were that the entry of an online and on my card entry would cause one meal to be provided to hungry child and some of the representation is include one of them is in two thousand and twelve and thirteen when there are returns in material said quote one dollar equals eight mil secure by feeding america in two thousand and fifteen their advertising said quote one code feeds one more entry feeds one more so i don't see how there's any question that the reasonably understood meaning and no doubt the intent on congress part was to make people think that by entering a code online from a canal boat product that one hungry trial we would be given a meal the the the problem with that and it would be also the same if we're just talking about whether the on line code and that that company would then supply food subject to a limitation is certain is subject to a limitation of the of the mad at least as far as canard was concerned and and then but it was generally to feed people but not necessarily dollar for dollar dollar to go in and dollars resulting in a meal well that's it that's a distinct issue and that's the first issue about the direct cause and effect does the online code injury result in one meal being provided let's say doesn't it we think it does but let's say it doesn't but certainly they at minimum represented in the district court seem to agree in this reconsideration order that the claim or the representations by can agra were that the online code entries or one on one code entry would at least enable feeding america to provide one meal not five meals not have milk there was a correlation there was a cause and effect where the feed in america actually used the money for that who knows but the point is columbia our consumer protection act is whether or not purchases acquired because here a purchase is required a person could just have the code office of the grocery store shelf and then use it without buy that the statute requires that a purchase is made but what it doesn't require is that the defendant in turn required a purchase to be made obviously people bought yes could someone go to the grocery store write down a code and it absolutely could happen but it's clearly implied if not stated explicitly that of course purchases were made so yes what a class member who the idea was to of course of course was right that's that's that's right but again if a purchase was fact made a class member wouldn't make a purchase would it be told to relieve your client an alleged purchase was made i don't he well that's that was the issue about whether the complaint amend the complaint should be allowed to be amended and as long as the amended complaint can be consistent with what we have alleged it should be allowed in other words we have an alleged for example isn't there a telephone conference where the district court specifically said that this statute grants it cause received the defendant's papers into a read the just a judge's decision it was our opinion that we didn't have to make that allegation but this idea that it's almost like a game like the it's not even true factual but let's even say it was that the lawyer said all of this will be the last time i ever m the complaint like it's a game that that i now that i meant the complaint i i should have done it this way but i didn't that's and now therefore the plaintiffs rights are not cannot be exercised is frankly ridiculous the as long as the  not like the the judge made her ruling and then we still didn't make the allegation it was our believe for after this phone converse that we still didn't need to allege yes it was an issue when a student defend his position was not ours but we didn't agree with that we had an informal discussion on the phone that's not preclude us from amending the complaint as long as an amendment would otherwise be appropriate which it certainly would be here and i return to the contract question for just so your adversary says that this was not can't be construed as a definite  operative's you couldn't accept at the moment that you entered your code you couldn't have known whether and out the cap on the donations that would be made in reach so you couldn't know that you were accepting or not and you point to adversaries argument because one doesn't have to know that a unilateral offer is open in order to accept it so and i gave the example in the briefs the police are looking for a criminal suspect they say ten thousand dollars reward if the person if you turn the person or locate the person and report him to us and they give or they have a description i see a person he fits the description i don't know if it's really that person i don't have a photograph i think it might be so i call the police police officers to be mr bank do you know for a fact that we haven't yet got the suspect in custody do you know for a fact that our offer of a reward is still open as a no i have no idea but i think this guy looks like him and if it is him i better get my reward and if it is him i would get my reward so i don't see why is no the idea that someone has to know that an offer is open a unilateral offer to accept it is just not true again different example from the briefs someone loses an i phone there are lots of i phones out there ok so let's say i find that's right and that we're in the a referral obviously i assume the mail for title case and that was the key dispute the key dispute wasn't the general meaning or effect of a while supplies last disclaimer it was whether that disclaimer in fact applied to the those basically an issue of grammar there was not a dispute as to whether the coupons actually had won out once the court found that the while supplies last disclaimer did in fact the part of the coupons there was no dispute that as long as the coupons had won out which we didn't dispute the attempted acceptance of the unilateral offer what was no good because the offer by its terms expired there's also the other issue about a wall supplied less disclaimer which had it's kind of vague and uncertain it's  the reach then it would be there would be attempted acceptance against the same thing with a reward for a loss product i or what have you with the examples i gave earlier you don't have to know whether the offer is still open to accept invitation for offers were if you make an offer by end to an online code and we and we haven't reached that special magic maximum number of codes and the and the end date of the promotion hasn't been reached we will give this money or the ten cents or eleven cents or whatever to feeding america so by entering the code on per those terms you are offering you say ok i would i am often i'm proposing that by entering this code this is my way of century communicating that you will make that eleven or ten cent donation it was after the entry is made entries were made that kind of then said we will give eleven cents whatever the words were to fit in america of course the acceptance is similar in terms of its general language to the original advertising but that would always be the his if i said to you i'll give you a six i will give you a widget if you give me five dollars and