court never should have reached this issue but just for court impermissibly conflated standing with classification requirements the lender is says that once a name plaintiff establishes his individual standing that the standing inquiry is concluded whether the plaintiff can represent a class of others with similar but perhaps not identical interest is reserved for class certification analysis of rule twenty three to people in different circumstances shouldn't deprive one of the people to whom we did bad things from having standing that it isn't a damages case well your honor we are seeing both damages and injunctive relief right but  and it i don't think it is different we're still saying sachs is doing bad things and we wanted to stop and because of these bad things are entitled to damages and restitution it's in the lender as it was a discriminatory practice and the court held that the the context in which the practices were occurring was not relevant to whether there was standing to represent a class so soon you're right and it the judge made a let's assume you have i think you have is that all we need to say was their plight was sufficient particularities and not address whether or not they state a claim or do we have to move on to the question of whether they state a claim  i think you're planing is very particular it describes all the things that you think make up the course of action and doesn't great detail so i have no idea why the judge was relying on nine b but do i also  the court the score held that very similar allegations also stated a claim the district court didn't even cite rubenstein versus neiman marcus there are plaintiff can represent a class of other purchasers and where the products the composition of the products is not relevant to the case such as here you are talking about a uniform price tag that it's  similarity of the misrepresentations and i would refer the court to the sax vendor manual that is cited in the complaint that indicates that the merchandise of comes to saks off th from the vendor pre labeled with the discount price and therefore though that the price tags are similar across all products compare at cases and those cases easily found that even compare at is is deceptive particularly in the context of what we call it in the case law has distinguish between exclusive product cases and non exclusive product cases or a product is made exclusively for the outlet store and there are no is no other market whether the terminology is market price or compare at it's that there is no market for the comparison to be made and the claim is actually false in other cases for instance defendant cited case barreling versus d s w which is a nonexclusive product case  the the there is a market that the product is sold at other retailers and so there is a market to compare the retailer the advertised reference price to i liken it to he alleged that he would buy things there if their pricing pricing it were different i think that of course this complaint was filed several years before this court's guidance  davidson versus kimberly clark and at the time he alleged that he was shop shocked at saks again i think the inferences that can be drawn from the totality of the complaint is that the plaintiff is a bargain shopper he it analyzes price tags and he wants to get a good deal he's alleged that he would like to shop at saks in the future that saks will continue it's continuing to mislead  it please the court leanings collinwood l from sidley austin on behalf of the sax cooperated i'd like to begin this morning by addressing an issue that did not come up in my colleague's argument but that i think is vital which is plaintiff's lack of individual standing to bring this claim before i address some of the ninety and merits issues that your honour's raised the supreme court has made it clear that a plaintive cannot manufacture standing merely by inflicting harm on themselves that's a direct quote from the clapper case the complaint here makes it clear that that is exactly what mr nunez did mr nunez investigated to sack stores for a period of five months before making his mr nine years do that or did his counsel do that mr nin the plaintiff himself did it or people on his behalf we did the investigation so you look here's my suspicion of what happened in this case what happened in this case is the plaintiff's lawyers didn't investigate found the plaintiff and i think that's consistent with both practical experience and the allegations of the complaint assuming that's what was alleged that would not deprive them of standing would it it would your honor and if the plaintiff's lawyers went out and did investigation of saks and then ran across  plaintiff who is working to bring the case would you have done his own investigation your position is it would be dismissable not in the way that you pose dr of the tickle but ok but why so why isn't the why isn't the complaint consistent with that and because the district court didn't rule on that correct and it was and so you're asking us to rule on it in the st instance based on allegations in the complaint which i can reasonably read as saying his agent's which is to say the attorneys did that investigation so i move on to another issue for you may i address why the plaintiff counsel's investigation still deprives them of standing your honor which is here this is not a lawyer that went out and found a client work counsel investigation only appears once in the operative complain at paragraph thirty three dollars here we know from mr unions is prolific litigation history that the same counsel has been representing him continuously in california consumer protection plans to two thousand and thirteen to the present you can see that in our  page twenty one in the best buy case he brought a so lawsuit about an original price this just gets back to the point i raised with your with your friend and this is why i want to stay away from whether or not this complaint states a claim it's not what the district judge said the district judge said this complaint doesn't say to claim because you didn't play with particularity and because you lack standing to raise a claim on behalf of everybody else if those rulings are wrong then you can go back to the district judge and make this argument you