good morning may please the court alexander t s d for fleming christianson in the class of possible i'd like to reserve three minutes for the issue in this case is whether payday lenders and their marketing consultants can be held liable for a text message spamming campaign could i ask you a threshold question which which was just puzzling me which is that with respect to click your client stipulated the entry  of summary judgment so basically agreed that there was no genuine issue of material fact with respect to click so how is it that is what is the status of click media now i don't i'm not seeing any basis or authority that would say you could pursue an appeal of the stipulated agreed to dismissal of or suburb and summary judgment of click me to i guess i want to be clear about what happened there so we slightly differently situated the media hadn't moved but the conclusion that we came to looking at the opinion and looking at the way that we moved for reconsideration was that under under the way that that the district court had viewed the evidence the same same conclusion would have happened with regard to commute and look my understanding is that quick media is effectively broke the really so so are they out of the case now i mean you in fact there were there was a right so why cut my question is this quick media seems to me differently situated maybe irrelevant because they're broke maybe similar differently situated in some of the other defendants because it dealt directly with a c referral but to the extent that you agree that the judge's ruling covers quick media i mean you waive that kind of argument that somehow cook media had an agency relationship with the were for since you you didn't you didn't make an argument below as a separate reason for liability against quick media we made the argument below that so quick media did not send text messages but he said it had to click media is the only party with a direct to click media that applies to all the different you know it's i mean they had you know they have got lightly different interactions but legally it's the same argument you say so you're not arguing that they had a different relationship with that all the other defendant no no we're not we're not arguing that ok let me ask you this then the because the the alternative or one of the arguments that that's being raised here on appeal relating to restatement of agency four zero three so so the  and the lenders and lead pile didn't know about a c referral and they see referral didn't know about them why isn't that just squarely within that portion of the restatement there's discussion in the comments about  regard to unknown agents and principals you don't have to know specifically who the person will this says the act isn't ratified i'm just reading straight out of for a once as what the cation is and it says it has to be comments lest somebody at least purports to be an agent then it's not ratify a bill x y are we done they did in fact it's so easy referral did in fact purport to be an agent and here and they re purported to be an agent of the lenders and lead pilot he did they didn't even know who they were or they had never heard of them they didn't have to so this is at the this is at record thirty three to three you can give the purport i just want to be clear that your position is you compete purport to be an age of but how are they purporting to act as an agent of the lenders if at most what they did was send people to click medias website so the way that it was designed and said this is record thirty three to thirty five when you click on that link in the text me is you say that a c was purporting to act as as the agent of the lenders i'm saying what what evidence is there that they purported to act that if the only evidence is that there are ads directed them to a to a website run by quick media which also didn't mention the lender's correct the website so it didn't say it on there what it did was send you directly to the right so the idea is they wanted to be as soon as that is that the only evidence that they were acting as the agents of the under snow there's also evidence that they wanted this discussion about it being seamless so their concerns and there's concerns in some of the deposition testimony about people having to go yours you know right but from the perspective so from the perspective of the consumer base the referral wanted them to believe as though this was they were talking to the lender from the beginning they did not want it to appear as though they had been talking making that argument because you're only may because you're only a tech you're saying the same arguments applied everywhere so they were purporting to add i don't know i can't see any evidence that cook media that you were for a was purporting to act as the agent of any of the lenders or the other marketer so you see referral knew that they were directing people to these lenders and they're the ads the horse that is sitting there what's the what's the evidence that they were purporting to act as the agent for the defendants to put aside what people knew or should have know heck of a deal i ratify and so but i have to be purporting to act as her agent so i'm looking for evidence in this record that they purported to act is the agent of the defendant the evidence is the way that it is set up as i said is is entirely seamless so that once you get to that lenders form so you fill out the form in the smart smart credit solution website you move to the lenders website they it is set up that way specifically so you thought that you were talking to judge a  a serious question with as to whether it's someone purports to be someone's agent it's have they set it up such that the person receiving the communication looks at it and says oh yes i think i thought that i was talking to this lender the whole time and that's exactly that's exactly how this is set up they way they want they want people filling out these applications there's talk in the record about about trust right you want they want you to think that you've just been filling out forms from this lender the whole time specifically so with regard to credit payment services they're effectively the same company as lee pyle they're owned by the same person carry brown they were both carry the brown and c p s were both convicted of felony usury in the same case and carry brown has admitted were pointing to certain e mails and the like but they all were aimed at saying click click maybe as a competitor maybe they're trying to stab us in the back and let's keep a close eye on them i didn't see anything related to a concern about violations of the t s e p a or that improper text messaging might be going forward so i think yes in the questionnaire page seven sixty seven the question asks what kind of traffic do you have that is