about an unfair business practice so here are the article three injury is the fact that the consumer purchase medication and we're not talking about a few extra drops of medication here your honor we're talking about the fact that half the bottle of medication or two thirds of the bottle of meth of the medication was unusable and that the fact that they had to spend money on that is what gives rise to article three standing now it's a separate question about whether they've stated a claim under state consumer law in this context so even though a consumer might have article three standing to bring a claim they still have to meet that standard so we're dealing with night when i get up and when i get a prescription for i grabs when the doctor says take two crawford twice a day for ten days and i always expect at the end of the ten days that there is going to be a quantity left in the bottle that doesn't bother me if i get his again i'll probably use it up without a doctor's prescription and that's that's who said the point but the fact that i get a little bit more water than what is necessary for the number of drugs prescribed has never seemed to me it could be a problem he couldn't it was just a number of jobs described you couldn't get the last crop out of the bottle and when i mis why am i putting in i grew up in i dunno i'd be up the creek so what's the problem with having some uncomfortable with that kind of claim going forward but it goes for it doesn't go forward not because there's no article three standing but because that would fail to state a claim under state rot the second thing i'd like to restore as a response is that these are different types of eye drops than the ones to what you refer you are these are drops that the plaintiffs are forced to take every day for the rest of their lives so it's not as if they get it and then it runs its course they're going to keep purchasing bottles of played in the complaint that this is a change that is feasible for the defendants to have meet and the reason that we know that is that there is that the defendants have in fact changed their droppers and have changed the size of the drop over time medication and separating that according to how you know how much extra how much roger than sixteen michael leaders the drops were so for example if the drops were thirty two micro leaders then the consumers we would propose that the consumers would be entitled to half their money back now we haven't reached that stage in this litigation yet and i think it's important to know that this is a pure motion to dismiss only on the face of the complaint credence to his basic economic theory which was that if there is a reduced supply the cost will go up but said you know the said think women had played that here what issue is whether or not the fact that if the drops were smaller the consumers would have to spend the rest money we think that that is adequately or it is adequately but here one of the reasons it is is because at least two of the studies actually ask the question how much is the cost of which was sponsored by merck and then share a study both of which are discussed in the complaint actually looked at this question you know what drives the cost of treatment for consumers and they concluded that standing here today and this is not speculation this is not you know an assumption is that standing here today drugs that come in smaller drops are cheaper to consumers over the course of treatment and again that's a conclusion that a mark study found and that's on top of all the other product claim and the consumer says well my injury is the difference between what i thought i was getting and what i got for defense that the manufacturer could have raised the prices or charged a different price would obviate injury in all of this cases and so to say that that changes the fact that the consumer has already spent the money on medication they were forced to race doesn't the fact that they could have charged something else doesn't change that we're going to look at each medication they couldn't use and so that's really that's the heart of the injury here whether we're talking about you know future or what's already happened the heart of the injury is that they're forced to buy that medication that they can't use and that  however more of that drop as we said so it doesn't matter whether they get to the bottom of the bottle or not even if they get to the bottom of the bottle throughout the course of using at the consumer has been forced to throw away a is that the product could have been improved but it could have been made more efficient they argue that they believe they've come up with a better way to make these a few air proof products well that's not article three standing that's not that's not injuring fact not under the absolutely not because this is their conscious in treatment doing the purchasing treatment for their elements and as as judge roth noted earlier question this is really a packaging efficiency issue they're getting the treatment that the that they want and they're getting mean if it's if it were then a consumer could literally walk down the grocery aisles and pick any product that was over packaged in some way i mean you could argue that plenty of products are are inefficient some way or could be improved you could argue that a consumer doesn't have to buy the big jug of peanut butter or doesn't have to just exist but then just because the plaintiffs have chosen to sue a group of defendants in one court does not mean that these defendants are acting collectively to control the marketplace in any way they haven't articulated any or alleged any sort of conspiracy or corrective action or anything like that what they're trying to do is hold each individual defendant responsible for what the marketplace look like and the marketplace has these f d a approved drugs that work exactly as they're supposed to if they could be improved in some way as plain gas because you're actually paying for volume of gas here you're paying for treatment you're paying for a certain number of doses there's no doubt you're also paying you're also paying for a volume of medication that comes in the bottle buy a smaller amount at a lesser cost and in the financial economic injury that they're suffering it might be if it wasn't entirely speculative i mean this product does not exist this product hasn't been designed tested manufactured approved by the f d a this product is something that they believe should exist in the marketplace