can make the other arguments put to ask us to do it for the st time i want to appeal with the st half of your argument time doesn't strike me as the most fruitful way to pursue this case understood their knowledge and yes if that's what appears on the face of the complaint it was it's either plaintiff's investigation or counsel investigation you know i'm asking whether or not it appears you want to continue to argue this issue it's about it does it appear on the face of the complaint that he was a current original pricing cases that plaintiff's cites in his complaint and in the briefing on appeal this case is about a market price representation and your honor asked earlier about the compare at i would argue that market price is clear a compare at because it is not a representation of a former price it is not a representation of an original price it is a representation about what others in the market would charge for similar products of like grade and quality and this court  already held in the sperling case that that that comparative representations are not inherently deceptive and plaintiff is not cited a single case that is found that a market price representation was deceptive there's no allegation here that the market price representation on our products was not a fair comparative or to what other products were being sold for now i guess it was never sold at that price the allegation is that saks never sold that particular  market price suggest you're talking about this item not similarly constructed items by other people that's what compare that means compare i mean compared to some other product and you'll see that of course us this is the market price is a price paying for it here in the idea your honor is that the shoes that are being purchased here at saks are of a quality that would be similar to those that other retailers sell for a higher price this is an outlet store and i would direct your honour's to two sources dispositive that the complaint in that case did two things one it allege that those products were never sold at neiman marcus for that neiman marcus for that price that's what plane of those here but also it was critical but they also alleged and i will quote that similar products were not being sold for the compared at price at the time of her purchase in the area of the store so this court has already looked at that idea of a broader area and i think the f t c guidelines are consistent with that particular take let's go back to what the judge actually ruled on and that's my problem here the reason i gave your your friend some questions about this the judge said the allegations were in particular enough that's the judge's basis for dismissing the claims but what's what what what doesn't state a claim but that's not what the judge said the judge said you should have told me more and i made a loss to figure out what more mr newman yes could have said two answers that you are one this is that the issue of the why that's how this court addressed the savings over something it's actually being sold at that price elsewhere presumably sacks not presumably sacks around and that's why that i was like i am i am a reasonable consumer who shops at saks regularly that's how i would read put all this other stuff if you're not trying to convey to the reasonable consumer that they're getting a savings because elsewhere it's being sold at this other price that's higher well let me directly to the f t c guidelines which i think provide an answer to that question and plaintiff's himself relies on the f t c guidelines as a basis for why he thinks this is misleading that's it excerpts of record twenty nine and thirty except plaintiff relies on the wrong section of the f guidelines sixteen c f r to thirty three point two addresses the pricing representations that are at issue in this case and the f t c and the quote it is a comparison with other merchandise of essentially similar quality and obtainable in the area and the f t c provides an example that is squarely on point it talks about a retailer that would like to sell brand x pens and advertise them for a price that the retail he believes it's comparable to the price of other products of quote like grade and quality and it permits those representations so long as and this is a quote a reasonable number of principle outlets in the area are offering brand y and essentially similar and for that price yes you got it where we're talking about that provision the way i read it is that it is a safe harbor for retailers who are trying to advertise something that isn't a regional price and it allows them to make a representation about a former original price so long as that price was the prevailing what we do our products where the market price for the ninety days before the purchase that's that's my point is that this is not a great you know i see your argument is that because because the market price was really the price at which you charge for the shoes you know ou market price is that the market price was the price that we advertised the market price to be the point is we never made a representation about a former price and that was seven thousand five hundred i'm not mike but my question is sort of by negative inference if you don't fit into safe harbor under the california statute isn't there a cause of action i don't think so your honor because the f t c guidelines far more squarely address what the f t c guidelines don't control this is a california course of action they do not control but they certainly provide a reasonable basis as referenced by the plaintiffs complaint for what a honor i don't and again there is no allegation that the market price representation on our products is not an accurate reflection of what other retailers are selling business has women's shoes for that the plaintiff is instead trying to fit the square peg of a market serial but again the judge said you didn't tell me this that's what that's what i find so problematic about this case if the judge granted a rule to a b six motion to dismiss you could oh you could both be here hard time figuring out your arguments may have merit but i'm not sure why we should address them in the st instance i understand your this record did incorporate i referenced earlier motion to dismiss the order of excerpts of record t