and the protection of consumers from variable rate energy billing records the only question on appeal is whether the district court erred by binding as a matter of law that the contract materials referenced in the complaint were clear and conspicuous the district court still wrongly concluded that two of the documents at issue in this case in taint a clear and conspicuous disclosures of the variable rate as a matter of law in fact the conclusion of a clear and conspicuous is the opposite conclusion that was reached by the district court in boortz and the district court in stanley sports that reviewed precisely the same direct it is compelling to others learned district court judges reviewed the same disclosures and didn't nominate a motion to dismiss holding to the jury could reasonably find that the disclosures were not clear and conspicuous since the standard of review here is the novell we asked that this court reversed the district court and find that the question of whether these disclosures were clear and conspicuous is a question of fact and the case may proceed forward with discovery on this complaint as file with thirty seconds before my three minutes i would like to touch on the documents themselves when one looks at the documents that were reviewed by the court one can see that contain a clear and conspicuous disclosure and in fact the documents say that in many many places in the document and in fact the only disclosure that can be found regarding the variable rate in the introductory package was in fact disclosure that gave almost no information was not set forth in any different and in fact was in the smaller than the other headers and it was just simply as was reviewed by the court in stanley does not provide clear in conspicuous disclosure i see that my initial three minutes is up and that the court may have questions thank you very much  is that a fact that you didn't address in the complaint that is correct your honor we not only did not address it in the complaint but even in the declaration that was submitted by direct energy which put which was in appropriately considered by the district court that did not or how those documents were set in fact the only indication upon which the court based their finding was in the  contained in legal briefs or memoranda and that is precisely what the district court judge did in this case thank you counsel i have another question under paragraph thirty six of your complaint you say that the defendant here applies the frog and boiling water treatment by that i mean by that i assume you mean small increases that are gradual  of like a gliding path which i referred to in a different case with the same defendant so that it's hard for the consumer to notice is that correct that is correct your honor and in fact  stated in the richard case that the practice is that direct energy is practicing here are in fact the same is there and it is interesting that direct energy in the richards case and argument made the point that it prefers not to do variable rate contracts it would prefer that they not happen yet in this case they mislead consumers into a variable rate conversion at the end of the initial term with what we pulled out of offering new contracts at that one time i think demonstrating the very point that you make your own bank account so i have no further questions at this time so it's to touch on the points of the law you know besides the clear and conspicuous determination the actual act of making that determination is just was improper of the court at this point and the district court when one looks at the sims and in fact only if the facts of the case are undisputed and the district court determined as a matter of law whether notice was reasonably conspicuous particular also in the mayor vs the protect case of this court including windsor m about one thing and that is whether the written contract material the direct energies that mr shafer clearly conspicuously disclosed that he would be charged a variable rate not about pricing practices or whether they for was misled or what mr schaefer expected from that contract just about the contract closures the truck or correctly found the direct energies disclosures it clearly in conspicuously identify the variable as a matter of law and we have to cheer for clearing conspicuous means that a reasonable consumer would both be and understand the variable rate disclosure if he or she looked at the documents and when there is no dispute about the documents documents referenced in his complaint and the contract language in those documents shows that they were sent as to set a reference each other internally that didn't mr shape or embrace that he already briefs in response to today he still does not deny that those documents were sent to him to step so there is no dispute and it is a question of law and as a chief judge garage correctly held that both sets as a matter of law the enrollment agreement which contained a simple easy to read chart and the renewal agreement which she said with an even better using a simple chart on the st page and judge her achi is not the only one who thinks that these disclosures are good these charts were specifically created by the new york public service commission that regulates energy companies like direct energy and it requires that they use these cut to be clear for us he didn't rely on the p s c his approval of these forms he found that the disclosures were objective really clear and conspicuous based on their own words and appearance and that is a legal determination the courts regularly make as a matter of law they do so because treating the issue of clearing conspicuousness is a back question not to see it it creates uncertainty and drafting and risks inconsistent i think that deep indicates that my three minutes are up basis specifically talking about not just the fact that it could be decided about as a matter of law but that it must be because of the problems it creates with inconsistent plaintiff there did not identify the advertisement that supposedly misled him so this court actually asked for supplemental briefing in the appeal and had took into account the documents submitted by that supposedly misled him or her when he or she filed the complaint and the suggestion that the record needs to be developed and that the issue should be left to the jury puts the findings that they were sent and say mom loved this would again because mr shafer didn't attach any documents to his complaint he didn't have them when he filed the lawsuit direct energy authenticated them through the daniel would was agreed to set the judge embrace that framing but as i said the documents themselves or the other evidence about their language references but the other documents the welcome letter says in closer your terms and conditions the terms and conditions and the st paragraph reference and attach schedule a which is the disclosure statement the disclosure statement is titled schedule a two terms and conditions that the st step in roman documents so you i want to turn to another issue of customer disclosure statement which does not refer to variable charges as this requires instead refers to standard variable rate plan and then idea respectfully i don't i think that that that language more than satisfies the statute and that a reasonable consumer who read that section to see what would happen at the end of the term would know that  charge the statute doesn't require a description of the charge or an explanation of how the charge will be calculated just that the variable charge be identified by the question ok what's your evidence that they want to such then he would have to come up with something in response to what you said but that that didn't happen here and i think you haven't really explained why that's not a problem you say that's a lesson to each other but just internal references d if he disputed that the terms and conditions came together with a disclosure statement that would would be a fact question i would concede that but he hasn't denied or to sell fixed rate contracts the company makes goes to great lengths to send reminders about the expiration of those contracts hedging perfectly contract is much easier if everyone could be  addressed these disclosures and here the case that we have here is not an issue of directors he flouting regulations about clear and conspicuous disclosures as i mentioned that they use the forms that were created by the p f c and approved by the p f c before they  a contract whether or not it's appropriate as a matter of law is he's relied upon struble and it's true will is in fact a motion for summary judgment the dangers of this argument cannot be overstated because it undermines the very argument of direct energy's counsel there is no other factual basis for that and even if it was a declaration it would be improper  litigation if you prevail at this point let us say your honor this is not a matter of trying to win the battle to lose the war these disclosures are not clear in conspicuous  overrule the complaint should proceed and we should be able to proceed towards discovery because the other courts that have considered this the stanley court and or court have looked at these exact  in the exact loose they said that they cannot consider as a matter of law that they are that they were clear in conspicuous in fact specifically the stanley court stated this court is not competent enough in the straightforward your honor we would expect to get some discovery from direct energy regarding the context of the of these documents how they were sent whether sent by mail where they sent by e mail whe as judge pooler actually referenced in her concurrence and richer that we six survey evidence on what particular passages would mean to a reasonable consumer how this would be interpreted documents three of the documents were not clear and conspicuous there was nothing in reporting on the seven it says that if you get one document right if you get one piece of paper right that means that all of the other documents can i think the court case presents very good guidance as to where we would proceed or pace is the same contract but on the electric side and in that case we have the motion for class certification pending and an opposition to summary judgment and i believe the court is likely holding its ruling until this circuit rules on this case but i think that the future holds mr schape ultimately moving for class certification and ultimately direct energy will ultimately will seek to move for summary judgment which we believe should be denied because the question of whether the