voltage regulators that at bell bought from fairchild war the factor thousands of them failed fairchild in the district court say that we needed to prove foreseeability in order to win that there is no defect unless a manufacturer could have foreseen the defect no matter how bad the problem no matter of the product failed completely but there are two types of warranty claims in massachusetts toward and contract and foreseeability is limited to tour cases involving dangerous products and personal injuries in saying that that's a too so it's like most of the states fairchild it confirmed in its stipulated facts that the or its proposed findings of fact that we that is ak bell used the voltage regulator in a typical backyard and through four five one which is statements that we used in a typical manner and in fact the testimony was that as well so now you mention heat and what you might be as an agent that's certainly an important part of it but not necessarily and here there was lots of record in fact most of the trial was on this the foreseeability issue wasn't really part of a trial and it somewhat surprised us but we felt for instance service to the users of microcircuits manufactured by fairchild semiconductor corp they are telling us and everybody else who read this including the subsidiaries that this was their product was that before or after the fact that this was in the midst of the before or after the sale on this is after the particular sales that gave rise was part of the commercial relationship however this is a type of unless you're saying we've got a case of an undisclosed principal then don't even need to restrict yourself to communications that manifested that their child career or hong kong were authorized to act on behalf of want to say hey i was dealing with joe and joe should be treated as mary's agent you would normally say because mary told me joe was her agent because mary new job was telling  customer that these are fairchild products you don't have to distinguish between the various subsidiary the foreign subsidiaries and these are all findings of fact that are not disputed by fairchild in terms of judge casper's decision if you were to win on this first claim what's new left for us is the current theories of misrepresentation claims is that  nature of his claim for misrepresentation are you saying it was a presale misrepresentation yes it was a there's a few things going on only address that a very narrow question you're talking a presale misrepresentation is industry practice for a seller to change the part number when it changes the part thirty five they had reports in the field from their other customers saying that there were problems with the drop to date to later and that they were going to try to fix it they didn't tell us that so they should've told us that while they continued to sell us the defective voltage regulators but i really think the more important mission happens when they decide they are not going to sell the defective vulture of a year it any longer and we've thirty five and they do that very quietly they don't change the part number they don't think of hers post any sales issue in this case right the potential defects and did not tell us that it went as we have anything in the record that indicates at what point it occurred because it can only that apply to those roles that occur after their awareness that is in starting i think in around may and i get the exact date that in around mag which is before we thirty five they began the other customers began to run their tasks did you make an argument to the district court that there was one of the reasons why you should win in a will to defeat there are several joys of an argument but we said that there are a number of different one and that whether or not we we certainly told the district court that there were as i think we try to make clear here had they told us and we thirty five everything would have changed now they're still selling us products we still have a commercial relationship with them so they're selling is now the non defective on this and nothing to figure out presuppose still distinction makes sense in this case or i don't think so your honor i guess it is i'm not i'm just not i think it makes sense because i was really trying to answer your precise question but the real problem here is that we introduced expert testimony to say stair trial had a duty to let us know about the defect even after they sell the product we have expert testimony that said that would you have any helpless on the legal you have if to reveal all the material fact that court we made the omission argument but we never parse it that carefully with with the district court but we did say that there are arguments we said that they had a duty to tell us about the defect and had they told us about the defect we would have done something and the problem is judge casper decide the entire case on a reliance theory that didn't make any sense to us i can try to parse through it but she says we couldn't have relied on their silence because two years before they sent us a product change notification that informed us of a different change that doesn't make any sense to us and that's really the only ground that she granted their motion for summary j same that i think that is for a reason how we're using you she she said that we received conflicting information she said we received conflicting information two thousand and eight that there was going to be a change i think the corps understands of foreseeability requirement was misused here and we think this is a contract play casement and we should win on the breach of warranty and that the court should reverse the summary judgment motion allow us to go to trial on a friday night thank you morning in may please the court before i launch into my presentation i do want to address the issue that was raised by judge bear and i think if you go to footnote nineteen of our read brief it's clear that both the restatement and massachusetts law may clear that there is no if we're coming to the end of our ways over the last month of it even though i'm still dealing with the same person and even though i know i've sold you all that other stuff and even though we're dealing with the exact same product i get a free pass i don't have to know of any case that answers it one way or the other and i'm just trying to get a sense of does it make a lot of sense at least in the ongoing relationship like this to think that somehow now that we're down the last one or is any reasonable way to distinguish a ongoing relationship here i mean and to be clear all of the shrunk i voted regulators were sold by the time that that plane tis view the the issue became live and frankly under a judge has to they're saying that the sales continue through thirty five and the