.

[00:17:54] Speaker 01:
It's not just one.

[00:17:56] Speaker 01:
Let's call it eight.

[00:17:57] Speaker 01:
It's a private contract with two of them and the private conversation with eight of them.

[00:18:02] Speaker 01:
And that's not enough.

[00:18:04] Speaker 01:
That's not.

[00:18:04] Speaker 01:
Not under the case law.

[00:18:05] Speaker 03:
The case law that says that's not enough?

[00:18:07] Speaker 01:
Yes.

[00:18:07] Speaker 01:
Hangman Ridge, Michael versus Mascaro Lacey.

[00:18:12] Speaker 01:
That's the public interest piece.

[00:18:14] Speaker 01:
But here, there was also nothing deceptive.

[00:18:16] Speaker 01:
I mean, the university published this on their website.

[00:18:19] Speaker 01:
It was on their website.

[00:18:20] Speaker 01:
It was in the student handbook.

[00:18:21] Speaker 01:
And it was signed and acknowledged by the students.

[00:18:24] Speaker 01:
And the boots on the ground fact on the Consumer Protection Act claim, Your Honor, is that the appellants each researched

[00:18:30] Speaker 01:
probationary accreditation and searched for and were aware of available physician's assistance programs around the country.

[00:18:38] Speaker 01:
So they decided to come to Heritage.

[00:18:41] Speaker 01:
I want to move based on time to the breach of contract claim.

[00:18:46] Speaker 04:
Before you do that, would

[00:18:49] Speaker 04:
How are we to lay the fact that the context in which this dispute has risen involved a school, a medical school, who is trying to train people to fill gaps in medical coverage, to do things that

[00:19:13] Speaker 04:
licensed physicians would normally do, but other folks could.

[00:19:18] Speaker 04:
Isn't that a substantial public interest component?

[00:19:23] Speaker 01:
Having qualified licensed practitioners, absolutely yes.

[00:19:29] Speaker 01:
Does it change the analysis under the Consumer Protection Act claim?

[00:19:33] Speaker 01:
No.

[00:19:35] Speaker 04:
The school is intending, the school is in, the very purpose of the school is to provide, and it seems to me, a quite extraordinary, extraordinarily important public purpose.

[00:19:52] Speaker 01:
Indeed, and they graduated successfully five cohorts of accredited physician's assistants.

[00:19:58] Speaker 01:
And in the final cohort, number six,

[00:20:01] Speaker 01:
which they got their didactic curriculum for that year and paid for it.

[00:20:05] Speaker 01:
And that's all they got, and that's all they paid for.

[00:20:06] Speaker 01:
At the end of that, the ARCPA said, nope, you cannot supervise them in their second or clinical year.

[00:20:14] Speaker 01:
So they had to go elsewhere, which the university, and another fact in the record, which the university helped them to do to place them.

[00:20:22] Speaker 04:
You're telling me that the fact of the successful graduation of the previous

[00:20:30] Speaker 04:
five cohorts is indicative of your client fulfilling an important public purpose?

[00:20:40] Speaker 01:
No, I don't know that.

[00:20:41] Speaker 01:
So it's not a medical school or a physician assistant school.

[00:20:44] Speaker 01:
It was a physician assistant program in an existing university, which is important.

[00:20:50] Speaker 01:
And it is important that they are accredited and know what they're doing.

[00:20:54] Speaker 01:
That's why they have an accrediting agency.

[00:20:56] Speaker 01:
The accrediting agency determined that it was not going to continue accreditation.

[00:21:01] Speaker 01:
At that point, the university sought to invoke the agreement with that accrediting agency to allow a teach-out.

[00:21:08] Speaker 04:
Does the program fulfill an important, before we ran into this difficulty, did the program fulfill an important public purpose?

[00:21:18] Speaker 01:
Certainly.

[00:21:20] Speaker 01:
Certainly.

[00:21:20] Speaker 01:
It does fill a gap, as Your Honor pointed out, in medical provision.

[00:21:25] Speaker 01:
So, and along.

[00:21:28] Speaker 02:
In Hangman Ridge, the court said that a breach of a private contract that only affects the parties doesn't affect the public interest under the CPA.

[00:21:36] Speaker 02:
But then they went on to say that the likelihood that additional people have been or will be injured in the same fashion takes it out of the private contract paradigm.

[00:21:49] Speaker 02:
causes it to be affected by the public interest.

