the next matter on our calendar is federal trade commission and new york versus quincy bio science thank you k morning council good morning your honour's and brad grossman for the federal trade commission may please the court in its national t v and internet advertising campaign quincy bio science told consumers without qualification that improves memory within ninety days and that these effects are clinically proven the complaint sets out detailed facts that when taken as true plausibly show that the ads were false and misleading on several distinct levels any want to which was enough to defeat the motion to dismiss first the complaint alleges that quincy made unqualified across the board claims that provision is proven to improve memory when its own clinical trial showed no statistically significant difference between the people who took that supports the very claims that you just mentioned or your honor the complaint in paragraph twenty nine specify several reasons why in totality a fact finder could could determine that the subgroup results were unreliable  the first is that the study as a whole failed which creates a competing inference on its own that the product doesn't improve memory but there are several additional facts or honor in that there was no difference between the police the pussy boat group and the privilege and correct correct when quincy conducted the two hundred eighteen person double blind trial that it advertised in its ads that two hundred eighteen person trial found no statistically significant differences i submit your honour's that that alone creates at least a plausible inference that the product doesn't improve memory and under this court's precedent all we need to demonstrate is a plausible inference not necessarily the most possible inference but your honor paragraph twenty nine of the complaint goes way further than that paragraph twenty nine of the complaint provides for additional reasons why that subgroup analyses could not be reliable evidence of a treatment effect or at least that this is a question for experts because you're under the legal standard is what experts in the relevant field would decide so one of the reasons is that paragraph twenty nine explains that the subgroup members only had six do to stickley significant improvement or i should even sa prevent because that's the issue in the case statistically significant differences and isolated tasks it is the risk that records show how large those subgroups were how many people fell into those two little pods the complaint does not make such allegations quincey submitted evidence outside the complaint that states that one hundred out of two hundred eleven study participants belong to the subgroups but your honour's quincey advertise that the entire prevalent arm of the study showed improve memory and and as we explained in our reply brief even if this court were to consider that outside evidence that outside evidence would lead to an inference that these claims are not just misleading but literally false but if your honour's i'd like to turn to several dition the reasons that the complaint in paragraph twenty nine provides showing that these that there's at least an inference that these suburban houses were unreliable another reason is that the analyses were performed post hoc which means that after the experimenters discovered that the two hundred eighteen person trial failed as a whole they then performed over thirty different analyses looking for a positive result or with the test of with that the vast majority of those results turned out negative your honor quincy made full throttled advertising campaigns based on a few positive results overlooking the vast majority of the results of its of its trial proclaiming that a gold standard clinical trial proved it prove memory while overlooking the fact that the vast preponderance of the data were negative making an x in the sea of those exactly cherry picking your honour's could've said it better but in addition to that there are two to two further reasons i'd like to explain why the subgroup analyses were unreliable the first is the sheer number of data points analyzed so as as are as are as part of twenty nine explains quincy performed over thirty different analyses looking at different variations connecting subgroups to results and as a complete explains whenever you conduct an additional statistical test your honor commensurate with that is that the odds of finding some kind of outlier in the data taught when you conduct a scientific experiment you're supposed to specify your hypothesis in advance then you test your hypothesis with a subgroup analysis what exists is you find data you're  searching the data for a hypothesis and maybe quincy could later on in time retest that hypothesis and see confirmation but your honors this is entirely a question for experts but if i may there's and it would be one thing your honour's that you have an opportunity to present substantiate any expert documents for example about the validity of the statistical analysis correct but we would do that summary judgment you did not at this point  extensive evidence outside of the scope of the complaint i can i can only speculate i i don't know but one of the one of the things that that happened here in this quincy synopses came up there was a big dispute what in response to the motion dispute what we did what we disputed your honour's was the that the court should not weigh outside evidence no way evidence the validity of evidence or the validity of the subgroup analyses and that objection subsumed in objection to this outside evidence but i submit your honour's rule twelve d was crafted for this very situation under federal rule of civil procedure question and in asking what happened here you know it's not the happened i think i think that the judge violated federal rule of civil procedure twelve dean that's what happened when you did you tell him that the twelve the problem the gentleman tutti but we we didn't we didn't have an opportunity