they're asking how do you bring in detention customers and there's testimony in the record seven forty seven that they wouldn't do business with someone who didn't answer that question or said they were suspicious of quick media but first but that doesn't answer face  have the inference is that they're they're asking about what kind of traffic you have read how do you direct customers your way and so why would they ask that question well it doesn't really line up with being concerned about about what they don't do business with the company so lead pile says we're not going to do business with anybody doesn't fill out this small thing that in the case of quit media that wasn't true they kept doing business with them they kept taking click media's money they kept taking a cut of this getting letters money excuse me they kept taking a cut of the fees they were getting paid the lenders kept on taking the benefits there was no that they didn't stop and so yes they that was enough information that they should have said whoa wait a minute why are they answering this question directly address something this looks like this sergeant shorts defense i know nothing can the statute be evaded so easily just simply by having layers of consultants and more consultants and saying don't tell me anything i don't know didn't know anything and there's somebody at the end of it who baits the statute is that what is that what the upshot of the district court's decision is no your honor  fact the undisputed evidence here can only establish one conclusion as the district court found which is in fact the defendants actually did know nothing and there's no evidence that they took any steps to deliberately a lot of voiding  facts so that they could manufacture this giant scheme to avoid knowing whether or not they see referral who is the court already pointed out they didn't even know of was allegedly violating the t c p in terms of legitimately contacted these potential plaintiffs with those potential plaintiffs that given prior approval to have contact yes but and again question is how likely is it that you would have gotten that number for us how many people want to give out their cell phone to get a loan you know i had not sure how to answer your honor other than what's in the record and let's assume make up a number i don't know what the record suggests several hundred thousand leads it's pretty unlikely is it pretty unlikely that several hundred thousand people have signed up in consented to to get text  not did not give rise to exactly the volume of lead standing alone would not arise to the level of suspicious fact it's required to put somebody on notice that they have a duty to investigate further would you let's  assume in the absence of an agency relationship right the way this thing was set up would the lenders have had a duty to investigate further had some fact come to their attention that might lead a reasonable person to believe that  had lodged complaints with the lenders that they had not given consent to be contacted with respect to the loans but there's nothing in the record to suggest that even one bar lodged that type i like that the legal position in this case to be it so there's really two alternative arguments here the first one is that there must be a preexisting agency relationship for liability be triggered period and actually codefendants council is going to address that issue in more detail in the time i'm  reserving for him but then the second argument is the one that i've i've been focused on in addressing the court's questions which is you know you can't under the restatement you do not have responsibility for acts of agents to touch on that further but because plaintiffs argued that a preexisting agency relationship is not required in their brief we also addressed their arguments from the standpoint of even if they're right on that point and we say they're not we're still not liable because there were no material facts in the record that they can point to that show that we should have been on notice other than the share volume  your honor i don't know if there's anything on the record on that point how much time did you want to reserve for opposing counsel i was going to reserve for three minutes but ok done with questions for me i can  understand where here or ratification theory so your argument probably correctly goes to that but i am concerned about the notion that the act could be so easily determined that c p s received four leads and that's it from the text message campaign this text message again was only thirty day period the numbers that the plaintiffs have put forth in their briefing the thousands  of leads and all that is outside the class period so that's a little bit misleading but that is uncontested that certainly pioneer any sort of i guess your position is given the small number of leads  weren't a red flag for your clients there was there was no spike there was there were no leads that we received and yes i would agree with you that there was no red flag on behalf of our clients that would lead us to investing let me let me ask about click summary judgment in favor of quick media i was not able to identify any cases that said we would be able to hear that appeal at context and your honor might be right on that i to be honest i don't know the answer to the panel as i know the questions i apparently not thank you thank you very much and you have some time for  disagrees with mr christiansen's expert and came to a different conclusion and she says she doesn't know why but that's a classic battle of the experts so for for for you know to get up here and say that there is no disputed issue of fact is simply wrong  with regard to the preexisting agency relationship reading it that way effectively reads out ratification as a possibility but ratifications a very narrow theory and that's the problem  authority and you say that's ok that's right if occasion but why why does the theory need to be broader than i see the amount of time can i answer the question so it doesn't it doesn't have to be broader than that but it's the purporting to act as an agent that gets you there so with the preexisting agency relationship it seems to imply that there requires an agency and outside the ratification context just means authority actual authority or apparent authority what ratification says is well no no no you don't necessarily need those things at the time of the act if it is later ratified that gives you the authority so to say a preexisting relationship is required the reason that you read out there required a priest in the relationship  ery broadly that if the principal gets any benefit then the person who caused that benefit purports to be an agent is that your it is it is if their conduct demonstrates that they that they purport to act an agent even with no authority