think you have to have competitive standing with each of the defendants or can you have competitive standing with one of the defendants and it carries over to the others we need to be competing or have competitive competitive injury as a result of the activities of the defendants collectively the lower court applied a test that has not been adopted by any court injury suffered by the plaintiff and whether it is part of competition and argument as you see from our brief is that the defendants collectively were selling a product they each had different functions admittedly but under the case law that's a distinction without a difference there simply is no dispute that the products in question the plaintiffs product the slander the issue as were these products competing and with one very glaring exception and i want to get to they obviously were they were both products that were electrical muscle stimulating  they were both being sold in the united states they were both being sold to consumers the distinction as one of the two products was legal and one of them was patently illegal but that doesn't that the defendant's illegal activity their gross claims and ruin the market there were all sorts of news articles and this was in the record there were all sorts of news articles or news stories about how these wild claims have been made by these essentially saying one l that isn't really what my theory is not that there's a yes he's winning the competition because if it is that you're both losing well they they didn't lose because they got their products out on the market and were selling them before the media before the federal trade commission was able to do something to stop it along with as we know it the fact that we eventually got in our litigation agreement from them that they were not going to sell the product anymore but in the meantime they had made millions and millions of dollars because they did what our core didn't do they put this product out on the market with claims that they had no right to make without going through the required legal process as opposed to what our point did which is we went through the f d a clearance product process we made the claims that we were allowed to make by the f d a and by the time the f cleared that product the damage had largely been done so your theory is not that any of the defendants disparaged your product as a product or sought to drive you from the market your contention is that they were such crooks and such fools the date and effects soured the market for you this is a user i'm not sure i would agree with the full part your honor they did it very well  prohibited them from entering this market and selling the product with the claims that they were making so your theory then is that any a person who sells a demonstrably defective vehicle is created guilt by association say with a single the no i don't think we wouldn't take the theory that that far or our theory is is that in this case the defendants made representations and they're none of the defendants ever made any public comments about our client or its product in order to gain sales where they were doing was making affirmative misrepresentations about their own products and what i think allowed the plaintiffs to go forward with the theory that the products that were being sold by the defendant were being sold illegally because that's different and that's different because  it's both i mean you don't necessarily need to get at the first point because our argument is certainly that he never should have had to look at the claims that were made and whether they were false and misleading and the extent to which it took away from our clients sales because they never had a legal right to make the claims in the first place but on top of that there is no question that we presented evidence to the district court  claims that were being made by the defendants were false and were misleading and that if the consumer is sitting e m s device that's just going to exercise the muscle and it's going to see one on television it's going to say you don't have to exercise and you can lose weight on top of it and it's half the price of the one that's been approved by the f d a i don't think we're going to have much trouble presenting trials we get back there that it's not enough for you to have standing the de minimus sales argument that the defendants or nay that i guess they say judge real has adopted although it's not crystal clear from the record is one that has no foundation in any of the case law so certainly there's adequate record that that that dam on your attack did itself makes else secondly there was plenty of evidence in the record about the direct effect on  b m r corporation the parent corporation both in terms of the way it kept it kept its books and other things about their direct involvement in the marketing of the product and also the impact that occurred to them not indirectly but directly to them as a result of the illegal activity but the third thing is is that as we said in our brief if there was any question and we don't think that there was but if there's any question about the proper i really want to emphasize it if you look at the record in this case it was a very frustrating six to seven months for our client we couldn't take depositions because of a lack of cooperation people showing up for depositions they were timely responding to erotic tori's in terms of providing what we were entitled to and we were given a variation both sides were given a very short trial  judgment was granted that they hadn't even made their rule sixteen disclosures and there was a pending motion to compel the court never even address and what happened here i think it is look at the calendar she is there was quite a bit of activity largely by the defendants in terms of the summary judgment motion and it was filed on october twenty first two thousand and two and star a total fifteenth two thousand and two and because of the local rules my colleague mr chan had six days to respond to that motion for summary judgment now i don't want to say that to suggest that he didn't do a good job but there was enough activity that in six days it was frankly fairly difficult for for us to deal with all of the discovery motions that we were filing responding to the summary judgment and worrying about whether we needed another plane have particularly when we had a plane if we had a plate of who decision not to make the f d a claims private cause of and other words that have that the u s supreme court has held that a person complaining of an f d a violation does not have a private cause of action your response as i understand it is there's a separate california statute that purports to give victims of economic loss a private cause of action statute section twenty seven hundred twenty two