the judge didn't hold a hearing in this case and what we said on the face of our of our papers a motion for reconsideration we did not file a motion for reconsideration we appealed directly because because we thought that the problem was sufficiently weighty that the court had already opened that door by considering evidence to reconsider would be futile and this is a case your honour's in which there's there's deception there's pervasive deception on the national airwaves and we feared your honour's that this would only add that that if motion to consider reconsider when the judge has already open the door by considering not just the synopsis but an end i h study to make a finding that subgroup research is common in the dietary supplement field we did we determine that once the judge opened that door it was just going to lead to months of additional delay and that would be the right thing to do for consumers so that's why we took this case up on a l if i may there was one additional reason why the subgroup analyses are unreliable as we allege in paragraph thirty one of our complaint the entire theory behind this product previn was that it operated as a brain protein supplement the theory behind this product was that your brain proteins decreased with a with age and that that somehow causes diminished memory and that the product the jellyfish protein would make it to your brain and supplement brain protein the complaint human to the human brain and the complaint allegations which the court has to take is true state that quincy's own safety studies showed that the entire theory behind the product was false because they knew from their own political research that the dietary protein is the jested and broken down in the stomach no no better than any other any type of food we eat so that from that alone a fact finder could infer in totality also considering the failed subgroup results in the tiny number of stigma if it results could say this doesn't look like credible evidence but i don't i don't want to get i don't want to get ahead of ourselves here i mean this is twelve days and i ask another question or your honor part of what i understand to be  your opponent argument is that you're the f t c but you really holding them to an f d a kind of standard and this you think this is a supplement that shouldn't be treated like a drug by requiring you know randomized controlled double blind clinical trial and two publications or however many publications you're holding them to an undue standard what's your response to have several responses first in between our briefing and that of a mickey public citizen therefore f d a commentaries casting doubt on the reliability of subgroup analysis in addition the claim here isn't that quincy was was committing deception by virtue of not conducting sufficiently rigorous studies here the allegation is that quincy opened that door performed a randomized clinical trial your honour's performing a randomized clinical trial does not give an advertiser carte blanche to misrepresent the results of the trial you're focusing on the fact that they were advertising saying our claims are substantiated by the gold standard correct and clinic when the gold standard trial in this case your honour's actually provides important evidence why the product does not work and if you look at all seven thousand part of me are on a basis for the claim is the underlying medical exactly two there are two bases here one is that the quincy made very broad advertising claims that wouldn't even be substantiated by the subgroup results even if they were true and the second theory of the case is that the subgroup results in and of themselves ar unreliable in this case but i submit again this is just a motion to dismiss the legal standard in this case depends on the views of the scientific community and when the district court made this decision he said he shut the door on hearing from experts  outside documents that basically credited quincy's outside experts whoever wrote that synopsis as true and then made inferences that controverted the allegations of the complaint and that under this court's holding  in global network communications in any other case and many other cases it's simply cannot stand on to go back to the then back to the dead i mean back to a judge who seems to be the just seems to be  considering well you know i we we we were looking for which will allow summary you know what will allow us to develop our case to take discovery and on a motion for summary judgment to to to to provide an opportunity to fully rebut this exchange of evidence that quincy relied on in its papers we simply expected the district court to rely to to make this decision based on the facial validity of the complaint and you didn't do that if we get that opportunity morning your honour's may please the court scot eisenman for new york state the district court erred in dismissing the complaints f t c act claims and because the complaints state claims cover at least the same conduct as those federal claims this court should reinstate the state law claims after reversing the dismissal of the federal grants and the complete pleads a classic case of deception and false advertising under the f t c act when she repeatedly advertised and this is one example from quincy's website that in a computer assessed double blinded pussy book controlled study privilege and improve memory for most subjects within ninety days and the provision works by providing protein originally found in jellyfish that our brains need for healthy function but is diminished in the aging process claim that it effects most participants was not correct that is simply false your honor and is contradicted as we allege in our complaint by the double blind placebo controlled study that showed  statistically significant results in the private group as compared with those you meet us so worried that if we talk about the double blind study we're raising the had changed south of us which don't require a double blind