the printed print ads are a big deal because if you had to replace all sixty four of them you're talking about over eight hundred thousand dollars in dismissing ambassadors complaint the st thing that the district court did was question the player's ability of the allegations about philosophy of the speed representations and there's another thing that the district court overlooked which is extremely important the allegations in paragraph fifteen of the complaint that for a period of three full years question then is what are the plaintiffs like ambassador joe when direct evidence of fraud solely in the possession and control of the of the defendant when you make a fraud claim you're you're making a statement that the  defendant has made a statement that is objectively fouls and so the pleading requirements require you to to to state what that objective statement of f issue about ambassador having satisfied knowing being which is the heightened pleading standard as fraud well what is there that provide that pled that provides a plausible interpretation that they knew either the speed representation or the printer had representation was false at the time they made it and you know that goes to the heart of it what we pled was in that the  printemps failed at a rate that wasn't just a little bit higher than represented it was eight hundred percent higher and you think that alone is enough to show to infer plausibly that they knew the representation was false i would say yes but we don't need to rest on that your honor because what we then have and it's what we spoke about a minute earlier judge benton is the three years in which they lied and deceived us about how many printouts had been replaced at significantly later it was in the three years following market they have been selling it they have experience of other customers and if you look at the representations they made to us that are in writing and detailed in the complaint they are saying in the year one the printer is outside the war and that year later they've got one that had only one printed failure they've got another one that had two and that the worst case scenario is six eight hundred percent of them that we believe that the court making reasonable inferences in favor of the nonmoving party certainly should have concluded that there was enough to state a fraud claim  and this was not just a matter of advertising puffery well it sounds also like he may have had more of a contract action for a product that this was a limited field of it's consideration and your title to get your money back as opposed to proof of an objective inducement to the transaction interesting point your honor if it weren't for the three year supply isn't it known about how many print heads when we asked how many were being replaced if we had been told the truthful answer we might have been here with a for a warranty or contract claim but that's not the situation that we had and your honor i would submit that if plaintiffs are required at a pleading stage before any discovery pluggable because the contract modified that the warranty did not exceed any that long so so did the bulk of the failures occur post warranty expiration is that why this isn't a warranty claim there were twenty million failures during the warranty period about which durst lied and didn't come clean on to our client there or i want to say and your honor i'll have to check the number before i get it for my rebuttal but i believe may please the court kevin about go for apple e durst image technologies with me a counsel table as my partner gary rosen who was on the brief i see the court has picked up the elephant in the room which is the absence of a contract claim  a limited warranty that was negotiated for the customer of ambassador operated this printer for four years night and day and exclusive possession of the printer and  struggling it was some of the product that didn't exist material misrepresentations of non variable performance non variable performance with respect to the oregon gas and but this court in trouble back and it was two thousand and nine so was made the point in her order you assess the weather plus ability on the factual allegations as a whole so for them to come in now and make arguments that are not supported by the record that somehow they were misled by actions that were occurring for  what was happening and it's just impossible that i would want it it's a factual issue so we're not going to resolve it here but that they wouldn't have known but well that was being tired and fraud explanation for the substantially greater rate of replacement than what was discussed prior to purchase absolutely and they're certainly meet you talk about the cases where fraud was pled with particularly the consumer cases that they th variable it was always based on historical performance what is your record you know what is the princess the printhead life expectancy and what our representative said your honor well the worst case scenario that we found is x and that depends on maintenance customer usage you know whether you're willing to put up whatever the variables were and there were variables but it was never an assurance that durst could expect the same level of performance think they were running this machine twenty four hours a day seven days a week i think it's still in operation now we know that they're certainly still in business and they still have the equipment and our knowledge still making quite good use of the of the equipment  allegation by saying that the facts will exclude exclusively with their now knowledge she said that they couldn't do so and why couldn't they do so because they have the printer they're living with this thing for four years i don't understand that argument because isn't the isn't the fraudulent statement that we've only experienced x number of failures at the time that this sale occurred that would be exclusively within your control they wouldn't have that i mean they know what happened there printer but they don't know what your experience prior to that was right if if correct if ok so then why isn't two things the the higher the significantly higher than expected failure rate plus the law is three years later why isn't that enough that they should get to find out what your real experience had been at the time of the sale or you asked a loaded question your honor no i ha and there have been no foul up but importantly they don't allege that our representative rod when he made that statement they don't allege fragile and tat with respect to that statement they asked the question what has the failure rate been experience was significantly greater than as they allege represented to them plus the subsequent lies isn't that enough for an inference that it was known it was false now they don't allege that it was they don't allege that it was  wanted it to or expected it to doesn't mean that it was a false statement at the time it was made right i agree if it were simply a slight disappointment of expectations but this is a radical departure and i believe we have a right to see that they knew at the time they made the representations that i don't radical departure from the experience they represented was what they should have known and with that your honor we ask that the district court's decision be reversed and i do see my time