hundred has a primer called unlawful and the courts i think it universally interpreted that prom as saying that if something is unlawful under federal law or under state law refine our argument a little bit in part to talk about what we're not arguing here the case that you're referring to bachmann says that private parties can't privately enforce the food drug cosmetic act i was with the justice department i years in the lanham act context in another other areas is that people have said when they use the term private in force and you can't really interpret the food drug and cosmetic act in the context of another sta say for a moment we'll deal with it a second thought we had a man buckman dealt with something particularly unique to the f d a and that is fraud burn the f d a so let me let me if i can just point the court to what i think are three very clear court to interpret the food writing cosmetic act then using the words that were used in bachmann and some of the other cases i think it would be very clear that that would be a private enforcement or private interpretation of the food dr cosmetic act and be absolutely proper the second situation is where a lower level employee in the f d a writes a letter and says you are violating the food drug cosmetic act this happen lot f d a generally regulates not through court cases but through letters to companies and in those situations under the rules and under a lot of cases the person getting that letter has an appeal right and oftentimes will appeal and will say to the f d a no i think you're wrong and in that situation where the plaintiff to go to court and ask the court to interpret the food run cosmetic act when the matter is under review by the intentions and others that the product was a legal second through from what the record indicates no objection being made and third to a paper filed in the district court by the federal trade commission where they rely on what they say is an f d a determination there is no case that has those unique set of facts we wouldn't have to have all of them to go that far but in this case where we have all those facts we ok if if if we are wrong on this and the fact is we go into a district court if this court reverses we go to district court and have to show that the claims made by the defendant were illegal false and misleading that is a determination that under federal law is not really supposed to be made by the lanham act court it's  determination that is supposed to be made by the food and drug administration in the first instance and so for us to have to go into a lanham act court and prove that the statements are false and misleading is really to deprive the f d a of their primary had as you pointed out you're simply relying on fossil misleading statements about what the f d a has already done that is exactly right and so that is exactly why we should have the right to go into federal court a question just about that yes do you are you here representing thing international inc and the thing companies i'm not there were fourteen defendants below i'm here representing only four today now there are some others that states distributor for the manufacture of have tronic it was based in cathedral city where mr even lived hudson berkeley was the marketing company that contract it for all of the advertising for this product are associated in some way with an international were settled out after the entry of judgment perhaps even after the entry of the notice of appeal like i cannot recall the precise time ok for their competing competing product what did your defense of the smart group do with regard to marketing the tronic thank you your honor that is exactly the right question the answer is nothing my clients did not have anything to do with the production of the informational consumes the bulk of what is an issue here they question dealing with financial information unrelated to matters in this case that issue was presented to judge real and there was a subsequent order that it resume there is in the record was clear from that record so clear that the role is it's fairly accurately described in their own first one complaint well what about the information that you were a nasty representative for the jury order is from stories it stores like bed bath and beyond walgreens which wish to order the product would order it through those companies they were what is called in the business a retail representative they would take those orders relayed through to the manufacturer and ship the product how to what it means to be broadly speaking because i don't believe that the president of this court establishes that broadly speaking helps if broadly speaking was enough jack russell terrier would have been decided in the other direction why plaintiffs were searching that a terrier breeding organisation had engaged in in misrepresentations relevant to the status of jack russell terriers they were individual breeders who were affected directly they claimed and i think the court accepted it for purposes of the decision by the misrepresentation because it impacted the value of the terrier associated with but they were in the wrong place in the chain the horizontal competitor with the defendant in that case was i believe the american kennel club and there's little discussion in the opinion about the fact that the plaintiffs were w problem jack russell terriers states i think it's very clear conception of what the competitive injury why it is and i'm going to quote it because i think the way in which he is presented is important here it says and i quote plain show one a commercial injury based upon a misrepresentation about a product and two that the injury is competitive for harmful to the plaintiff's ability to compete with the defendant the problem that we have here is th here is rooted in the notion of direct competition between the parties is accurate the policy of the lanham act and the basis for all of the competitive standing cases and decisions is that the purpose of  believe an injury that satisfies the first prong of jack russell but not the second because it does not in any way harm biomedical research the irish manufacturers ability to compete with t v products a company that packages stuff in boxes and put stamps on them the reason it doesn't harm is because those two companies are not in any way competing against each other they are indifferent to each other as i asked that question for which they wanted to have the to explore the full nature of what all these entities were doing if to be honest i assume that they wanted to have depositions because they wanted to depose all of the all of the defendants they don't actually difference is between having the opportunity to do all of your discovery and having an opportunity to do enough to understand what was going on if the gap