gold studies but your argument is if they mention it then it has to meet a certain scientific validity is that correct well they are our claim is that if they mention it they need to accurately represent the true it precisely your honor and instead they resent they represented the exact opposite of what the study should and not arguing that all supplement all supplements who at that advertise require this double blind gold standard that that is our argument and that is not what we always are some of the in the cause word that that should we find in your favor that that's what we would be devolving to and i don't think that this court needs to go there your honor this court could hold that that when an advertiser represents that it conducted a double blind placebo controlled study that found a result that's that he must have actually found that result and not the opposite of that result and the second part of the advertisement that we say is false or misleading or deceptive is that the joey fish protein of apple corn can cross the human blood brain barrier and in fact again quincy's own studies contradicted that claim in those reasons the complaint adequately states an f t c act claim and adequately states a state law claim as well and because new york courts consistently look to the f t c act into federal court decisions on the f t c act and specifically on sections five and twelve when construing the state law claims alleged here under g p l three forty nine and three fifty and under executive was section sixty three twelve there is no need to remain for consideration of th claims and instead this court should just go ahead and reinstate those claims as this court did for instance in the herman case where it reversed the dismissal substantively of the of the federal claims and then reinstated state law claims that were yes your honor that sustaining the state law claims here follows ineluctably from sustaining the federal claims and just one of the last point i wanted to make in response to the individual defendants arguments about personal jurisdiction this court is squarely held as recently as twenty eighteen in the charles schwab case that there is pending personal jurisdiction over state claims when a complaint alleges they are claims that arise from a common nucleus of operative fact with a federal claim that allows for a nationwide service of process like the f t c act here so without even having to go to new york's long arm statute which independently would provide for personal jurisdiction over the individual defendants this court can hold that the individual defendants were i want to start with your question judge stanton got this exactly right and the answer to your question about why did he consider the synopses it's because i'm the f t c didn't tell him not to you can read their brief to the district court they didn't cite will twelve de they didn't object to our inclusion of that's not as they argued from the synopsis all the synopsis did was include data they have the same data they investigated us for a year we had none the less was a proper for the district court to make factual findings about this subgroups based on the such morning he did not make any factual findings based on the suburbs let me let me back up a minute previn is a dietary supplement for mild mild memory problems associated with aging that's what it's advertised as being mild memory problems associated with this was a hypothesis in advance screen people on the way in what is your level of impairment now that's the eighty eight eighty eight screening tool so within the two hundred eleven participants who completed the study one hundred of those participants were eighty eight zero one or two meaning they had normal functions or mild cognitive impairment so there was effectively a study within the study the eighty eight zero two subgroup one hundred people and then other people who were who came into th study with more severe impairment at that at the beginning of the study we don't dispute that if you look across the entire two hundred eleven people who completed the study there was no statistically significant difference but you could dispute that i've been i'm not but for the one hundred people who had normal cognitive function or mild memory problems associated with aging there was a statistically significant difference on three of the tasks and if you look at all of the tasks and it's all in the record and they didn't dispute any of this in the district court six of the tasks the provision group did better only in three was it's to sickly significant their theory to the district court had nothing to do with what our advertisements were this was this is all a brand new theory to this court below it's all in paragraph twenty nine we all agree that we were looking at paragraph twenty nine that's what judge stanton focused on and what paragraph twenty nine of the complaint says is subgroup analysis is inherently unreliable there is no attack in paragraph twenty nine on us specifically other than that we conducted they say thirty analyses saying that i'm sorry you are going to say that paragraph twenty nine i've got it right here after failing to find a treatment effect for the sample as a whole the researchers conducted more than thirty post talk analyses of the results looking at data broken down by several variations of smaller subgroups and then they say this methodology greatly increases the probability that some statistically significant differences would occur by chance alone that's their complaint paragraph twenty eight the bottom it says the madam of medicine memory study failed to show this to the statistically significant improvement in the treatment group over the principal group on any of the nine tasks or the people who hold that's looking at the whole or the people who had more severe for the people who had more severe cognitive impairment so again we are advertising based on the subgroup results there's no dispute about that we're advertising based on the subgroup