but it wasn't so just as just adds a court can't assume that pla are going to save money if a hypothetical product someday comes into existence it also can't assume that plaintiffs have wasted money because the hypothetical product wasn't used in the first place here they have sure they purchased a volume of medication but they purchased that volume in order to treat their ailment for a certain period of time they have been alleged anywhere that they ever ran out of medication before they need to refill their prescription medicine again this news is kind of a that and they were you know every time they sold a car they were being forced to pay one percent here these plaintiffs have been using this medication they willingly entered into these transactions for years potentially decades and now after the fact they come up with a way that they c may not be anything dropping and dropping you might get some of your say and really get i'm sure i mean all of this is speculation and not all of this is speculation because you have to assume that there's some other product out there that would have been cheaper in order to come up with some pricing differential and you have to assume that if defendants had not engaged in this whatever this allegedly unlawful act is using standard f d a approved drop or test that there would have been drop a chip that was put on there instead that would have saved the plaintiff's money so they could we raised the injury issue in the district court and we did cite article three in our in our motion to dismiss but the court did not rule on the article three issue at all so we we believe that we anticipate and believe that as this court said the seventh circuit will also address no injury in fact here we don't even have a superbowl market to look at for an expert to opine on what we have here is a product that does not even exist so there's there's nothing that anyone could do to try to figure out what that that's absolutely cannot be ordered by any court because there's a preemption issue obviously there you can't order a company to manufacture a product that would then also have to be approved by the f d a before it even came to market i mean i'm not aware of any case ever ordering any company to manufacture a product that's inherent problem with this case these products exist they've been working for decades  my my colleague here has argued that you know it's wrong as long as they paid money in the past and now they're asking for some of it back but that's enough to state a claim for standing work of course that's not true you have to h the legal theory to support your standing and i think judge wolfson did a really good job in her in her opinion of articulating the various different types of standing theories of injury theories that one might could we could do that i mean even imagine how the floodgates would open in that case we we're going to raise the issue of we argued that this is no different than someone suing over the last few drops of the catch up bottle or toothpaste is it to you know more fuel efficient paper towels could be more absorbent the list goes on plaintiff's response to that is that they were actually the article three standing in those cases now if that's not a red flag to federal court the district court but well then article three is not functioning as it should this is this is really a slippery a very very slippery slope i think if there are proper role in our system of government and the constitutional limitation of federal court jurisdiction to actual cases or controversies this is the farthest thing from an actual piece of controversy this is a lawsuit over f d a approved products that worked the contours of the injury in fact requirement will not precisely defined i really generous requiring only that claimants allege some specific identifiable trifle of an injury that's what this court i said with regard to standing now on those cases now it's interesting because you're talking about the last few drops of ketchup what happens when it's half a bottle which is more like this case then you know it starts to look like there's something there but standing is an on off switch and it's not you know you're not more injured or less injured for the call three standing purposes you are injured or you're not wearing what takes care of the slippery slope is whether or not the plaintiffs have stated a claim this court asked about what was going on in the other cases have in similar cases have standing been addressed the answer is no other than in the in the gruesome case in the in massachusetts the answer is no because those cases involve whether the plaintiffs had stated a claim under state law state rod addresses these questions and deals with it so for example and do the new jersey again that's a question not of article three standing but a question of whether the plaintiffs have stated a claim under state law which is a question that the district court has not reached yet in this case so we actually you don't have to answer that question here that's on remand a question that remand so again that's that's a question that's a question of state ra is what kind of claims can you bring and it's more or federal law in the context of a federal statute it's those substantive ra's that take care of the slippery slope arguments and take care of the concerns about those whose claims that we're uncomfortable going forward again claim here require substantial injury so has to be substantial and many state claims have been materiality aspect to them and it requires that it not be reasonably avoidable by consumers somewhere talking about catch up bottles and paper towels and all of those things those are crimes that are not going to go for but they're not not because of the standing issue because for defendants to have already done mess and it's not speculative that they do this defendant al kahn for example developed it sixteen micro legal proper tested on patients it did very well and then decided not to use it so you know if there are proper designs have been published so all of this this idea that there's you know this dropper or not doesn't exist simply isn't factually correct and those designs are out there they've been tested by some of the defendants already and so this isn't a case where it's fairly theoretical this is a case where it's been it's already been tested and looked at the only look at over judge wilson's opinion just that if this she seemed to criticize your replacement cost theory minute it will come