here is meaningful you should be able to say what i any respect at all that that is accurate the case law of the circuit i believe indicates that he is presumed to have denied it and it is viewed in the normal manner which is to say that it is his judgment with respect to that matter is upheld if it information that would change the issues here and the second issue is they can't because none of the issues that they're talking about would change the fact the biomedical research the irish manufacturer it it does not sell this product in the united states that it did not market the product in the united states itself but only through its subsidiaries indeed a very interesting admission appears on the face of its complaint in paragraph nine which you'll find on page fifty nine of the record that biomedical research the actual manufacturers not even qualified to do business here when a foreign manufacturers makes a choice when  competing hurting us and the way you're competing is hurting them by decreasing the profit at their earnings through their subsidiaries why isn't that a competitive entry because it's not harmful to the manufacturers ability to compete with my clients because the manufacturer is not trying to compete with their their products they are alleging jack russell prong one and they are pretending that it is jack russell none of this farce i can challenge you can tell me if i'm wrong none of said if the issue here judge real is that slender toned distribution is the right party to let us bring the claim on behalf of them that's all that they needed to do and certainly slandered tone distribution would have had standing against some and i don't concede that it would have necessarily been the party that boxes and ships things in the mail because in response to your honor's question earlier i think the way in which the jack russell problem is written indicates that your injury must be competitive as to each of the people you're suing if you are suing and saying i've been injured i'm going to claim damages against you jack russell and the supporting cases say that that injury must be competitive as to the first post was sort of different tha liability there's a separate line of authority with respect to what you have to plead and prove in order to hold that officer liable for the corporate acts coastal says that he's an officer for officer liability you have to show that he directed authorized to participate again and this is a very important point that i would like to raise john noakes is an individual defendant who is one of my clients and here before us the mr noakes in his twelve seeing motion objected and moved to dismiss on the grounds that the the postal standard direction authorized and participate had not been pled or proven in this case as to him he got an order granting his twelve c motion to dismiss for failure to allege that he participated in any way in the act in the activities that orders entitle to be affirmed if it is correct on any ground and here mr noakes is twelve c motion to dismiss for failure to  because there is not then the slightest effort to preserve that engine in your argument you've identified a number of related companies the smart group yes that's for n and one of them the size did nothing but did the others do the other two are essentially retail representatives they they take and process orders from retail stores they relay those orders to the manufacturer the manufacturer ships boxes into the port in long beach and they point so that the boxes go out to the walgreens in the bed bath and beyond so those of the world and in those aspects of the complaint that refer to smart growth is there any allegation that any representative of any of the smart made any misrepresentations or false statements about anything  fashion that is somewhat cavalier strikes me my recollection is that they indicate that my client ship boxes and the boxes contained statements that to i would like to note that we think with respect to the twelve the waiver on with respect to smart inventions and smart living that we think that the case of us become a free ninety four  r twelve thirty six the two thousand and five decision of this court is directly on point there the court dealt with the question of a waiver of an alternative ground where the party that had waived so much cavalier suggested that it shouldn't be enforced against it and the court indicated that while there are circumstances in which a waiver will not be enforced the party who has failed to raise an issue in its briefs has the burden of coming forward that is i believe the law of the circuit is that the order and judgment are presumed correct if they are correct on any grounds what the plaintiffs ask you to do is to say please resolve the issue of alternative grounds completely in our favor without regard to this other one when i think the law is in fact that the court isn't required and supposed to say look there's an alternative ground on the record here that you failed the police and you didn't do anything with respect to that you don't you don't bring our attention to any of day the orders are entered on slightly different days perhaps but they were they were granted on the same day ensuing five years the injunctive claims are moot because this product and its manufacture have been gone out of business for five years and the manufacturer is subject to a permanent injunctive order out of the district of nevada so there is no possibility of any continuing controversy with respect to this issue from injunctive standpoint the claim for monetary relief under seventeen thousand seven hundred five does not survive the california supreme court's decision and career supply which is twenty nine held forth eleven thirty four for the record and the ensuing decision and prop sixty four which the sensually collapses the ability of a competitor to bring a monetary claim under seventeen two and seven thousand five hundred career supply and the modern law of california a monetary claim can only be brought for restitution ery relief which is to say i have given you money i want the money back that's not their claim survive well actually iran are under rule twelve see it isn't that the court may convert into rule fifty six it is that it is automatically converted into a wall fifty six motion isn't that only of if the court considers motion and emotion is automatically converted into a rule fifty six motion and indeed what happened here is that there was information submitted as part of that series of motions that the defendants filed where is what other businesses other than the three businesses that you've identified are your businesses did you have any affiliation with so i don't know whether he had any affiliation with hudson berkeley or some of the other companies and maybe he did and maybe