you hear me five dollars well if i said you haven't given me five dollars your honor i'm going to give you a widget well that language is very similar to what i proposed but of course i've accepted your offer it's no different here if it's a bilateral contract that this does not define the district court by saying that we were claiming something that makes absolutely no sense by the way that the except in the same thing as the invitation for offers or the offer itself was complete nonsense it makes no sense either factually or legally in any respect what is the  if it's an offer an invitation for all for sure look at the leftwards case was in ed in the newspaper i e public first people to come in and give us a dollar in salary whatever we will give a fur coat to that person they don't know that how many people read that it went out to the we're inviting offers and here's how you make it or here's how we're inviting offers you make an online call injury and if we accept the offer and we will accept the offer if we haven't reached the maximum the date hasn't expired at the offer  no not not well not if it's a bilateral contract know that the contract became complete in the event of a bilateral contra this is the contract would have become complete when after a person entered the online code would cause one meal to be given to which old or simply unable to be given to hungry child for example let's say spent one hundred dollars and they gave one hundred meals dollars per meal ok and all of a sudden the national donors they refer to gave them a whole boatload of more food or more meals so now the average cost per meal would be no say two cents per meal whatever it is instead of a dollar per meal that does not mean that the next two cents would cause another meal to be given and it does not mean that another two cents will even enable a meal to be given maybe the next meal that feeding america want to return would cost another dollar that's the discovery but the whole in other words in essence what they were doing is taking general statistics and trying to convey them as having a marginal meaning which they simply didn't as and the next donation will have the phone if it was completely made up was completely made up they'd never disputed that it was made up simply said oh it should be understood that way because we gave the money and then what makes it even far worse is that under the contracts which of course they don't disclose to the public but under the other publicly available they don't disclose them on the website you need to feed in america nor get the contracts in each year specifically say that the money is going to be given not to not for the purpose of feeding children or obtaining food or meals but for operational cost and legislative advocacies and each year was either most or all  money that was slated for those causes now that what kind of arguing and what the district judge essentially said in different words was that well what's the difference money is fungible well there is a difference and that would have to be dealt with in discovery i don't know that the money maximum amount to a third party charitable organization feeding america importantly there is no allegation in this case that con agra did not make that donation the district court found that connor made the maximum potential donation and plaintiff does not challenge that finding so apart from the question of whether or not a contract was formed it's clear that there could not have been any breach con agra did as it said it would do under plaintiffs allegations however no contract could have been formed the district court carefully reviewed the actual language in congress promotion and found that no agreement exists the court recognized a general rule under new new york law that advertisements for the sale of goods are not offers rather they are only invitations for offers and thus do not create the power of acceptance only of one exception to that rule your honor is where the advertisement is clear definite an explicit and leaves nothing open for negotiation importantly here the district court recognized that con agra as per no promotion did not even rise to the level of an advertisement for the sale of goods the promotion did not directly advertise the sale of kind of products there was no purchase required to participate in the promotion there was no cost associated with participation in the promotion the only requirement to participation was that someone enter a code on kyra's website the district court found that the promotion was merely a promise to make a donation only a promotion it did not even rise to the level of an invitation for an offer it's clear from the district court's two opinions that the exception to the general rule was not satisfied there was no clear definite and explicit terms to reach a meeting of the minds the very fact that the district court disagreed with the plaintiff as to what a reasonable person would understand from the terms of the promotional materials tells you that there could not have been a meeting of the minds that in itself answers the question was there clear definite and specific terms such that a contract could have been created the court found that the promotional materials  make a promise to make a monetary donation up to a maximum amount in contrast the plaintiff reads those same materials and alleges that conner promised to cause one meal to be provided if we look at the actual promotional materials that were put into the record through mr banks declaration you'll see that they clearly state the amount of money that conner would donate for each code entered they also inform the participant what that monetary donation donation means in terms of meals based on feeding america's costs plane of school real quarrel here it was is with how feeding america calculates the cost of a meal plaintiff alleges that feeding america uses a correlatives statistic to calculate the cost as opposed to a cause and effect statistic i have no idea what is really mean but importantly your honor and this is what is it i thought it was done by taking the total revenues of the feeding america and dividing it by the number of meals that they had that actually i believe that's how we alleges the feeding america calculates cost but that doesn't address your point which is that the donation was not to pay for a single meal cost under their calculation but it's but your point is that it wasn't i guess that it was there was no direct causal connection that is that is correct your honor and even more to the point of whether or not there were clear specific indefinite terms plaintiff alleges in the amended complaint that the promotional materials the same materials that constitute contract misrepresent the cost of the meal and are consequently misleading that allegation your honor in my view is dispositive of the contract claim it's an unequivocal admission that the alleged terms of participation are not clear definite and explicit plaintiff cannot have it both ways the promotional materials cannot be clear definite and explicit and at the same time be misleading pla con agra