that they can profit off of this these lies have no place in society and in fact they are specifically prohibited by ohio's consumer sales practices act the district court correctly recognized this in allowing the individual c under ohio law if you have a contract you can't bring in or draft a regiment quite correct correct and we would dispute that there is in fact a contract here at this point the sides both parties disagree as to whether there's a contract you they have an image of they were c and argue that that form the contract we did in our complaint yes brief and the verified complaint in ohio correct yes your honor and then we abandoned that claim on the briefing the motion to dismiss so when there's a disputed and furthermore the defendant disputed that they ever provided a contract for the discount so when there's a disputed claim as to the contract you have to have a valid contract to actually covers that particular subject in order to bar the unjust enrichment claim further even if you have a contract so let's talk about that ok you have a valid contract and it says i buy the speakers for twenty seven dollars right you have a that that covers the coin our contention about the contract your honor is that they promised a discount they offered him a percentage off discount and that was a term of the contract they promised him speaker for twenty seven dollars and they also promised him a discount and that's the part that we are disputing where did they promise in the discount in the receipt because i admit that not in the advertisements your honor in the advertisements they said three hundred dollars scratched it out twenty said and you got the speakers for twenty so we got the speakers for twenty seven but we did not get the percentage off so going to your point about the gover represents a book which suggested retail price and crosses it out and then listed all their price they're committing the same no your honor because the problem here is that they are not explaining what the reference price is so in isolation with just a higher number with across the room consumers can view that as ok this was previously offered on this site or previously offered by competitors at the three hundred dollars price but that's not what happened here so it's misleading in that regard however under the ohio c s p a if you define the reference price if you say this is based on a suggested retail price but this is based on a competitor's price that complies with the law we would not be here today if in fact they had defined what their reference price applies now getting back to your point about the contract precluding going just enrichment claim additionally under ohio law if you have a case where there's bad free faith fraud or other illegality you can still bring in unjust enrichment claim even if there's a contract and when in our brief we say to quick color c inverses the fairmont minerals ltd which is no high court of appeals case and throughout our complaint we have alleged review dedicated about one to two sentences to the fraud claim correct corrects the fraud claim we are pursuing on the same theory as the c s p a claim the fact that well there's two arguments to this yesterday claim one we're arguing we're sion looks to the defendants again not the plaintiffs lost the district and martin was focusing on what did the what did the plaintiff lose did they get what they paid for that's not the appropriate analysis under oh yes exactly i'll supreme court precedent there yes there is it's i think johnson verses microsoft which talks about the fact that restitution is based on the defendant's gain instead of the pla loss and we believe that is the law we believe the district as well as the district court in correctly applied that law because it's the focus of unjust enrichment is on the defendants gain do you have a benefit to the defendant yes the plaintiff purchase products from them and therefore the defendant profited off that purchase they have again you need to under ohio law you balance the equities to see whether or not it's unjust for the defendant to retain that benefit here we have a situation where the defendant lied they were offering fictitious discounts to the plaintiff the plaintiff is an innocent victim they just made the purchase so when you balance the at woodies and that those are the facts that we put in the complaint when you balance the equities under a law it doesn't favor the defendant so therefore since we don't look at the plaintiff's loss and the balance of the equities favors the plaintiff we believe it was error to dismiss the unjust enrichment claim on the basis the plaintiff didn't suffer a loss for that same reason for the restitution reason we believe the c s p a claim should also go through thirteen forty five point zero nine b says and i'm quoting the consumer may recover quote damages or other appropriate relief in a class action under several twenty three now the applies to brick and mortar stores and if you look at the actual definition of out of store advertising the target of the not to my knowledge your honor that's my knowledge i mean the actual the language of it says any advertisement message or representation made by a supplier outside of its interior premises part of her back was never inside the interior premises this is a website it's the same thing as a t v ad or radio message where you're in your home you're at work you're viewing the side of the store where this rag is meant applied to an online store i didn't come across that no i do that to the contrary i haven't come across a case that has held that the defendant is asking for and the district court we believe properly found that there's nothing in the in the rag that indicates it applies so it brick and mortar stores so we believe that we do have notice here it's sufficient to allow the class claims to proceed so for unjust enrichment and the c s p claim we believe that restitution is is appropriate now we also believe that damages in