thank you your honors fisa court my name is allison goddard and it's my privilege to represent plaintiff kevin park in this case i'd like to reserve three minutes for rebuttal but just watch your time i'll try to help you but i'll try to your honor thank and the owners that the district court erred in dismissing the second amid a complaint and denying lead to him and for the thirty minute complaint the crux of the district court's decision was the in roman page that was presented by the defendants there's no question that the roman page is just one part of the process that the plaintiff alleges defrauded him in the class of consumers the court's decision was based on this incomplete picture of the roman process defendant has sole possession of the coupon offer that was that the war to this scam and they did not present it to the district court so what we have here is not just a case where the district court considered documents ever incorporated by reference to the allegations of the complaint we have a case where the defendant controlled the record limited what the court could look at but refusing to cement one part of the process and only having the court focus in on the enrollment page and under this court's precedent in operating engineers vs gilliam that was incorrect because the plaintiff made specific non conclusive the allegations that the plane had given the circumstances of the transaction had no reason to realize that he was in a position to be entering a contract with a third party are you asking that we send it back with the idea that the district court would or should have treated this as a rule fifty six situation converted into a motion for summary judgment allowed at least limited discovery and go from there well you honor to the extent that we're asking that be remanded so that discovery can be taken and the case can proceed on the merits that's what we're asking we don't think that just continuing to focus on this one motion and allowing us limited discovery is sufficient because we believe that the plaintiff has pleaded sufficient allegations to stand on its own for the complaint disagree that it was appropriate to consider the entire roman page no not without the entire moment process your honor it's like  explanation is consistent with the enrollment page but it's not because the way the pay in roman pages played in the complaint is that the plaintiff had no reason to even understand it was a contract and the and that's not pled as a conclusion that's played by the plaintiff telling the court in its in his allegations of facts what the circumstances were he was transacting with game stop he he in the process of that transaction this offer popped up and he had no reason to think that he was giving his email address for any reason other than to give him the way to communicate the coupon offer and so while the enrollment page is plaintiff in that case tried to do the same thing the plaintiff one of the court to look at the one picture the one page and this court wisely said that's not appropriate in the context of the internet before you even got to this page you had to see several pages before that and when you look at all those pages calling the caption describing you as a penpal wasn't making an accusation against evil knievel that he would have engaged in a criminal enterprise it was a joke but you could only pick up on that contacts by looking at the pages that preceded it counsel had a question for you about the complaint if you look at page one of the court's order which i believe is accurate record eleven there is a sentence that line twenty four let me know when you're there yes your honor the court writes this new window provided the details of the coupon offer and explain that provide an e mail address the customer would be agreeing to a subscription to a membership fee based program known as complete savings i read the complaint more than once i didn't see that anywhere in the complaint lines twenty fourth twenty six i may be asking the other side the same question where did that come from that i understand that's what their it says that he clicked on the coupon and what he saw was a direction to enter his email address not the terms and conditions of a coupon offer and it says he entered his email address on the roman page so that he could receive the coupon and get back to the game stop papers the terms and conditions were on the in roman page i understand your honor but when he's paid popped up he had no idea based on clicking on a coupon offer that there were even terms and conditions so it's not like for example being in a car dealership when you're taking to the business office after negotiating a price and you're given a stack of documents and told and you know in that situation you're about to buy a car and if you choose not to read those documents that's on you but that's not the situation at all our client wasn't in the business office after negotiating a car he just purchased something from game stop and got an offer to save money on his next purchase and so i want to return to what i said before i didn't give you all of the background for why i said what i did there is a case called it l s versus web loyalty dot com from the second circuit from this last year which seems to be essentially on all fours the same claims that were made by them here were made their second circuit indicated that basically they could not the court could not consider what the district court did here instead it had to convert it to a summary judgment and allow limited discovery i wanted you to comment i assume you know about that case to comment on what what we should draw if anything from the second circuit well i think the problem with that case your honor is it the second circuit's reasoning really relied on the district court's reasoning in this case and judge haas reasoning in the very case which which judge burns relied on so it's a circular reliance so if if if you were to look at that the ls vs web loyalty case and use that as the guiding direction even though it's only persuasive authority and it certainly doesn't bind this court you're just basically making the same adopt errors at the lower court me here that's interesting you say that because if i understood the second circuit's instruction they said