first report of a defect from a customer came in in may two thousand  be seen to focus more on your decision in july and august yes i guess i would say two things here first it's it's clear from the summary judgment record that the report that came in was for a different part and in fact if you look concept of an ongoing relationship in a situation where you have a manufacturer that is selling millions of parts to hundreds of different buyers press thousands of different buyers is just too inherently unclear to draw a line there that the only line the courts have drawn i think really the only reasonable line a court can draw is the particular cell for the particular part and i point out in page forty five to forty six of the record that's in the complaint plaintiff's state that the sales were complete by the yes and i think the reason you can do it is because in messages this case well i mean i would say your honor i guess i guess i would some i take issue with the point that there's no mass case law but addressing that issue because the mass cases and the restatement both say that they don't say apart from their misrepresentation claim of omission they are also making it affirmative misrepresentation and they contend that that affirmative misrepresentation claim occurred prior to at least some sales so minors my understanding is that there affirmative misrepresentation claim is that we failed to tell them that the part changed or at least failed to change the par and they made the argument that with respect to the failure to disclose it was at least some pre sale failure to disclose because it was a point in time they became knowledgeable of the defect and did not make them aware of it what's your answer to that is the grounds for vacating a summary judgment on the misrepresentation claims so as i understand the it as i understand their claims  my understanding is that the the the switchback a failure so this close was all posts i don't understand there to be a presale failure to disclose to the extent they are so i would say this to the extent that there was a failure to disclose we make this point in our brief that goes to the n h s and this is the point that when i think such pass was going to our reliance when check for problems and you happen here as happened here and you don't check you can reasonably rely on silence about problems that you didn't check for and i think that's the answer to your question to the extent there was some obligation to tell them before cells were made of these problems that may or may not have existed and just after found it while fairchild didn't know about i think that would be the answer to go back to issue one i guess i would start i want to start with facts just casper with industry standards and produce no failures when the part was tested and just cast refined fine want to set and they'll go the park fail for distant different customers in different environments the total failure rate was below the industr normal failure rate she also found in finding one seventeen that actos problem may have resulted from extreme heat in act all soldering processes which i think goes to the point was made earlier about was there something unusual about this and there was a finding reasonable fitness in the us are your decision and the page eighty five a service court where it product is reasonably fit and that's the language everybody agrees here comes right from the statue reasonably fit for its purposes if the design prevents industry standard testing and facade defines that as passing the reasonably foreseeable risk test to go to your example your honor if you had it if you took a glass and you put it through some sort of it's in that class passed all the industry standard testing and you pour water at it it worked fine you went and you put it in some sort of extreme regime that afterwards caused the bomb to fall and changed it certainly the implied warranty only applies to use reasonably be foreseen but judge kasper said something different she said that the defect wasn't recently foreseeable and it seems to me that a very different thing if we disagree with that  then we get back to whether the use could have been reasonably foreseen and those findings you cite named well support that finding for you that they put to use that wasn't for scene but she never so held that insulation the insulation was used for perfectly forseeable use that uses insulation and but it still caused a problem but that problem did not trigger liability because the problem was unforeseeable if the the issue then becomes if the issue is i have to have to insure against any failure in any reasonable use for whatever the cause in whatever the circumstance then it becomes one of product the only way i can meet that liability standard is to produce a product that never fails and that's perfection and the cases on implied warranty make clear that that is not the legal standard so you end up then with a situation of wealth a standard isn't perfection and we know it's not perfection because the cases tell us it's not where do we put the bar of fitness i think the only rational place to put the bar thickness fitness around are is where the cases in material thing because then you said it was then you still get back to the issue of i have to prevent my product from not failing i think it would be helpful to me as a purchaser if that's true then  a this isn't a question of a manufacturing defect where something was wrong in a product built into fire burst into fire it's important to remember all of these voltage regulators worked they worked when they were put and the p s use it didn't even just a minor defect if it's not something that would really affect the use of it even though it's not perfect find once it does not within the scope of the warranty but if the kind of thing that you can see is materials it's just not a useful product that i purchase then that's what the warranty is i told you it would be and whether i foresaw it would be as bad as it is really matter so i think the response to that your honor would be that the standard cannot be materiality under the law because if contract so remember we're talking here about an implied warranty and it's an implied warranty claim based on the same statute just sounds in contractor sounds and tore the only distinction course that made between those two the statute of limitations  rationale of the estrace he gives is in the salad decision and they say well the goal of the law and they're not talking about contract law here that talk about tort law here they're just talking about wal the goal of a law is to induce conduct that's capable of being performed and obviously the claiming well wait a minute we still have a claim because all we did was lose money and that your honor i think can't possibly be correct