results of people who had normal cognitive function to mild impairment one hundred people in the subgroup and for them we had we have evidence we have gold standard evidence and that's what we're advertising based on and again their complaint is that we can't advertise based on subgroup analyses at all because other people who had more severe impairment we didn't have the same statistical of you know to specify that it's a subgroup of the entire study in the ads but we're advertising to people for might mean again if you read the state's brief they're suggesting that consumers might think that we're advertising a cure for alzheimer's number one we're not advertising a cure for alzheimer's we make art we make the disclaimer that we're not advertising to prevent any disease we're also advertising for mild memory problems associated with aging we're not advertising a cure for all memory problems for any purpose so what we're advertising is a supplement f mild memory problems associated with aging and we have a hundred people for whom we have that back up and are you saying that was not a post hoc analysis that that was part of the hypothesis going in that was and the study was designed around that so your hon that that would be a fact that would that that the f t c would dispute because they're taught me look are you saying it but i'm not at post hoc what i'm saying is that we screened on the eight there's no dispute that we screened on the eighty eight scale on the way into the study so we were asking people what their level of impairment was on the way in that he wasn't designed around that premise the right is not he was disappointed it was designed the study was designed to find out whether privilege and improves memory for people at varying levels of impairment so again we don't dispute that we don't have the evidence for people who had more severe impairment coming in but for supplement that were advertising for mild memory problems associated with aging we have exactly the support ok bear in mind that none of us as scientist drug it's a supplement and that's an important distinction but so here is the f t c in the state alleged two things first they allege that we advertised that we have proof that it crosses the human blood brain barrier or you you you say you have proof that it improves memory but we do but we but by and you talk about brain proteins well but but again whether it breaks down into peptides in the question is so but the two points are on the first of all we are advertising in this is in paragraph thirty one of the complaint and if you look on page thirteen of their complaint where they're citing what we say we say our advertising from their complaint when cerebral spinal fluid and blood plasma samples were taken from a population of dogs dogs to which  administered the sample showed quantifiable evidence of the supplement was present in the nervous and circulatory systems of the animals so they were advertising based on studies we've performed of dogs where we've analyzed their cerebral spinal fluid and found apple core and in the cerebral spinal fluid and on that basis we believe that the active ingredient does cross the blood brain barrier but we're very careful to your ads make that clear that they're that was not based on human studies this is from the ad this is a quote from the ad talking about dogs so it does say it does say dogs we never really we never say human but the contrary you know that it doesn't we know it your honor your honor their allegation is that our safety studies show the that it's tolerated it's completely dissolved in the stuff we don't agree that that's what our studies show that's what they've alleged but they have provide no support for it in the can only this is the kind of thing that would benefit from discovery except your honor c that's what you judge stands footnote which they criticize actually got it exactly right because they're allegation is not that we're at that we shouldn't be advertising the ability of the product across the blood brain barrier for kids number one we have the dog study that shows that it can but number two there allegation is that the product can't work that it it's got to be snake oil it can't possibly work because it's broken down in the stomach and judge stanton said with regard to that allegation there are actually to reasons why that's not plausible first we have the dog study which is it which they're posting from in the complaint which shows that it does get to the brain but more importantly we have the madison memory study which is evidence that we are advertising on that the product works and is is effective for mild memory problems associated with aging and because  hoc studies in the small subgroup of participants you found some statistically significant it meant that i mean that that's i'm just saying this to point out that these are things that one might debate and that one could  usually receive expert testimony and then all of the all of the materials that they cited for the first time to this court they could have amended their complaint they didn't do it now i would argue they didn't do it because excuse me but why would women the complaint to include expert affidavits and so on i mean not expert affidavits but they they cited for for example they're talking they put two studies before this court that they say criticize use of subgroup analysis i've read what they cited it doesn't say that again why isn't this more appropriate for a determination on summary judgment then because they're in because their theory on their complaint your honor was that subgroup analysis is inherently flawed that it can never be used which is simply not i just don't so greatly increases the probability that some statistically significant differences would occur by chance alone and if you look at the states brief your honor on para page twenty seven of their brief they argue that any use of subgroup analysis is inherently flawed the f t c tries to argue on page thirty four of their