you've got to have this treated as a summary judgment it's not a totally sick situation you can't go behind what's on the face of the complaint and treat what the district court did here as being the if you will the predicate for disposing of the case you've got to allow discovery and go on the basis of a summary judgment i would thought that would have been very helpful to you you don't seem to be treating it that way why is that well i think your honor the the problem is it shouldn't be what's going to happen if that if that occurs if you look at the practical effect of that if we're still stuck within this in this confines of the pleadings and you get limited discovery when you get remanded we've we've met the standard there's no reason to limit our case in that way to the confines of turning this into a rule fifty six motion based only on this the narrow issue of the enrolment page so you want us to consider this strictly on the basis of the face of the complaint if it were sent back you would not want any instruction like what the second circuit said to the district court you we just wanted to be an open open record if you will and start all over again but we were right we what we would want is for the order of dismissal to be reverse the failure to provide them with a copy of the funds transfer authorization there is an e mail that they allege and their complaint that that indicates they provided you with with the information or the respect to the failure to provide a copy but i think it that's not part of the that was not incorporated into the complaint and at least that would fall if we followed that the second circuit held in the manner the judge smith just described here well here here it was improperly considered by the court and it's a little bit of an odd situation because the court on the one hand said i'm not going to take judicial notice of it but then on the other hand the court said i'm going to consider it as an exemplar and what essentially the court did was they consider it as evidence that a confirmation had been sent and there's that procedural aspect of it that we disagree with that that we disagree with but substantively we also disagree that you can send an e mail which our client did not receive or has no recollection of right when he would have never said i was far as i can tell the complaint doesn't deny receiving it but all i'm asking you is that on that aspect of it you win if we follow the second circuit at least right we agree on are we i feel like i'm not answering your question  how do you distinguish the ls case yes i would say it's that it's not binding on this court it was the wrong decision it was made according to the same logic that the district court employed here so to adopt that procedural posture the court did not send the case back for summary judgment proceedings it sent a back for summary judgment proceedings on only one tiny portion and that portion has to do with whether or not w say doesn't apply for two reasons your honor if we go if we if we think about the copy claim number one as a matter of incorporation by reference frankly i think the district at the second circuit is wrong for not considering the e mails that has said that the if the claim depends upon the document even if it's not referenced in the complaint then this court has the right to consider it as a matter of is published in support of the f d a it says that one way to do it is to simply have two copies of the contract and to let the plate to take one home let the consumer take one home to look at the in woman page here which i think should be in who will be incorporated a reference it's pacifically directs the plaintiff to keep a copy for himself it is one of the various ways in which web loyalty met its burden of delivering copy it isn't specifically intended to be a flexible standard i'm sorry can we just shift a little bit or gravel certainly time i'm still troubled by the court's use of the exhibits that you prof because the court specifically indicated that it did not intend to take judicial notice of these and yet it relied upon them and the court also indicated that they were are subject to reasonable questions about their authenticity how can we sanction a district court relying upon that type of evidence at the pleading stage will do two things you are number one this court is certainly free i would disagree with your characterization of what judge burns did he end instructing the plaintiff to file a motion to amend instructed the plaintiff to identify by factual allegations in that amended proposed many complaint those allegations which would dispute the authenticity of the documents for the purposes of incorporation by reference however specifically the plaintiff with unable to do so in conceded in  way that he was not in a position to determine whether the screen shot submitted are accurate authentic representation of the entire communication displayed to consumers and that is not a dispute regarding its authenticity or reliability specifically saying that he cannot dispute that that is enough for this court certainly to take a view of those records what's your best case to the effect that best case to that effect that the why you should take a look at the moment page but let me address the counsel's discussion of this coupon offer on the page preceding the enrolment page judge specifically dealt with this he spoke about plaintiff's allegations regarding the so called dynamic process and rejected those allegations under it and kwame specifically because played this allegations w invested more particularly in describing what happened in this dynamic process particularly the small coupon banner which took you to the realm of it with the full terms of conditions the plaintiff never said never identifies a false or misleading statement i know but isn't the whole page designed to mislead as i look at that page it was designed to mislead the intro the roman page itself you want but maybe you had everything in there that you should and make and i don't want to get into the size of the print and  with discovery in this case about how how this this page came to be designed process would it isn't plausible that one would find that this was done deliberately in an effort to achieve the result that in fact