promote their wares and usually do not fund presentations for no business purpose to your client at a phone call to the said here's a conference sponsored by merck just leadi wouldn't want to seeing that it's unlikely that merck is sponsoring this for new business purpose no your honor because that is the border code case also specifically recognized without going to be without going to the symposium it would actually be difficult the council how how did the text of the invitation that was actually faxed to dr kay differ from the request to send the information that was contained in the script for the call or it didn't defer it all it's all a question on hold on hold on so if it didn't differ why did the defendant not have permission to send exactly the invitation that it sent because you're out of the question is not whether the permission to send a fax or an indication about a clinical symposium the question is under the t to go to it and it turns out that when you go to that it's actually a company selling timeshares trying to sell you timeshares in the everglades i guess i got exactly what i read too but they lied to me about what they were so about about what the fuss about we have that argument but can i just ask this all question so you said there's no difference between the way it was described on the phone call and what was in the facts so mr cain was injured when he found out to understand what you're saying that there was consensus to tell people to get into t shirts with tales of those sponsored by merck and that is what he got and you're saying that from the face of it it does not look any different from what contain all the information necessary to opt out specifically one of the things if we didn't include what requirement that a that a person wants the one thousand clues the telephone number of the fact of the fact machine that shouldn't be sent the fastest any more if they did not disclose that you had it in order to have an effective opt out opt out notice you have to be able enough to tell them i didn't think you were i didn't think you were complaining about the opt out notice any longer we are complaining about hatchet st has to be that he didn't consent to a fax advertisement i'm saying he consented to this to receive an invitation to kill supposing sponsored by merck you received it invitations which will supposing sponsored by the merck and i'm learning had needed their time to mark i'll be handling the argument from the th and then here i don't have a whole want to add to the questions that the court has already asked i think when your honor asked how did you test the fact very from the script mr belin responded not at all that in this case this is an extremely unique situation where a single fax we sent before that fax to send a person in person called the company asked if the individual wanted to receive the invitation to the seminar sponsored by merck and one hour later sent the fax to the seminar sponsored by mark that was exactly the same as the script under any definition of prior express consent this fit that typical p c a cases deal with some kind of consent typically your earlier sound elating to another  right your honor it is not this case but i don't agree that that would be an action recoverable under the t p a if you pay regulate the receipt of an unwarranted back to the extent they're saying they got a fax and someone could have been injured have gone to a program and something else happened then they were expecting that might be covered by a consumer fraud cause of action if they had actually attended and suffered injury but it isn't the type of claim that is covered by the army you can imagine the cases where the something draws that work is promoting all over it there's an advertising component to that fact that was not that he did not consent to wouldn't that wouldn't there be an excellent because it's possible i think it's a case would be determined on the facts of what happened from from the well i think that in a factual kerry you gave the invitation to receive the facts did not match the content of the facts in fact there was branding on the fact itself but not in the script here the level of branding is regarding the clinical treatment of two disorders this is sort of like inviting you to a dinner sponsored by pepys pizza and then you say you're surprised when you get an invitation that preference is happy feet then you had no idea that they might talk about  during the dinner it is as one of your owners pointed out obvious to anyone receiving a skype of information that you know medical clinical treatment information including the defendant's own product might be  there was another issue that was raised on appeal which was the denial of the class action does that issue become moot if we agreed with you on the summary judgment dismissing this this was the type of material for which consent would be required because there was not any consent protocol so it's a very very different sort situation and you know left open the possibility that the defendant could  presumption that this was an advertisement but this is nothing to do with our case jing it's encouraging companies to send out misleading to ask for permission in misleading ways which basically violates the whole purpose of the p c p a people are not supposed to be misled into what into what t symposia are about the whole reason why there is the pretext doctrine that would that that the f c c has recognized is that there's a recognition that that very often a companies try to use a pretext to get people to come down to golf tournaments of judgment actually mentioned and said come to our golf tournament you know we're having read a lot that's a great people there tiger woods and such and you get there and before the golf tournament they start talking about merck's drugs and how great they are and why that