the event that the court doesn't agree with the restitution argument we agree that there are in fact we argue that there are in fact damages under fraud in the  they say paddy which is an f stop case it's a page twenty six of the word sure i'm not aware of the legislative history for that specifically but i believe we need to look to the plain language of the regulation first and the plain language of the regulations outside of the interior promised and we've satisfied that so regardless i don't think we even need to get to what the legislature intended because that's the plain language of the regulation and i see em out of time so unless your honour's have any additional questions i will when your honors may please the court jeffrey jacobson for defendant context logic your honor is the first circuit provided an excellent template for deciding this case last week when they decided both the shell was against nordstrom's and molder against coles cases there they held that in massachusetts just like in ohio because you need actual damages in order to bring a consumer fraud claim the consumer fraud claim was out and in massachusetts just like in ohio you can't have an unjust enrichment claim  o sorry you have to run or we provided them to the court in a supplemental filing last week they were just decided the first one is shall this s h a u l i yes against nordstrom it's number fifteen deaths two three five four it was decided by the first circuit on july twenty sixth on the same day they decided mulder m u l d e r against kohl's department stores that was number sixteen dash twelve thirty eight we provided the court with the slip up we didn't have an online site yet ok they should be available now i believe so your honor and so again the first circuit dismissed the unjust enrichment claims in those cases because the natural contract governed the sale here there are two reasons they abandon their contract claim and even you it in your answer i thought disputed that a contract exists we did not your honor and i just i disagree with mr presentation on that point we agree that there was a contract to sell speakers for twenty seven dollars and we sold the speaker for twenty seven dollars the contending that there was a separate contract for a discount but there is there is no separate contract the contract is judge nugent recognize was to provide speakers for twenty seven dollars which we did but he never sold speakers for three hundred of these speakers for three hundred dollars we're out of that was actually if i may that was the basis on which i was going to say that this case is one step removed from the first circuit cases we are not a seller we're a marketplace we link buyers and sellers and so here there was a sell that sold these speakers to mr gurr bach for twenty seven dollars your honor is asking the question that i'm sure is on everybody's mind which is did that seller ever sell that speaker for three hundred dollars and the answer i am forced to acknowledge is i don't know it's not our  term the three hundred dollar piece of information came from the seller the seller listed his item for sale and on that so the statement came from the seller and that's why i'm saying i don't know what was going on with that statement but the contract was to sell the speaker for twenty seven dollars and this and the seller did and by the way by the time mr durbach brought his complaint the price of the same speaker had changed it was now twenty eight dollars without free shipping so at the time the contract was to provide him with the speaker for twenty seven dollars and free shipping which they did so the first day there were two reasons i want to get back to those first circuit decisions because they're they're exactly this case except for two things the first is we're an online marketplace not a brick and mortar store and the other reason is that in massachusetts those plaintiffs were shut out completely in ohio the legislature balanced what they wanted done in an individual action versus a class action  we did not believe it appropriate i guess i'm not trying to get out of the case on the basis that we're that it was not us it was not it was not context logic that put that three hundred dollars there i'm simply saying that here he's complaining about this speaker m context logic generally we have hundreds of thousands of items for sale and you would need to perform this exercise for each item if that was what we were if that was where the case went but so here if mr wanted to proceed with his individual claim which judge nugent allowed him do the ohio c s p a allows him to sue for non economic damages in an individual action in fact it has a pretty significant five thousand dollar hammer in an individual action but in a class action the ohio supreme court said very clearly in the felix against gamli case you have to have actual damages because you're only mention the monsour dodge case and says that well in the ohio c s p a you can get restitution once or dodge the other side of the v in that case was the ohio attorney general i acknowledge that if the ohio attorney general brings an action the ohio attorney general doesn't have to meet the standard for a class action that mr durbach does but mr grbac bringing a class action as the ohio supreme court said very clearly in the felix case has to have actual damages and he doesn't so from my perspective we're basically the first circuit case we've got the same problem with no actual damages we provided the speaker for twenty rich you're right that's what the regulation says i think miss farrow and i agree that there is no case applying that regulation to an internet retailer this is the first case in ohio that i'm aware of brought soli against internet retailer the claims that have been brought and have have been allowed to proceed against brick and mortar retailers they've made the point that these are advertisements placed separately from the store advertising a discount unattached to a particular