[00:21:51] Speaker 02:
So I guess, going back to the question Judge Fletcher asked you, why doesn't the fact that there are a bunch of other people in the program who say, yeah, the same thing happened to me, why isn't that enough under Hangman Ridge?

[00:22:04] Speaker 01:
because there's no future impact whatsoever.

[00:22:06] Speaker 01:
The program, when accreditation was withdrawn, the university immediately published that and said, we no longer have probationary accreditation.

[00:22:14] Speaker 01:
We cannot teach you out, and we're going to place you now.

[00:22:17] Speaker 01:
And that's for this cohort, which they did.

[00:22:19] Speaker 01:
That affects these students.

[00:22:24] Speaker 01:
It has no possible impact on the public going forward.

[00:22:30] Speaker 01:
That is a finite private contract.

[00:22:33] Speaker 01:
It is a finite private conversation that these students allege occurred.

[00:22:38] Speaker 01:
That's the limitation of it.

[00:22:40] Speaker 01:
It's not something that is going to affect the public.

[00:22:45] Speaker 03:
But I don't think the public effect part of that test says that if you've ceased the activity, you're there after you are immune from a suit for prior activities.

[00:22:59] Speaker 03:
I don't think that's what the Washington Act says at all.

[00:23:02] Speaker 03:
But I think that's your argument.

[00:23:04] Speaker 03:
You're saying, well, whatever it is that we did that was bad, we're not doing it anymore, and therefore you can't bring suit for what happened to you in the past.

[00:23:12] Speaker 03:
I don't think that's what the act means, and I don't think that's what the provision means.

[00:23:15] Speaker 01:
Yeah, what I'm actually saying, Your Honor, respectfully, is that

[00:23:19] Speaker 01:
two of the elements at least for that cause of action have not been met, and that is an unfair or deceptive act or practice.

[00:23:27] Speaker 01:
It was published, known, talked about, that it was probationary, that the ARCPA unilaterally controlled it, that the ARCPA could unilaterally pull the plug, that we could teach you out or we could place you if that occurred.

[00:23:39] Speaker 01:
That's in the ARCPA's standards.

[00:23:41] Speaker 01:
But I'm actually more interested in the public interest impact requirement.

[00:23:45] Speaker 01:
The public interest impact, which the district court pointed out, is that this is a private contract dispute.

[00:23:52] Speaker 01:
And the conversation where these eight students, only two of whom are appellants, say, well, they told us that we didn't need to worry about it, that they could teach us out.

[00:24:01] Speaker 01:
That's not something that's public.

[00:24:03] Speaker 01:
It's not on the website that they have some assurances like this.

[00:24:08] Speaker 03:
But public doesn't mean revealed to the public.

[00:24:11] Speaker 03:
It's public impact.

[00:24:13] Speaker 03:
And I understood your argument that I think you're walking away from is the public impact requirement.

[00:24:21] Speaker 03:
We don't need to worry about it because they're not doing it anymore.

[00:24:24] Speaker 03:
I don't think the fact that they're not doing it anymore protects your client.

[00:24:27] Speaker 01:
OK.

[00:24:28] Speaker 01:
The public interest impact focuses, and I think we've addressed this already, on whether or not it was a public contract or a private contract.

[00:24:38] Speaker 01:
This is a private contract.

[00:24:40] Speaker 03:
But if you have a lot of private contracts that are the same, or bad behavior with respect to a lot of different individuals, then I think the requirement's satisfied.

[00:24:51] Speaker 03:
Isn't that right?

[00:24:51] Speaker 01:
No, when that contract term of we have probationary accreditation that may be taken away from us, when that contract term exists, that is a contract term.

[00:25:01] Speaker 01:
That is a known agreed possibility.

[00:25:04] Speaker 03:
No, I'm not asking you to concede.

[00:25:08] Speaker 03:
But for purposes of the question, I'm asking you to concede that there was an incorrect and deceptive answer.

[00:25:15] Speaker 03:
And that incorrect and deceptive answer was given to at least two of the plaintiffs in this case.

[00:25:22] Speaker 03:
And it was given to the six people from whom we have declarations.

[00:25:26] Speaker 03:
And you're saying that it doesn't matter that there were eight of these things.

[00:25:31] Speaker 03:
It's still not effect on the public.

[00:25:33] Speaker 03:
That's what you're saying.

[00:25:34] Speaker 01:
What I'm saying, Your Honor, is there's no incorrect or deceptive answer.

[00:25:37] Speaker 03:
No, no, I'm asking you to concede for the purpose of my question.