promised to donate the cost of one meal for each code entered but nowhere within the amended complaint does plaintiff define what the cost of one meal is there is no recognize standard that we can consult to determine what the cost of one meal is what the cost of a meal for me i think is different for the cost of meal for others people have inherently different understandings of what the cost of a meal is by its very nature is it's a wholly ambiguous term so if we accept the plaintiff's interpretation of the contract can't the contract because it's not clear and it does as if you accept the plaintiff's theory that con agra promise to donate the cost of a meal such a promise cannot satisfy a test that requires terms which are clear definite and explicit and require nothing for negotiation it simply cannot all things considered the court correctly concluded that there was no meeting of the minds that i was no contract and i ask if you could address your adversary's argument that the district court misunderstood alleged that was not what was argued below that is not how i even understood the written arguments presented to this kit to this court here and with that the response to the offer was accepted i understood the employees argument this morning to suggest that after a cold was entered there was a nother screen that jumped up on the website that that thank the participant for entering the code and stating that con agra would donate ten cents or eleven cents that was not pled that was not argued the theory below and the theory that the district court addressed was one that that stated the entry of a code was an invitation which was the excepted by the statement on the website that said will make will make a donation in response to the online entry it's the very same statement that is embraced within the terms of participation and is the part that's different from theory that that person individually under the argument presented today i understood that that there was a second screen that came up that wasn't what was argued below that wasn't what the district court addressed it's not alleged in the complaint and it's not alleged in the complaint but if it was i mean give it some thought if if there was to be a meeting of the minds one suffers from the same inherent problem yet that just doesn't meet the test for a specific definite an explicit terms but the only way there could be a by law to bilateral contract is if con agra understood the invitation and accepted the terms of the imitation if con agra stated in response as mr banks argue thank you for your entry we will donate eleven sounds kind of understood the invitation as inviting or as an offer inviting kind ever to donate eleven cents in this case there's no dispute that  there could be no there could be no breach in that situation ross can i ask you a question about the consumer protection claim i understand that the that there's no allegation that the plaintiff purchase any goods and that's that's what the district judge said rights records of the goods were purchased i mean that i mean it's just it's sort of crazy to think that there weren't goods being purchased in light of this promotion maybe it wasn't a wedge but maybe that's something that could be flushed down discovery of the case went back well there were purchases of goods even though it may not have been explicitly a requirement of this promotion right the statute says an unlawful great practice to make misrepresentations as from a true fact in connection with consumer goods or services that an individual purchased that you purchased certainly the promotion was intended in direct indirectly promote the sale of kyra products as well and certainly con agra products were purchased i assume by people who also participated but not as part of the same transaction they're separate and different transactions resigned validation i would not think so i would not think so but but clearly in the in the pre motion letter your honour's kind of raised the point that there was no koons consumer transaction alleged in connection with the consumer protection act claim plaintiff was given with with an understanding that that was the defect in his pleadings that we were challenging he was given the opportunity to amen and the court i recall in very clear terms expressed to him that it needed to be his best and last meeting he did him and he did a man and he did not allege a consumer transaction unless there's any other questions your honor thank you bank yeah it just seems to me mr frost alluded to this it seems to me that your real quarrel here is with feeding america they didn't do with the money what they said they were you know what they were going to do and that you're you know that perhaps they're not a particularly deep pocket can aggregate is and therefore let's go after can agra for something that are feeding america it all wrong and that's i think what he's suggesting and he might or might not be first of all we don't we're not obligate the name field in america but certain causes other then providing meals the statistic about the cost per meal came from feed in america but our gripe is if you will our complaint is not with what feeding america did in terms of the statistics it's what kind of good did with that i don't know the feed in america represented the cost per meal as a marginal statistic as in the next ten cents by meal it's kind of the did that it but i just if i know i have a little time with their yeah supply the money  heard as far as we know we assume that yes it's you but it is you but again let me go by i have a few points i'd like to make in my limited time if i may the idea that because the terms were misleading there were definite enough is complete nonsense the terms were clear what was misleading is that kind of language didn't abide by those terms if i say you know if i tell you i want to give you six cans of soda for a dollar and you give me a dollar i give you five cans my my statement i'll give you six is misleading but it's not  also talked about what that money would go for what if in the contract said all this money that we're giving you will go for new furniture at feeding america's headquarters that there will be compliance of the contract that says or the proposal that says one meal one dollar equals eight was going to be used for furniture now will be used for meals that's what discovery so the whole the whole campaign was based on f words again hour and then and then just go back for rush for time i guess the fifteen seconds but just to go back to this idea about if there's a bilateral contra well as lefkowitz says if an advert if an advertisement is not an offer but an invitation or offers it's an invitation for offer on the terms stated so yes an invitation for someone to end their on line code entry with the understanding of the idea that we will give x number of cents or whatever it is to feedin america which for the purpose of providing a meal or at least that would be the amount that enables a meal and what makes not also no sense is my colleague so that well you can determine what a meal cost is different for everybody but