briefing on pages two and twelve of their reply they tried to argue that they made a specific attack on our use but there's nothing in the complaint and what judge stanton said was if you've got more tell me what it is but what you're arguing is one or two or three points where you're on it first of all it's not you know it's not one or two or three points it's one hundred participants in a study it's a study within a study with one hundred percent of participants in it and massively positive results not judge a one  but tremendously positive results in multiple tasks and not and you would expect me out of how many tests three out of nine with statistical significance three more where it was improvement but not statistically significant and three others where it was a tie so again their theory is that if you if you're engaged in subgroup analysis you would expect noise and you would expect the placebo group to do better the placebo group never did better the provision group did better on six of the nine tasks and three were high other not all memory that's correct your honor but again the all judge stanton said was you if you're making a theoretical attack on subgroup analysis the f t c just requires competent reliable scientific evidence they've never even required a gold standard study we have one we have a study within a study of the subgroup it's not a small subgroup your honor it's not cherry picked data it's the most significant subgroup people screened on the way in for these criteria it right well sure but they're telling it they're telling us what their memory problems were on the way and there's no reason why they wouldn't tell them before you gave them the drugs well no but we but we do it and this is this is in the record up for that but this but this is this is in the record as well that  their their baseline when when they were screened for baseline given the cox state tests the people who received privilege and in the people who received placebo were scoring the same on the baseline tests so unlike for example the palm wonderful case where the f t c made a specific attack on a study that was used by palm wonderful where they said it's too small of a sample and they said that the people who were taking the supplement started with better values than the people who weren't taking the supplement here there's just nothing in the complaint that's a specific attack on our use other than the number thirty which they don't explain and the fact that they use the term post hoc and i would argue that post doc is an inappropriate term to use when we screen for this on the way into the study are we not supposed to take this complaint i take it that what you're saying is a stand one of more factual aberration correct and it's not enough to just say this methodology greatly increases the probability and judge well yes i would challenge you judge a lawyer to find an example in judge opinion where he found in fact the f t c is is criticizing a highly respected district judge and suggesting and your honor expressed incredulity about this rightly so how in the world could he have gotten this so wrong and the answer is he didn't he looked at the complaint he looked at their brief which was they did they didn't make any of the arguments they're making to you they just said hey we cited all of their advertisements we allege that subgroup analysis is no good and we should be able to get to the summary judgment stage and judge stanton honor and what she what you judge stan that it's not a typical that is an infelicitous footnote i will grant you but judge stanton when judge stanton wrote that he was talking about their argument about the blood brain barrier and again there he was addressing their specific argument the product can't work and so he said if they're going to argue that it can't work because it can't possibly get into the blood brain barrier again he citing the two points of evidence he's saying the dog study says i read the complaint it said that there was no evidence it crossed the but that the substance crossed the blood brain barrier on your own or your conflate i mean i i get it but there's two different arguments here the first is did we ever say we have evidence that a cross is the human blood brain barrier no we only say we have evidence that it crosses the blood brain barrier in the dog's thought of the thrust of all the advertising is still that this is why it works because i don't i don't expect any get to your brain cells i don't accept that your honor but but even even if that were true even if even if we were saying that it works because the entire apple core and chain of proteins gets intact to the brain which we never said but even if we did what judge stanton is saying in that footnote is number one that is true for the dog we have evidence that it that it does get intact into the cerebral spinal fluid and we have evidence of that from the canine studies but what he's saying is if their argument is that the product can't work they've got to wrestle both with the canine studies which shows that it does cross the the blood brain barrier in dogs and they've got to wrestle with the madison memory study results which showed that it worked which showed a statistically significant result in some small subgroups on certain limited tests your honor i i must protest the court's continued adoption of the f t c is terminology of the word small this is not a small subgroup if we had a separate study with one hundred people in it the f t c would be the first to admit that one hundred person gold standard randomized study is more than sufficient we did a study of two hundred eleven people of which one hundred had mild memory problems and that entire subgroup had massively positive results thank you thank you who are here on behalf of the two individuals underwood the men judge cooler and may please the court i'm actually going to cede some of my time back to mr jacobson because i think he had some additional points to make but i just briefly want to raise