price but then you drive to the store and there's no there's no sale and so here the only representations are inside the same page where mr durbach visited to buy the item so there is no out of anything it's just right there on the same page where if a store exists dick sporting goods and they sold something on your site and they made a representation that would be an out of store advertisement as to dick's and then even if they sold it on line dick's self both online and in the store so why isn't that not a store advertisement but it's an injury question your honor if they if dick's sporting goods sell something on our site and you can buy it on our site for the price they're advertising that it's not an out of store advertisement come to the store and get something it's a statement right there on the website come right here click the button and you buy the item plain language it depends how you interpret out of store it is out of store it's not an advertisement in the store it's an out of store advertisement it's on a website i don't think it's an advertisement at all your honor i think that's basically where the word falls i think where they where the regulation falls i think that the issue here is we are not advertising something come visit me and you will receive something it's just it's it's the it's the web page where you can buy the item so i don't view it as an advertisement in or out of store i just view it as click here by the speakers for twenty seven dollars and so what you're saying is the purpose of that rag is to prevent people from driving to a store where they believe they're promised something and they can't get what they want which is exactly what the henry against michael's case of mystery really really relies heavily upon did is that there michael said forty percent off sale except there was no sale it was the same price you get every day at michael's so that was that's the main case that they rely on for this and that was exactly the situation that your honor alluded to but that's what he's arguing here is that ninety percent off sale and yet it's the same price you get every day for this well you're  representation is what the representation is the question is did mr durbach suffer any damages as a result of the statement and can he therefore bring a class action under ohio law and the answer is that because he bought the speakers for twenty seven dollars doesn't contend they're worth less than twenty seven dollars and doesn't contend we promised him a price lower than twenty seven dollars he has no damages that's why the class claims go out that's why the first circuit dismissed all of the claims in the show with some older cases i have nothing further if a court is no further questions i want to start first your honors about talking about the first circuit decisions first of all the first circuit decisions i will have been have not been followed by the ninth circuit they took a different a different approach and no house versus coal so the first circuit isn't like the holy grail in this area of the law more importantly however in the oral statute is it closer to the california law or closer to massachusetts i don't know and that's crow versus fred martin motor which specifically held that the failure to provide a discount constitutes damages under ohio's consumer sales practices act the district court did not address this case in  fact one of the cases that we've lost on have just have really distinguished this case at all and there's no reason why it shouldn't apply to the court in that case specifically looked at what do actual damages mean under the c definition peculiarly losses of any type compensatory direct in incidental or consequential looking at that language the court then said the failure to provide a promised discount constitutes damages that's ohio case and point so regardless of what the first circuit said about massachusetts law we have an ohio case which says yes in this situation there are there are damages the other reason why we have damages here is that the f t c has weighed in on us this isn't some trivial thing to not provide this discount and per revised code thirteen forty five point  well under the under crow it was she was promised three thousand dollars off she wasn't given three thousand dollars off we were promised ninety one percent off the purchase price we were given ninety one percent off the purchase price because the higher  completely fictitious as we plan our complaint it wasn't used by it wasn't used by competitors so we believe that it is in fact concrete additionally as the f t c has said if the being advertised is not bonafide but fictitious for example where an artificial inflated price was established for the purpose of enabling the subsequent offer of a large production the bargain being advertised is a false one the purchaser is not receiving the unusual value he expects there not receiving the value they were they were looking out of an item that was marked with a much higher price he didn't receive an item that ever had had been sold at that much higher price instead he got this twenty seven promised and that's what we're contending the damages are forty seven dollars right he was promised a discount of ninety one percent promise to us but he he the list price of the speakers the selling price of the speakers was twenty seven dollars yes he paid there's percentages off minus ninety one minus seventy whatever it is yeah and then you click on it and then it tells you what that percentage drop discount is by by the higher reference price and then the selling price so under that theory car that was only available at a certain credit score that was part of the complaint in that case yes and on cross appeal the defendant had argued that the plaintiff was not entitled to treble damages i think with respect to the discount that wasn't provided and that's where the court looked at what actual damages were and analyzed it so you're saying that that you agree that that