[00:25:40] Speaker 03:
I don't want a real concession.

[00:25:41] Speaker 03:
I just want to concede for the purpose of the question that it was incorrect and deceptive.

[00:25:46] Speaker 03:
And now I'm saying it was given to at least two of the client of the plaintiffs.

[00:25:51] Speaker 03:
Yes.

[00:25:51] Speaker 03:
And we know it was given, because we have the affidavits or declarations, to six others.

[00:25:57] Speaker 03:
And you're saying it's still not enough to be the public.

[00:26:00] Speaker 03:
That's right.

[00:26:01] Speaker ?:
Yes.

[00:26:01] Speaker 01:
Yes.

[00:26:02] Speaker 03:
How many do we need to be the public?

[00:26:04] Speaker 03:
Done to 100?

[00:26:04] Speaker 01:
It's not about the numbers.

[00:26:06] Speaker 01:
It's how it's published to the public.

[00:26:08] Speaker 01:
It's what the public is able to see.

[00:26:09] Speaker 03:
Oh, so you're saying they can do it to 1,000 people, but so long as it's private and individual contracts, there's still no impact on the public with respect to that requirement?

[00:26:19] Speaker 01:
Well, that's a difficult question for me to answer in a vacuum, in a factually absent vacuum.

[00:26:24] Speaker 03:
I'm trying to figure out your idea of the law.

[00:26:26] Speaker 03:
You're telling me it doesn't matter how many because each one of these is a private contract.

[00:26:31] Speaker 01:
What I'm talking about is this record.

[00:26:33] Speaker 01:
In this record, in this context, it was a private contract.

[00:26:36] Speaker 01:
It was a private conversation with what appears to be in this record.

[00:26:38] Speaker 03:
And there were at least eight of them?

[00:26:40] Speaker 03:
Eight.

[00:26:41] Speaker 03:
Yes, sir.

[00:26:42] Speaker 03:
And you're saying the fact that it was because it was private, it doesn't count, or because there are not enough of them?

[00:26:48] Speaker 01:
It's a private contract, so it takes it out of the realm of a public disclosure of a position that might mislead the public.

[00:26:55] Speaker 01:
There was nothing misleading.

[00:26:56] Speaker 01:
So you're saying it doesn't matter how many?

[00:26:59] Speaker 01:
If there's nothing misleading, it doesn't matter how many.

[00:27:02] Speaker 03:
No, I'm sorry.

[00:27:03] Speaker 03:
You can't back away from that for purposes of the question.

[00:27:05] Speaker 03:
For purposes of the question, it was misleading.

[00:27:08] Speaker 03:
And it happened to at least eight.

[00:27:11] Speaker 03:
Now, are you saying that the number doesn't matter because these were all private?

[00:27:16] Speaker 01:
I think that's what you were trying to tell me.

[00:27:19] Speaker 01:
I'm not sure how to answer the question based on the hypothetical you've given me, which does not exist in this record.

[00:27:25] Speaker 01:
But that's the challenge I have, Your Honor.

[00:27:30] Speaker 03:
I'm sorry.

[00:27:30] Speaker 03:
That's not very helpful to me because I'm not asking you to concede for all purposes that it was deceptive.

[00:27:36] Speaker 03:
I'm saying if it were deceptive, and now I'm trying to get to this requirement of public effect on the public,

[00:27:45] Speaker 03:
You're saying, but each one of these, it was deceptive to an individual.

[00:27:49] Speaker 03:
And the fact that it was two or the fact that it was eight doesn't matter.

[00:27:52] Speaker 03:
The fact that it was 20 doesn't matter.

[00:27:54] Speaker 03:
The fact that it was 100 doesn't matter.

[00:27:55] Speaker 03:
Is that what you're saying?

[00:27:56] Speaker 03:
The numbers don't matter because each one of these was private?

[00:27:59] Speaker 01:
That is a question I would love to answer for your honor.

[00:28:01] Speaker 01:
And the way I would do that is to retreat to the case law.

[00:28:04] Speaker 01:
And I can't do that on that factual scenario right now.

[00:28:07] Speaker 01:
That would be subject to what the cases speak to.

[00:28:10] Speaker 01:
And Washington is very clear on the Consumer Protection Act.

[00:28:13] Speaker 01:
what is covered, what is not.

[00:28:15] Speaker 01:
That's all I can tell you, Your Honor.

[00:28:16] Speaker 01:
I'm sorry.

[00:28:18] Speaker 01:
I just want to point out a couple of things then about these equitable claims.