one of the one of the arguments that we have in the in the brief on behalf of the individual pelleas and that has to do with the what what what my friend has called the nationwide service provision in the f t c act section thirteen b of the f t c act does not grant nationwide service unless the venue clause is also met so the there are two separate operative provisions of thirty five that portion of thirteen b one is the venue provision which says venue is appropriate where a company does business actually  suit may be brought or such person partnership or corporation resides or transact business or whatever venue is otherwise appropriate under thirteen ninety one that's the venue clause the at the end of that paragraph there's a middle clause which isn't in the interest of justice clause which is you can add other people if you can't put them all together in one venue the last clause of that same paragraph says in any suit under this section process may be served on any person partnership or corporation wherever it may be found that process provision that process clause has to relate back to the venue clause and to read it separately we contend is nonsensical this court reached the exact same conclusion  the in the daniel vs american board case which dealt with a very similar venue and service and process provision in the in the clinton act so we just want to highlight that argument for the court all see the rest of my time to mr jacobson thank you very much you have three more i think your honor and i may not take them if the court doesn't have any questions for me but i do want to make a couple of quick points the first is and i want to direct that judge lawyer i want to direct you to their brief to the district court this is jay three eighteen page nine of their brief this is what they point to and they said that they told judge stanton not to consider the madison memory study relating three eighteen they said second defendant subject to the complaints discussion of their clinical study the madison memory study that's the only time they reference our use of the synopsis to refer to the study and then they have a footnote to the extent defendants are arguing that their study necessarily constitutes adequate substantiat legally incorrect they never tell judge stanton not to consider what we submitted they never made any argument they never mention the n i m h study in their brief to the district court at all and so when mr grossman resumes his time even though they do say the defendant that they never objected to our use of the synopsis the this is the only document that exists that summarizes the data they've got the raw data they could have argued again they're not they're not contesting that there's and they're not good this is an important point i think they're not contesting  in that the for for this are absolutely they it your honor if they're going to complain that judge stanton somehow failed to convert this you would have expected them to object to his consideration of the evidence below they never did and so when when mr i want to try answer both questions here but we were not asking him to make factual findings about the evidence in the madison memory study they were disputing any of it they're not contending that we did the study had a bad methodology they're not contending that the data is wrong they're arguing that because we engaged in subgroup analysis it's inherently unreliable but they're not contesting anything that's in that synopsis but and then with regard when mr grossman stands up again i would ask him the following one if you were in a hurry because you're thinking that we're out there deceiving consumers why did you never move for an injunction why you never sought an injunction because they can't meet the standard number two did you actually tell judge stanton that he can't consider any of this evidence did you argue against the study did you argue against the medicine memory study the answer to that is no and the third is if you have more to say as because they have a lot more in their brief to this court than they pleaded to judge then why can't you will mend and the answer to why can't they amend is they don't have their own commission support for this lawsuit this was voted out in the waning days of the last administration by the two democratic commissioners left standing they would need to go back to the commission for an amendment and they can't and so here we are they they rushed to this court with an appeal suggesting the judge stanton got this wrong when judge stan knows how to read a motion to dismiss i mean for heaven's sake and judge stan got this exactly right looking at looking at their complaint and saying if you've got something to say about subgroup analysis you've got to say it better than this i just want to say before you sit down that i think the political party the members of the commission have nothing to do with whether privilege and improves memory and i'm not saying they do a reset you suggesting that it's politically determined thank you the few points i want to address and the first and this is a starting point in any advertising case we have to look at what quincy actually said to consumers in their informational on page one hundred sixty four the joint appendix it says no matter our levels of health the key is that the vast majority of people get better very quickly that's not a claim that only the members of the zero to two subgroup saw improve memory that's a claim that the majority of people who take private prove memory i do not true and i'd also direct the court's attention to progress thirty of the complaint because mr jacobson likes to say that the complaint lacks substance of allegations peg of thirty of the complaint features a chart showing what it purports to be improvement in memory for the sub for the general population right and it's at and this chart if you look at it it has days eight thirty and ninety conspicuously absent from this chart is day sixty and the reason for that is that