happened here and  suggested in a report happens in overwhelming number of cases obviously i would say no you want to give in the design of the page which importantly important to this court in the freeman matter saying it now based on the design nobody based on what you know based upon davis and and as well as freeman in particular freeman in the remember the fifth circuit as well and vistaprint noted this that right where the plaintiff is giving his authorization the disclosures appear right there that was critical to this court again on a motion to dismiss in freeman where the court was considering material being hopefully by reference that wasn't critical to the court to conclude that the that the matter was not deceptive and it was not a that he relied on the coupon or for an unrolling in the program there is such no occasion here that he relied upon the coupon offer yes but so that is a problem and there is no allegation that the coupon offer was misleading if we go down the right now any plaintiffs any consumer can simply say i received a coupon offer and therefore i'm excused from reading all the terms in conditions there were no additional allegations regarding the coupon offer if there was a false page and the page is replete with you are joining a program and that to get the coupon offer you must register to join the program when that when the plaintiff is taken to the page he can't click on that coupon in order dominates the page i mean but if you have to read the coupon on a two things one in the in the coupon itself it says you get the coupon for joining complete savings to the left of the coupon it says sign up for complete savings and you get the coupon register for complete savings you get the coupon and right below in this is and i do think that this is the part that that really shows this is not a deceptive page and that is at the authorization point and i mean we have read the whole page carefully with  suspect that if they ever got into this governor about how it came to have the i guess graphics is the right word for it it came to have this design it was because it was based on an assumption that people would just sign up without being careful ok well two things are one i would respectfully i would disagree with your review of the page and two i would come back to what is the plaintiff's burden here now not that there was some hope in discovery i might find some piece of evidence about intent the question here is whether or not in what the allegations plaintiff has presented demonstrate eight sept of advertising clearly the second circuit found that it was not so and you have on the page again coming back to the authorization very clear we began to says authorization the disclosure of both the amount of the of the membership the fee for the membership and the fact of the data membership fee based program known as complete savings right where is that in the complaint if the complaint is in the complaint is that the new window popped up like plaintiff's said that they saw that in them because i just read all of this at the i just read is that in the complaint yes or no the way he writes that i don't believe so no so where did it come from it comes from the enrolment page but i thought that just to court that he wasn't relying on that he said he was relying upon it to the extent that it demonstrated the types of disclosures that could be provided here consistent consistent with what the plaintiff said isn't that the problem is you know either you're pregnant or you're not i mean isn't that situation we're in here i mean either he was reliant on it or he wasn't and it sounds like i don't know where else this came from well he you want respect and i think they aren't able to do but i could be just a pre clear this a court unless i'm remembering this incorrectly said he was not relying on these documents correct correct in the us is opinion yes but you just said that he did he did in the second the second opinion which is but both of them are up here in the second opinion which was preceded by an order to give the plaintiff a chance to challenge the authenticity which the plaintiff was an able to do which takes away the impediment for incorporating this by reference and considering them we believe that the district court was right here the district court observed the disclosures were prominent in clear that this closures were made repeatedly and it was made clear to the plaintiff he be charged for this membership in the to be dealing with claims in this case judge burns very specifically went through the grounds for why he concluded that this not only was not deceptive but also was not unfair to the plaintiff including many of the this go to discovery as it should and if you look at our complaint we have tax the senate reports but we don't just allege conclusions based on those there are allegations based on documents produced by web loyalty to the senate that would be subject to discovery and these documents included information such as that showed information that consumers are four times more likely to sign up if they're not required to provide their billing information that's that  sixty that the rate of benefit usage for whether loyalty members that were enrolled through data pass is between point two percent and eleven point four percent seventy to eighty percent had never viewed the website for the rewards program that's at your four sixty seven those are from level t s documents the the the the strategy here is to get the court to make a decision without a complete record so that we never get there and the that the allegations of the complaint are sufficient implausible to get us past the pleading stage and just very quickly with respect to the claim that plaintiff has an alleged any affirmative misrepresentations well that's not the standard as the court pointed out the process the even if it said click here for a coupon down the road you would potentially get a coupon but the but the coupon offer didn't say if you sign up for awards will give you a coupon it just says click here to get a coupon that's what we allege and they won't let us and they won't show the court let us where the court argue with the actual text of that that coupon offerings thank you very much thank you for your argument the case just