[00:28:24] Speaker 01:
Those are tied in with the breach contract claim.

[00:28:27] Speaker 01:
Those don't exist.

[00:28:27] Speaker 01:
Unjust enrichment, promissory estoppel.

[00:28:30] Speaker 01:
But as a matter of fact, there's no unjust enrichment here.

[00:28:33] Speaker 01:
These students were given money.

[00:28:34] Speaker 01:
Ms.

[00:28:34] Speaker 01:
Contreras was paid back her tuition.

[00:28:37] Speaker 01:
And there can't be a promissory estoppel claim when there's a contract claim.

[00:28:41] Speaker 01:
Regarding the fraud and negligent claims, we need to have something that exists, in fact, now as the misrepresentation of a material fact.

[00:28:50] Speaker 01:
And that didn't occur.

[00:28:50] Speaker 01:
The conversation was about what will happen if accreditation is lost.

[00:28:55] Speaker 02:
Thank you.

[00:28:56] Speaker 02:
Can I ask you just one thing?

[00:28:58] Speaker 02:
I was curious about the program was located in Toppenish?

[00:29:02] Speaker 01:
It is.

[00:29:03] Speaker 02:
It was.

[00:29:04] Speaker 02:
It was.

[00:29:04] Speaker 02:
Was that within the boundaries of the Yakama reservation, to your knowledge?

[00:29:09] Speaker 01:
It may have been.

[00:29:10] Speaker 01:
I can't say.

[00:29:11] Speaker 02:
Does the university have any affiliation with the Yakama tribe?

[00:29:16] Speaker 01:
I can't say that either.

[00:29:18] Speaker 02:
Obviously, you haven't deserted immunity here, and you're not disputing that this is subject to Washington tort law.

[00:29:26] Speaker 02:
Yeah.

[00:29:27] Speaker 02:
Thank you.

[00:29:36] Speaker 00:
A few things, Your Honor.

[00:29:37] Speaker 00:
I'd like to note there are four appellants in this case.

[00:29:39] Speaker 00:
And then there were six additional declarations from some of their classmates.

[00:29:44] Speaker 00:
A few things that I want to point out with my remaining time is that for the public interest element, we're talking about if additional plaintiffs have been or will be injured in the exact same fashion.

[00:29:54] Speaker 00:
And there are other additional individuals that we already know have been injured outside of my clients.

[00:29:58] Speaker 00:
It's not and individuals in the future.

[00:30:01] Speaker 00:
It's or in the future.

[00:30:02] Speaker 00:
I think for the portion of that public interest element, that has been satisfied.

[00:30:06] Speaker 00:
Four of our own clients, along with six additional other witnesses.

[00:30:10] Speaker 00:
As far as talking about each of these as an individual contract, I think that's why Eastlake is so important.

[00:30:17] Speaker 00:
We're talking about individual bids provided by a contractor, and the court reversed in that case because not only did you have the defendants

[00:30:24] Speaker 00:
statements or Conversation statements record regarding the contractor But also these five other witnesses who talked about their individual bids and we're talking about a practice of misrepresentation here We're starting way back in 2018 when mr. Olsen who was looking for public?

[00:30:43] Speaker 00:
For physician assistant programs emails the email web on the website and gets a response from miss Sanchez saying there is no impact that

[00:30:53] Speaker 00:
There is no issue.

[00:30:54] Speaker 00:
We go to 2019 during these group interviews where there's multiple potential applicants asking these questions and Dr. Dale and other individuals providing these answers.

[00:31:04] Speaker 00:
And so this isn't an isolated communication, I think, either by law or either by fact at this point.

[00:31:10] Speaker 00:
I think what's important here, though, is that proving each of these claims is not in front of this court.

[00:31:14] Speaker 00:
We're asking whether there is a material fact in dispute, and there are as to each of the claims brought forth.

[00:31:20] Speaker 00:
Harjit's actions not only caused my client's harm, but by foreclosing on all of these claims, the court has stripped them of the opportunity to have these facts presented to a jury.

[00:31:32] Speaker 00:
And so we are asking this court today to reverse and remand all claims back to the trial court.

[00:31:38] Speaker 02:
Thank you.

[00:31:39] Speaker 02:
Thank you both.

[00:31:40] Speaker 04:
Interesting case.

[00:31:42] Speaker 02:
Thanks both, counsel, for their arguments.

[00:31:43] Speaker 02:
And the case is submitted, and the court is adjourned.