a day sixty people taking provision were actually doing worse than placebo moreover the people in those that this advertisement depicts improvement as if it were for the general population there's nothing here about zero to two subgroups there's nothing even specifying mild memory loss but what's more your honour's the question in advertising cases the court has to match the advertising claims with the science stage and support and it's not just the science that stayed in support that's a question of fact it's court is going to construe the advertising claims and how the court is going to construe the intended audience of these ads mr jacobson used the synopsis in order to establish that the relevant population is only the people in their subgroups that's a convenient assertion which appears not to be matched by the advertisements that this court can can can review on their face i'd like to next talk about the synopsis very quickly the synopsis is not the study that synopsis does not it to be published in a reputable peer reviewed journal so what we refer to is we conducted a pretty complain investigation and we have tamed underlying data we obtained clinical trial protocols and we have ten contemporaneous write ups of the study not a document prepared six years after the fact on the eve of litigation we relied on the material that quincy relied on when it performed the study but i can't stress this enough this document that quincy continuously refers to as the study it's not the study it doesn't contain any or analysis of the results of the study the same way it does its chosen decision calling it a synopsis but there's an underline study but if right but if it's not even authentically a synopsis if it doesn't summarize the actual results of the study the only thing it says about the study is in one sentence w constructed what the study is but when we referred in our brief below to the madison memory study we're not conceding that that document was the madison memory study we're referring to what quincy said in its ads was the madison memory study quincey use the term medicine memory study and it ads which worst which were released years before quincy prepared that document that it submitted to the district court for the purpose of controversy in the inferences of our complaint and what you comment on the canine studies in the blood brain barrier i i have i have several comments you honor first quincy is disclaiming making a representation that the blood bridge that the that the protein crosses the blood brain barrier in humans that's a question of fact but that but that representation about the dog study it appears on a website that's trying to sell provision to humans and only humans why would he specifically refer to that these mean animals to of of course your honor but it's a question of fact as to whether or not quincy is describing those animal studies in an attempt to get human beings to buy the product and thinking that they can draw an inference that the product will in fact work for them and if i see an ad that tells me that it's based on hammel said that's going to make me think twice but maybe not i don't know well well at least i know that it's based on that most of what the law is well for the representation that's based on the human stuff as we also pointed out in our in our brief that court had two things the court had no canine studies before it and second the f t c will dispute a trial whether refer to canine studies which is further evidence that it was inappropriate for judge that for the judge below even to even talk about what's conflicted by canine studies the complaint doesn't make allegations about that the complaint says that in other research quincey conducted it learned that the protein doesn't cross the blood brain barrier in humans so chilly you would be in a position of a menu complaint and the further allegation that it doesn't even do that or it's we only need to plead enough facts to make the claim plausible and here the court was required to accept as true that not only did quincy lack evidence that the product crosses the blood brain barrier and dog in humans but it knew from its own safety studies that the product cannot get to the brain it knew from its own safety studies that the only theory that ever articulated for how president could possibly work is not true and the court was required to grant that that inference in our favor not only for that being allegedly a misrepresentation in its own right but it it creates a cloud over all of quincy's representations about whether previn can improve memory so unless the court has any further questions i'm more than happy just to order the to ask the court to reverse in order to have so this case could be fully tried with expert testimony thank you your honors have two brief points first in response to your point about the blood brain barrier and whether the disclosure of canines that ease would would convince someone or suggest maybe they shouldn't buy the product or cause them some skepticism what the court is looking at under the f t c act is the net impression of the ad and the disclosure of the canine studies as alleged in the complaint is in a single piece of website material but it is nowhere else accompanying statements such as on the packaging itself that apple core in supplements proteins we lose as we age or in the t v ad that look at the total mix of information that's available to the consumer there that's right it's net impression here but but something akin to total mix that might be for of extra record evidence and we think that they do we do say the ford case from this court in our amended reply brief at page eleven no five that says that the arguments to this court may not be identical to those presented below so even if our broader argument that the court  not consider any extra complaint evidence at all this court considers too broad to capture the attack on the synopsis specifically this court should not consider that argument to be forfeited q thank you